Human Rights Goes to War in Myanmar: Complicity, Facilitation of Gross Violations, and the Norway Pension Fund Global's Exclusion of Korea Gas Corporation (KOGAS) and GAIL (India) Ltd

Commemorative Throne of Nafoyn (Queen Mother) Naya; 19th c. Cameroons; Berlin

Large states tend to fight wars in the classical style--using troops, seizing territory, and then deploying more advanced tactics now common to multi-generational warfare.  Smaller states also go to war--but they attack from the flanks. That way they can pretend to avoid war while actively engaging in its forms that have neither been reserved to first tier powers, or otherwise been encased in taboo by national narratives of pacific traditions. 

Norway has gone to war against the government of Myanmar--perhaps its people too, but at least in the minds of the Norwegians elites one can parse a difference. Norway engages in battle with the weapons it has on hand.  And what it has on hand is money; lots of money. And it has an organization capable of giving that financial power some direction and effect--the Pension Fund Global.  In the process, Norway s contributing in significant ways to the development of liberal democratic state  principles around the use and targeting of economic activity as a means of projecting power across production chains. 

Among the most interesting advances in which the Ethics Council and the Pension Fund Global appear to be playing a vanguard role is in the development of a set of principles around complicity and facilitation of human rights and sustainability breaching conduct. I have written about this work of the Norwegian Pension Fund Global apparatus in gestation since at least 2014: here, here, here, here, and here.

Lately it appears that the apparatus of the Pension Fund's governance apparatus has been focusing more intently on the Myanmar campaign--and in the process refining the framework within which its actions can be routinized. In late April 2023 the Norges Bank announced that, following advice from the Council on Ethics, Norges Bank has announced the exclusion of two companies from the Government Pension Fund Global.

The Council recommended that the companies Korea Gas Corporation (KOGAS) and GAIL (India) Ltd be excluded from investment due to an unacceptable risk that the companies contribute to serious violation of the rights of individuals in situations of war and conflict. Both recommendations relate to the companies’ activities in Myanmar.

In the action against Korea Gas Corporation (KOGAS) (27. April 2023), the Press Release noted: 

The Council on Ethics recommends that the Korean gas company Korea Gas Corporation (KOGAS) be excluded from investment by the Norwegian Government Pension Fund Global (GPFG) due to an unacceptable risk that the company is contributing to serious violation of the rights of individuals in situations of war and conflict. The recommendation relates to the company’s activities in Myanmar. KOGAS is partnering with the state-owned oil company Myanma Oil and Gas Enterprise (MOGE) in the Shwe gas field offshore Myanmar. In February 2021, the armed forces in Myanmar staged a coup d’état, after which the military has intensified its extremely serious abuses of civilians. Through its activities in the country, KOGAS provides the armed forces with substantial revenue streams that can finance military operations and abuses. The company’s business partnership with MOGE represents an unacceptable risk of contributing to extremely serious norm abuses in the future. The Council on Ethics issued its recommendation on exclusion on 29 November 2022. Norge Bank announced its decision to exclude the company on 26 April 2023.

The Council’s recommendation used the opportunity to reapply and to some small extent refine its developing notion of facilitation as complicity:

As in previous recommendations, the Council has attached importance to whether the company’s business operations in Myanmar help to strengthen the Tatmadaw’s financial capacity. The Council also takes the position that any business partnership with entities controlled by the armed forces constitutes a particularly high risk of contributing to abuses perpetrated by the Tatmadaw. A material factor for the Council is that the UN High Commissioner for Human Rights advises against any economic cooperation with military-owned entities, that sanctions were imposed on MOGE precisely because revenues from such companies boost the Tatmadaw’s ability to commit serious norm violation, and that KOGAS cannot point to any measures that reduce this risk. Since the military coup in 2021, revenues from the oil and gas industry have been the Tatmadaw’s largest source of income

In the action against GAIL India Ltd (27. April 2023), the Press Release noted in a similar vein:  

The Council on Ethics recommends that the Indian gas company GAIL (India) Ltd (GAIL) be excluded from investment by the Norwegian Government Pension Fund Global (GPFG) due to an unacceptable risk that the company is contributing to serious violation of the rights of individuals in situations of war and conflict. The recommendation relates to the company’s activities in Myanmar. GAIL is partnering with the state-owned oil company Myanma Oil and Gas Enterprise (MOGE) in the Shwe gas field offshore Myanmar. In February 2021, the armed forces in Myanmar staged a coup d’état, after which the military has intensified its extremely serious abuses of civilians. Through its activities in the country, GAIL (India) provides the armed forces with substantial revenue streams that can finance military operations and abuses. The company’s business partnership with MOGE represents an unacceptable risk of contributing to extremely serious norm abuses in the future. The Council on Ethics issued its recommendation on exclusion on 29 November 2022. Norge Bank announced its decision to exclude the company on 27 April 2023.(Ibid., summary)..

The Council's recommendation also used the opportunity to refine the facilitation/complicity standard:

When assessing a company’s contribution to abuses, the Council emphasises that there must be a tangible link between the company’s operations and the abuses concerned. Furthermore, the company must either have contributed actively to the norm violations or known about them but made no adequate attempt to prevent them. In the Council’s opinion, if it is not possible to prevent the norm violations the company must in general seek to withdraw from the business. (Ibid., p. 2); language also used in the Gail recommendation, p. 2).

The action, in part, is meant to facilitate the efforts of the UN Human Rights apparatus (Geneva) to destabilize the military which seized control of the state and who have collectively thereafter been accused of perpetuating significant human rights violations against individuals and groups. 

Again, what makes this of interest beyond the small circle of people interested in whatever it is that the apparatus of the pension Fund Global has to say about anything important, is that it has actually been wrestling, unlike other bureaucracies that ought to know better, with the issue of the scope of activity that ought to be subsumed within the scope of activities that ought to constitute actionable complicity like conduct. The idea of facilitation as a standard of complicity has important consequences. 

These consequences in eight brief reflections that follow below. These reflections touch on the drift of human rights and sustainability regimes toward sanctions based cultures; the effects of moving from a causation to a connection standard of culpability; the dangers of hard wiring the calculus of human rights harms; the consequences of human rights politicization and weaponization; the missed opportunities for human rights mitigation of politically driven rigidity; the likely effects of this drift on the operation of mandatory human rights due diligence regimes (especially in Europe); and lastly the consequences of pursuing punitive rather than capacity building and solidarity enhancing strategies.  New tactics of warfare, as always, produce a rich array of consequences, consequences that Norway might be well advised to consider as it plays at war lite.  The decision may well be to enhance this strategy. That is fair. But hopefully that will be done deliberately and thoughtfully.

1. The trend toward the conflation of sanctions actions and human rights due diligence continues to intensify. Read carefully, the absolutist approach, one with an effective presumption of facilitation or complicity with respect to any economic activity that can be connected with identified organs of a state apparatus the overthrow of which is sought as a matter of (human rights) policy, suggests that the sensibilities of the sanction appears to have become a significant mechanism for the conceptualization and application of human rights norms and frameworks. One moves here from the task of reforming social relations, to the mechanics of conflict. Where, as here, such conflict driven strategies exist in a context in which there are developing powerful normative alternatives, the effect may well be to push states and business away from the weaponized system and toward its alternatives, especially for developing states now considering the value of participation in the Socialist Human Rights project offered through the Belt & Road Initiative (Missy Ryan, "Global Powers Sidestep U.S. Feud: Key Nations Weight Russia, China Ties," Washington Post (30 April 2023). .

2. In this respect, at least European appear to be taking the toolkit developed by the United States and repurposing it to advance human rights and sustainability objectives. In a sense, these represent not merely aggressive but conflict facilitating measures against adversaries short of physical combat. At the same time the U.S. has also sought to repurpose its sanctions regime by utilizing human rights and sustainability markers as a basis or trigger for sanctions based action.  Clearly its origins in gross human rights violations (Mr. Magnitsky, for example in Russia; sanctions law here) are undeniable; but its convergence with interest of preserving the ideological integrity of liberal democratic notions of human rights and sustainability are now to in the open. See here. 

3. Facilitation/complicity appear to be having an effect on traditional notions of causation.  It is not that causation is no longer a necessary element in facilitation (though at its limit that is the direction that the discussions appear to be going) but that the nature of the connection between corporate activity and the human rights breaching activity now appears to be viable even if there are separated by an increasing number of intervening steps. Causation in its new guise as a "tangible link" appears open to the possibilities of much broader interpretation. Better put, perhaps, the "tangible link" standard appears to substitute a connection test (to the wrongdoer) for the causation standard (to the wrong) with respect to which connection was one but not the only element of proof. In any case, whatever the actual standard the Pension Fund apparatus appears to be concocting, it represents an exercise of discretionary authority untied to to any disciplinary collective. 

4.On the one hand, the actual knowledge standard floated by GAIL (GAIL Recommendation, p. 9)) was easily dismissed. Corporate responsibility has never been understood as passive; nor its triggering standards grounded in actual knowledge. Indeed the core sensibility of human rights due diligence suggests that the opposite has been the presumptive operating mode of business activity that touches on issues of human rights and sustainability. The issue is not actual knowledge but appropriate assessment of risk in a compliance culture structured on a prevent-mitigate-remedy framework.

5. On the other hand, the Pension Fund Global apparatus lamentably, and perhaps thoughtlessly, gave short shrift to KOGAS' arguments respecting the balancing of human rights harms from severing all connection with Myanmar.

KOGAS maintains that a withdrawal from the consortium by any of the participating companies would most likely result in the shares being confiscated by the Myanmar government, for breach of contract, and transferred to MOGE. This would “inevitably lead to reinforcing MOGE's operational rights and increasing its profits from Myanmar's gas field business.” The company also maintains that gas from the Shwe field is important for domestic power generation and that disruption of the gas supply would severely impact the people of Myanmar. KOGAS adds that the companies in the consortium in 2021 and 2022 have substantially increased the project’s sustainability budget, to provide humanitarian assistance to the country during the pandemic, and that they are fully aware of the “human rights-related concerns of the international community.” (KOAGS Recommendation, p. 9)

The Pension Fund Global apparatus' response was dismissive: "Given the serious nature of the abuses to which KOGAS has contributed, the Council takes the view that no weight can be attached to the company’s assertion that the project has been of benefit to the local community." (Ibid., p. 10). It need not have been.  Clearly, one could make a significant argument that KOGAS' weighing of the quantum of human rights risks of staying versus going were faulty. Or one could argue that KOGAS was not doing enough (by far) to mitigate through humanitarian interventions or compensation.  Or one could have sought significant guarantees of accountable countermeasures and programs. These might have suggested observation and reporting.  Such efforts were zeroed out because the Pension Fund effectively suggested no amount of mitigation or remediation could outbalance the harms against which it was determined to deploy its financial power. The prevent-mitigate-remedy standard--at least in Myanmar--has been reduced to a prevent standard.

6. The objective, then, was not prevent-mitigate-remedy--but the overthrow of a regime repugnant to the Kingdom of Norway.  Fair enough. But in the process, the resulting weaponization of the UNGP framework may have to bear the consequences (The Russian Invasion of Ukraine and Business: Responsibility, Complicity and the Responsibility to Respect Human Rights Under the UN Guiding Principles for Business and Human Rights). In this case, it effectively applied the UNGP 2nd Pillar Guidance on balancing in ways that almost invariably seem to favor withdrawal. That appears to re-read the UNGP's careful balancing of harms--with its focus on prevention ans mitigation where possible, and remediation where are no better alternatives--into a politically driven sanctions based regime.  The weaponization of human rights is now well along--and in this case the apparatus of the Pension Fund Global is perhaps leading the way in developing capacity for all stakeholders in the constitution and deployment of this weapon in the service of their political objectives. Fair enough--but transparency here might require something more than what is put on offer for mass consumption.  And, indeed, the Pension Fund Global will have to begin to think through the bias inherent in its policy application--one set of absolutist measures  deployed against Myanmar and perhaps quite another deployed against the Russian Federation.  At this point all pretense drop of coherence and neutrality in the application of the UNGP and other international human rights frameworks. The weaponization of human rights in the service of regime change might be deployed against a developing state much more aggressively than against a global power, the annoyance of which might more acutely inconvenience the good burghers of Norway.

7. The new standards for complicity/facilitation may well leak into the administrative practices of mandatory human rights due diligence laws. Where (European) states begin to follow the trajectories of aligning sanctions regimes to mandatory human rights due diligence standards built into compliance regimes, there is little reason to suppose that a drift from the balancing approaches of the UNGPs will not be overwhelmed by the politically driven sensibilities of a sanctions regime state. Let me clear, this is neither a bad or thing thing.  It would represent a shift. That shift may be necessary--the global order in which the UNGPs and similar frameworks were conceived is vanishing. And with it, the foundational premises of convergence and capacity building within a unitary consensus based culture of economic activity built into evolving human rights sensibilities. is a shift, though, that within a conflicts and politics driven contexts may produce a tendency toward inconsistent application, and perhaps to abuses of administrative discretion in applying what was once an aspiration for social relations that has become a weapon. In this sense, the Pension Fund Global's apparatus may well be a harbinger of what is more generally to come as the project of legalization of human rights compliance evolves within a sanctions driven environment. 

8. None of this will affect the discursive tropes of either sanctions or business and human rights narratives.  To many within ruling circles (academics, civil society, and officials deeply embedded in  national and international bureaucracies) have a significant (self-preserving) interest in maintain the discursive facade of the early part of this century, even as the world to which it is applies moves on n significant ways. It is in no one (in power) interest to shift the narrative to align with realities.  In part this is understandable--one is not quiet sure what is emerging; even if one is sure that change is occurring. In that context self-protection--individual and institutional--creates significant incentives toward the reactionary gesture.  But then so does inertia, a condition of academic, bureaucratic and political collectives for a long time. One can hardly blame them. Yet that action is itself redolent with human rights breaches--particularly the systemic corruption that itself becomes an increasing impediment to the realization of human rights and sustainability in the contemporary era.