I. Introduction: Disaster Rushed in Without Knocking
On 23 July 2018, when the villagers gathered around the porch to wrap up the day with a good chat, one of the five auxiliary dams of the Xe-Pian Xe-Namnoy hydropower dam in Attapeu province, the southeastern state of Laos, collapsed.Footnote 1 Four days before the collapse, reports of cracks and subsidence started to come through. It should have been enough to prompt evacuation warning issuance by the Xe-Pian Xe-Namnoy Power Co. Ltd (PNPC), a consortium of South Korean companies SK Engineering and Construction (SK E&C) and Korea Western Power Company (KOWEPO), Thailand-based RATCH Group, and Lao Holding State Enterprise (LHSE). PNPC has a Concession Agreement with the Laos government ‘to plan, design, finance, construct, own, operate and maintain’ the Xe-Pian Xe-Namnoy hydropower dam.Footnote 2 The warning was issued, but it came too late.Footnote 3
SK E&C, overseeing construction of the dam, has insisted that the dam failure was due to the localized torrential downpours that flooded the area.Footnote 4 The Laos government formed the National Investigation Committee (NIC) to investigate the causes of the collapse of saddle dam D at the Xe-Pian Xe-Namnoy hydropower dam, and the NIC subsequently commissioned a panel of professional and independent experts (Independent Expert Panel, IEP) to ensure the transparency of the investigation.
After almost a year of investigation, the IEP in its final report submitted to the NIC on 20 March 2019 reported that the reservoir level was still below the dam’s maximum operation level and well below the crest level at the time of the dam’s collapse, meaning that the amount of water collected at the dam during the downpours preceding the dam failure was still at a manageable level.Footnote 5 The IEP made a concluding observation that the saddle dam D’s collapse was not force majeure. Footnote 6
KOWEPO, on the other hand, claimed that the collapse was caused by subsidence of ground.Footnote 7 There also exists evidence suggesting that SK E&C may have caused the collapse by significantly altering the design of the dam to lower the construction costs.Footnote 8 However, SK E&C has denied all accusation against itself, and no further study on the cause of the disaster is known to be undergoing. Meanwhile, the dam construction was resumed soon after and has been in full commercial operation since December 2019, churning out profits for the companies, while none is assuming the responsibility for the disaster.
The case seemed clear enough. The dam had failed, and the official investigation concluded that the dam failure was caused by a human error. There are victims and survivors, whose lives have been affected irreversibly by the dam collapse. The only thing missing, however, is a party to be held responsible for the disaster.
In this piece, we will take a closer look at the Laos dam disaster, its negative impacts on the local community, the efforts made by various civil society organizations (CSOs) to redress an injustice, and the barriers that they faced in securing access to justice for all affected communities. We begin in section II by providing an overview of the actors involved with the dam disaster and its impact on vulnerable people in both Laos and Cambodia. Section III then outlines various strategies tried by international CSOs and obstacles faced in this process to secure access to justice for the victims. Some concluding thoughts are presented in section IV.
II. The Casualties and the Perpetrators
A. The Casualties: Voiceless and Vulnerable
The devastating destruction caused by 5 billion cubic metres of water released from the collapsed dam was severe and far-reaching. The disaster killed at least 71 people and wiped out most of 19 villages, leaving some 14,000 displaced people in temporary relocation centres.Footnote 9 In addition, the flood had reached as far down as Cambodian villages bordering Laos, where 85 per cent of agricultural land was inundated, causing food security emergency. Around 25,000 people in Stung Treng province in northeastern Cambodia had rushed to evacuate to higher ground, and as a result, thousands were rendered homeless, and 26 deaths were confirmed.Footnote 10
The survivors recounting the tragedy expressed a mixture of trauma, exhaustion and fury, accusing SK E&C of its failure to warn the residents of imminent collapse.Footnote 11 The victims of the disaster were very vulnerable people to begin with, many of them being ethnic minorities significantly affected by the original dam construction process, either through the downstream impact or through involuntary resettlement.
Following a visit to Laos in March 2019, the former United Nations (UN) Special Rapporteur on Human Rights and Extreme Poverty, Philip Alston, highlighted the vulnerability of local populations to the adverse impacts of large dams and other infrastructure projects.Footnote 12 He emphasized that this vulnerability was heightened by social and political conditions that constrain affected people’s ability to speak out and access mechanisms to assert their rights. This includes:
… the absence of meaningful complaint mechanisms, the marginality of the judicial system for anything to do with people’s rights, the comprehensive government management of the media, the tight regulation of any potentially independent civil society, and the firm leash kept on foreign aid. The result is that efforts to promote meaningful consultation, to encourage participation in decision-making, to enlist genuine advice and criticism, or to propose alternative approaches, are all rendered difficult, if not impossible.Footnote 13
As of today, most of the displaced have since returned home, but more than 4,000 still remain in temporary shelters because of serious setbacks in the construction of their new homes. For them, Attapeu’s local government contracted a private construction company to build 700 houses. However, owing to various delays (such as material delays, private land ownership issues and labour shortages), it appears that only about 440 houses will be completed by the end of 2021. With such prolonged delays in construction, some of the survivors are resorting to live in small huts in the forest near the camp because the temporary metal shelters are too crowded and hot.Footnote 14
What makes it more difficult for the affected families is that they have yet to receive full compensation for their losses. Negotiations over the timelines for disbursing the full compensation is ongoing. Yet, the survivors are left in the dark about when and if the full promised funds will be provided.Footnote 15 The promised monthly sum for the survivors was 100,000 kip (USD 10.77) in addition to daily food expenses of 5,000 kip (USD 0.54), or about 250,000 kip (USD 26.93) per person per month. However, the survivors say that the payments have been made sporadically at best, which has serious negative impacts on the livelihood of the survivors.Footnote 16
B. The Perpetrators: Power in Number and Complexity
The USD 1.02 billion Xe-Pian Xe-Namnoy Dam Project was developed by PNPC, a joint venture of SK E&C, KOWEPO, RATCH Group of Thailand, and the Laos government-owned LSHE. Four Thai banks provided approximately USD 714 million to finance the project, with 90 per cent of power generated in this dam contracted to be sold to Thailand. The level of involvement of different parties varies widely, ranging from funding to executing construction and operation, but each party will profit from the project – in some cases for years to come. Responsibility should follow profit. Moreover, as stipulated in two of the most important international instruments in the business and human rights field – namely, the United Nations Guiding Principles on Business and Human Rights (UNGPs)Footnote 17 and the Organization for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises (OECD Guidelines)Footnote 18 – all business enterprises have a responsibility to identify, prevent, mitigate and remediate adverse human rights impacts.
Both instruments make it clear that SK E&C and KOWEPO, among others, should fulfil their responsibility to respect human rights by remedying the harm suffered by the victims. Also, both companies should provide clear communication to the victims on the information regarding standards of compensation and remuneration to guarantee adequate representation of the victims’ side of the story, which is essential in providing effective access to justice for the affected. Moreover, the financial institutions behind the project should not avoid responsibilities just because they were not the actual hands who built the collapsed dam.
The Xe-Pian Xe-Namnoy dam project also involved the governments of Korea and Laos, both having financial stakes in the dam project, either by providing Official Development Assistance funding for the project or by participating as an equity investor. Not only that, the Korean government also has a duty to take proactive measures to prevent and remediate human rights abuses committed by Korean companies’ overseas business activities in breach of the OECD Guidelines. To that end, the Korean government should actively support the Korean National Contact Point (KNCP) to fulfil its role as a mediator to resolve claims of human rights abuses against Korean multinational enterprises.
III. Seeking Justice: Lighting up Every Possibility
Korean CSOs assembled a response team immediately after the dam collapse in 2018. The Korean Civil Society Task Force Team (Korean TF) has closely monitored the situation of the affected areas while pursuing various advocacy efforts, such as holding press conferences and lobbying members of the Korean National Assembly. It has also conducted two field research studies in Laos and Cambodia, while the third study could not be carried out because of the outbreak of COVID-19.
However, it was difficult to secure meaningful access to remedy for the survivors without any means to force the companies to answer our call for justice. On 22 January 2019, the Korean TF submitted a letter of allegation to the UN Working Group on the issue of human rights and transnational corporations and other business enterprises (UN Working Group) on human rights abuses allegedly committed by transnational corporations involved with the Laos dam disaster.Footnote 19 A member of the Korean TF was invited to the 2019 UN Forum on Business and Human Rights: Joint Session on Addressing Dam Failures to discuss the continuing human rights infringement caused by the disaster.Footnote 20
Appalled by the delay in restoring the survivors’ losses, a group of UN rights experts issued a joint media statement on 29 April 2020, urging the involved governments and companies to take immediate action to address ongoing human rights violations.Footnote 21 The statement noted that ‘the Lao Government claims to be doing its utmost to help people, but that is contradicted by reports that displaced communities are still in limbo and needlessly suffering.’Footnote 22 The UN experts also noted that ‘the allegations suggest that the business enterprises involved are flouting their responsibility to respect human rights under the UN Guiding Principles on Business and Human Rights. … Since these businesses may have caused or contributed to this disaster, they should consult relevant stakeholders and provide effective remedies to the affected communities.’Footnote 23
In June 2019, the Korean TF filed a complaint to the KNCP against SK E&C, Korea Exim Bank and KOWEPO for breaching the OECD Guidelines.Footnote 24 The complaint passed KNCP’s initial assessment, and the KNCP proceeded to offer its good office for mediation. However, KOWEPO and SK E&C refused to participate in the KNCP’s mediation procedure, and on 23 July 2020, the KNCP issued its final statement, essentially ceasing any further efforts but merely urging the companies to establish and maintain a communication channel.Footnote 25
The Korean TF believed that the KNCP neither observed due process according to the OECD Guidelines nor fulfilled its duty to protect basic human rights. Thus, the Korean TF submitted a petition to the National Human Rights Commission (NHRC) of Korea on 29 September 2020 against the KNCP. Disappointingly, however, the NHRC of Korea dismissed the petition on the grounds that according to Article 30(1) of the National Human Rights Commission Act, it cannot investigate the KNCP, for it can only do so against a government agency. The NHRC of Korea concluded that the KNCP is not a government agency even though the KNCP is subordinate to the Ministry of Trade, Industry and Energy, both in its work and finance.Footnote 26
Many international organizations for human rights and environmental protection have joined forces to help the survivors from the beginning, ensuring that the responsibility for the disaster be justly allocated. International Rivers (IR), Inclusive Development International (IDI), Mekong Watch and the Laos Dam Investment Monitor (LDIM) are among those working together with the Korean TF. They have invited the companies involved to answer the questions regarding the dam failure and their compensation plan for the affected communities, sent out open letters in the name of international CSOs to the relevant companies and hosted international forum on the Laos dam disaster.
The possibility of seeking legal remedy under the South Korean judicial system was also explored from the beginning as part of multi-prong strategy adopted by many actors, considering the well-documented lack of independent and effective judicial systems in Laos and Cambodia. The problem was that the Korean judicial system does not allow representative litigation, thus necessitating one of the survivors to come forward as a plaintiff. Having the actual victim as a plaintiff would not only have made the lawsuit in Korea available but would also have added much momentum to the advocacy works. However, without any local CSO in Laos to facilitate the communication with the residents, it was nearly impossible to find a plaintiff, and many Laos people were aware of the danger in coming across as criticizing the Laos government.
Despite many obstacles, the international network of CSOs has continued its efforts to pressure the perpetrators to provide adequate compensation to the survivors. Such efforts include publishing the report named Reckless Endangerment Footnote 27 by IR and IDI and hosting of an international seminar commemorating the second anniversary of the disaster.Footnote 28 In 2018, Thai and Cambodian activists from LDIM and a victim of the damaged area in Cambodia visited Korea to participate in an international forum to inform the public about the situation in the damaged areas. They also met with the Korean Exim Bank and Members of Parliament to let them know the devastating impact of the Laos dam disaster and ask for their proactive intervention to guarantee timely compensation and rebuilding of the affected communities.
IV. Ways Forward: Seek, and Ye Shall Find
In a country like Laos, where ‘a near-total lack of space for freedom of expression, strict limitations on media and civil society, and a history of reprisals, arrests, and disappearances have shut down space for the exchange of ideas and solutions, and prevent people from raising grievances and seeking accountability’,Footnote 29 it is particularly challenging to achieve access to justice for all the victims. Moreover, the complexity of the large-scale development project, well-illustrated by the Laos dam development project, make human rights violations by the collusive ties between state and business to persist, because people do not have access to information and cannot freely exchange their opinion.
Yet, there is hope. Recently, these companies and the Korean TF have been in contact with each other, and the Korean TF urged the involved companies to fulfil their responsibility to respect human rights. We believe that the submission of complaint to the KNCP as well as to the UN Working Group, both generating much public and media attention, must have put pressure on SK E&C and KOWEPO to respond to the Korean TF’s demand to constructively engage CSOs and provide adequate compensation to the affected communities swiftly.
The measures taken to provide the victims an access to justice may not have changed the domestic and international advocacy situation dramatically. However, the importance of persistence in putting forth a multilateral effort into solving a human rights violation caused by transnational business and development projects cannot be emphasized enough. The victims of the Laos dam disaster may not raise the issue freely and directly at the moment due to various political and situational reasons. Yet, when they realize that there are people who stand in solidarity with them, the seeds of change will bloom. It is only a matter of time.
