Both the governments of Laos and Cambodia have ratified the ICCPR, ICESCR and CRC.  These governments bear the primary obligation to respect, protect and fulfill the human rights recognized in these covenants for those affected by the Xe Pian-Xe Namnoy project. This obligation requires the Lao and Cambodian governments to ensure that there is no retrogression in the enjoyment of human rights, either as a result of their own acts or omissions, or the activities of third parties, including business enterprises.

The Lao and Cambodian governments also have the primary obligation to ensure access to remedy for violations of human rights that occur within their territory and jurisdiction. As part of their duty to protect against business-related human rights abuses, states must take appropriate steps to investigate, punish and redress such abuse. The Lao and Cambodian governments therefore have a legal obligation to ensure those affected by the dam collapse have access to remedy and to hold accountable the individuals and companies responsible.

The Lao government’s human rights obligations are heightened due to its additional role as an investor in the Xe Pian-Xe Namnoy project through Lao Holding State Enterprise, a business enterprise that is wholly state-owned. The UN Guiding Principles on Business and Human Rights note that “States should take additional steps to protect against human rights abuses by business enterprises that are owned or controlled by the State (…) including by requiring human rights due diligence.”

In addition to failures to protect against human rights impacts caused by the dam’s developers, the Lao government itself is directly responsible for the multiple violations of human rights occurring at the temporary camps, and it is obligated to end these violations and provide prompt remediation. These include conditions causing food insecurity, inadequate access to water and other basic necessities, and the legislative requirement to remain in the displacement camps until the new homes in the resettlement area are completed.

The governments of Korea and Thailand have also acceded to the ICCPR, ICESCR in and CRC. Although the violations of human rights described in this report occurred outside their territories, international law recognizes that a state’s international legal obligations apply extraterritorially in a number of circumstances. United Nations treaty bodies have affirmed that the obligation of states to protect against abuses of human rights extends to a duty to regulate the overseas conduct of businesses registered in their territory. This principle has also been recognized in the UN Guiding Principles on Business and Human Rights.

The Thai government has explicitly recognized its obligation to protect against business-related human rights violations involving Thai companies operating abroad, in two Cabinet resolutions in 2016 and 2017. Additionally, in 2018 the Thai government instructed the country’s 55 state-owned enterprises to show leadership in aligning their practices with the UN Guiding Principles on Business and Human Rights. Thailand’s draft National Action Plan on Business and Human Rights designates “cross-border investment and multi-national enterprises” as one of its four priority areas.

The dam’s developers and investors are registered in Korea and Thailand and fall under the jurisdiction of their home governments. These governments therefore have a duty to regulate these companies’ activities in Laos and elsewhere, with a view to preventing and redressing human rights violations that they have contributed to through their conduct.

The developers of the dam have a responsibility to respect human rights. The United Nations Guiding Principles on Business and Human Rights affirmed that while states have the primary obligations under international human rights law, this does not absolve business enterprises of their own responsibility. This responsibility requires that business enterprises avoid causing or contributing to adverse human rights impacts through their activities and address such impacts when they occur.

SK Engineering & Construction is the project’s EPC contractor, which means it is in charge of designing and building the dam. If reports of faulty engineering design and cost cutting decisions are accurate, SK Engineering & Construction caused the adverse human rights impacts and is primarily responsible for addressing them. SK Engineering & Construction’s responsibilities are heightened in light of its 26% equity stake in Xe Pian-Xe Namnoy Power Company, since it substantially contributed to the financing of the project.

Ratchaburi Electricity Generating Holding Public Company, with a 25% stake in the joint venture, is the project’s construction supervisor, giving it oversight of SK Engineering & Construction’s EPC work. As such, the company had a responsibility to investigate and supervise all key aspects of the project, including safety issues arising from the location of the dam and engineering designs flaws. It had a human rights responsibility to assess the potential human rights risks of problems identified and ensure that adverse impacts were prevented and mitigated. Its failure to identify and mitigate risks, when it was in a unique position to do so, arguably means that Ratchaburi, along with SK Engineering & Construction, caused the adverse human rights impacts, and at minimum it substantially contributed to them.

Korea Western Electric Power Co., the project’s operations and maintenance contractor, will run the dam when it becomes operational. It therefore did not directly cause the failures that resulted in adverse human rights impacts. However, as a joint venture partner and major equity investor in Xe Pian-Xe Namnoy Power Company, the company had a responsibility to conduct human rights due diligence of the project prior to investing and on an ongoing basis. A failure to do so, along with a failure to insist that robust dam safety and human rights safeguards were built into the joint venture agreement for the project –which has not been publicly disclosed– would mean that Korea Western Electric Power at a minimum is linked to the adverse human rights impacts by its business relationship, and arguably contributed to and was complicit in these adverse impacts. Lao Holding State Enterprises, with a 24% stake and the dam’s administrative supervisor, bears a similar responsibility. In addition, as state-owned enterprises, both Korea Western Power Company and Lao Holding State Enterprises are expected to observe the highest standard of responsible business conduct, including the conduct of human rights due diligence.

The banks that financed the project and the insurance companies that underwrote it directly enabled the development of the dam. The four Thai banks, Krung Thai Bank, Ayudhya Bank and Thanachart Bank and the Export-Import Bank of Thailand, provided 70% of the cost of the project’s construction. AON Thailand, AIG, Korean Re, Samsung Fire & Marine and Asia Capital Re all advised on or provided insurance coverage to the developers, which was vital to the project moving forward. Unless these banks and insurers insisted on conditions to prevent and mitigate adverse human rights impacts, including dam safety measures, in their legal agreements with the developers, they too contributed to the adverse human rights impacts suffered by directly enabling a high-risk project. The degree of contribution is arguably higher for the insurers, who are in the business of assessing risk, including risk to human life and property. Insurers have a responsibility to extend these assessments to human rights risks, as part of their human rights due diligence.

If the banks and insurance companies did ensure that there were robust conditions in their legal agreements to guard against human rights impacts, but these were breached by the developers, the banks and insurers may not have contributed to the impacts. But, even if so, they are nonetheless directly linked to the impacts through their business relationships, in particular their financing and underwriting products and services provided to the developers for the project.