[BY PERMISSION OF THE CHAIRMAN:]

Council of Lao Representatives Abroad -- Oceanic Region
NSW 2177 Australia
April 21, 2003

The Council of Lao Representatives Abroad (Oceanic) - Laos Reforms 2003 Report
Submission to US congressional Forum
Washington D.C.

The Council of Lao Representatives Abroad (Oceanic) hereby formally submits this report to be tabled at the US Congressional Forum in Washington DC on the 21^st of April 2003.  Concurrently, we submit this report to other international bodies that have an expressed interest in the ongoing development of issues relevant not only to Laos but to the region as a whole.  The issues include, but are not limited to; foreign investment, legal governance, foreign aid, human rights and religious freedoms.

The first important statement that the Council of Lao Representatives Abroad wishes to make clear is its desire to promote open dialogue between itself, the Lao Government and the international community in an effort to bring forth constructive debate with an aim of identifying positive solutions to current issues of concern. 

The second important statement that the Council of Lao Representatives Abroad wishes to make clear is its desire to see the proper implementation of the articles of the Laos constitution as adopted by the 6^th Session of the People’s Supreme Assembly (2nd Legislature) Vientiane, 13 - 15 August 1991.  The constitution sets out clear guidelines by which the country should be governed in order to fulfil the objective of building Laos into a country of peace, independence, democracy, unity and prosperity.

The Laos constitution reiterates the fundamental principles of the freedom and democratic rights of the people, which the Lao Government states openly, “cannot be violated by anyone”.  Clearly, there are still shortfalls within the system that prevent the effectiveness of the Laos constitution.  We hope the Lao government will make itself more accessible to respected organisations like the Council of Lao Representatives Abroad, the United Nations, Amnesty International, foreign governments and alike, who remain committed to promoting positive solutions to support the development of Laos, in all respects.

The third important statement that the Council of Lao Representatives Abroad wishes to make clear is its support of the United Nations Declaration of Human Rights as Laos so joined the United Nations in 1955.  This agreement remains the basis on which our freedoms, dignity and rights are clearly defined.  They are endowed with reason and conscience in teaching humans how they should act towards one another in a spirit of brotherhood.  It is important for Laos to secure its universal and effective recognition and observance, both among the peoples of world and among the peoples of its jurisdiction. 

We would like to see the Lao Government begin to seriously commit to the promotion of the Universal Declaration of Human Rights of the United Nations as they agreed to promote when becoming a member of the United Nations in 1955. Particularly, we would like to see the Laos Government enforce article 5 of the agreement whereby “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

According to various eye-witness reports submitted as recent at 2003 to Amnesty International, which include; reports from the US State Department, the US Commission for International Religious Freedoms and other Independent Human Rights organisations, the reports strongly indicate that some departments within the Lao Government have clearly violated not only article 5 of the Universal Declaration of Human Rights of the United Nations but subsequently, a number of articles contained therein. 

In this decade, world opinion has branded the Laos Government as a one -party authoritarian state that suppresses the human rights and political rights of its citizens and foreigners alike.  Unfortunately, the Laos Government has been unable to change that opinion and so, finds itself in the company of rogue states, such as Cuba, Burma and Vietnam.  The Lao Government fails to rule most effectively, mainly because of its inability to follow the international agreements it commits to in principle, to upholding. This has contributed to the serious underdevelopment of the country, which sees Laos as one of the poorest countries in the world. Access to even very basic health and education services is limited. 

Calls for reform are paramount to the successful development of Laos in all respects.  But clearly, the Government continues to show and unwillingness to even debates the issues in the world arena.

Isolated examples of breeches to Domestic and International agreements;

1. Violations of articles 2, 4, 5, 6, 8, 9, 29, 30, 31, 37, & 38 of the Laos constitution adopted by the 6^th Session of the People’s Supreme Assembly (2nd Legislature) Vientiane, 13 - 15 August 1991 (see more detailed information as attached).

2. International Covenant on Civil and Political Rights (ICCPR), in accordance with the UN Declaration of Human Rights describes the fundament right that; those deprived of their liberty shall have the right to a fair and public hearing within a reasonable time, the right to prepare a defence and to be assisted by a lawyer, and the right not to be ill-treated or tortured in detention.  The Laos Government signed on 7 December 2000, in agreement to the ICCPR that the Laos Government would uphold the agreement in accordance with International law and not to do anything, which would defeat the object and purpose of the ICCPR.

3. The Lao Law concerning Criminal Case proceedings (1989) detail the procedures which should be followed in arrest, detention, and criminal prosecutions, but it is clearly and currently evident that there are many major breeches in this law, which further shows a lack of willingness or capability of the Laos Government to implement and follow their own laws.

4. UN Standard of minimum Rules for the Treatment of Prisoners, Rule 33.  Clearly evidence submitted to various International authorities (Amnesty International July 2002 Report) shows that the Laos Government does not uphold the principles of this article.

5. The Basic Principles for Treatment of Prisoners (1990) refers to medical care and that provides the basis on which prisoners are to be provided with medical aid.  Clearly the Laos Government does not uphold the principles of this article as widespread reports continue to show violations of this principle.  The International Committee for Red Cross has made numerous attempts to provide support to the prisons in Laos, but these have consistently been rejected by the Lao Government.

6. United Nations Universal Declaration of Human Rights article 9 “No one shall be subjected to arbitrary arrest, detention or exile.” Article 10 states “Everyone is entitled in full equality to a fair and public hearing by an independent tribunal, in the determination of his rights and obligations and any criminal charge against him”. 

7. In 1976 the International Covenant on Civil and Political Rights 1966 (ICCPR) entered into force.  Relevantly, Article 9 of the ICCPR states “Everyone has the right to liberty and security of person.  No one shall be subjected to arbitrary arrest or detention.  No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.” Anyone who is arrested shall be informed, at the time of the arrest, of the reason for his arrest and shall be promptly informed of any charges against him.

8. Various foreign investment laws have been documented as being subject to extreme prejudice and government interference.

Many examples clearly expose the ineffectiveness of the Laos Government that fail to uphold and honour the many international agreements they have signed.

On 7 December 2000, the Laos Government signed the ICCPR. In doing so, it embraced the principles espoused in the agreement and signalled to the international community its willingness and intention to implement the philosophy articulated in the ICCPR.   In addition, it is submitted in Articles 9 and 10 of the Universal Declaration of human rights and Article 9 of the ICCPR form part of international customary law.  The rights prescribed in those articles are fundamental human rights.  Their recognition is a matter of settled international practice.  States recognise those rights as obligatory by reason of their fundamental nature: see Federal Republic of Germany v Denmark; FRG v The Netherlands ICJ Rep 1969 3 at paragraph 77 and per Judge Lachs.

Despite these serious breeches of international agreements, foreign governments, aid agencies and the United Nations themselves, do very little to make accountable the Laos Government.

Reinforcement by US Government of violations

Ambassador Hartwick of the US Embassy in Vientiane Laos recently stated that the Laos Government “has treated many of its own people harshly, trampled on its citizens' individual human rights, and denied many basic freedoms we Americans cherish."

This statement further reinforces the view shared by many throughout the world that the Laos Government does not uphold the sanctity of human dignity.  Many also believe that the Government cannot be relied upon to abide by agreements that are designed to protect the interests of both the national and international community. Ambassador Hartwick acknowledges that many Laotians living abroad, particularly America, have suffered as a result of the current Laos Government, he states “For almost all of you, or your parents, the journey from Laos to America has not been an easy one. Many of you suffered terribly, enduring years of hardship and bitterness living under communist rule, sometimes fighting against them, later facing further pain and uncertainty in refugee camps in Thailand. I am sure each of you has personal experiences that are beyond the understanding of most Americans because of the terrible things you lived through and witnessed. For those very personal reasons, many of you have deep suspicions and dislike of the current government in Laos.”

Is it reasonable for the US Government to expect Laotians to respect the Lao Government when clearly the government does not respect the people or the laws that are constituted to protect the people? 

The US Embassy in Vientiane Laos has recently made known their intention to push for Normalized Trade Relations between Laos and the United States.  The Council of Lao Representatives Abroad (CLRA) does not feel confident that the implementation of NTR will have a positive effect on Laos whilst the Laos government consistently refuses to uphold and abide by current policies, UN agreements and international laws. How can the present government be relied upon to honour any such new agreements?  We feel that the Bush Administration would be more responsible in its approach in proposing NTR to Laos, if they were able to gain sufficient assurances from the Laos Government that current policies, UN agreements and international laws would be upheld, and better promoted in the future.  Subsequently; in failing to make notable progress, the Laos Government should be made accountable by agreeing to forfeit support from the International Community until such time that it complied with the principles of the said agreements.

Recommendations

The Council of Lao Representatives Abroad strongly recommends that governments engaging in violations of international agreements, should not gain easy access to further trade agreements unless, there is positive reassurance and accountability to protect the principles of such agreements.  The Lao Government continues to be the subject of reports that show recent abuses of foreign investors who have been unlawfully and arbitrary arrested, prolonged in detention.  Subsequently, there have been reports on extreme violations of religious freedoms, expropriation of foreign investment assets and serious violations of trade agreements for businesses and joint venture memorandums. 

Since the Lao Government perceives Western governments influential in the provision of international aid contributions for the development of Laos, there is an immediate opportunity by them to engage the government in a process of reform that would end the oppression and wide scale violations of human rights.  Therefore, the Council of Lao Representatives Abroad makes the following key recommendations to Western governments who support NTR for Laos; that they;

1. Designate that Laos is “a country of particular concern” to make clear that severe violations of human rights exist in Laos;

2. To seek from the Laos Government to enforce appropriate legal processes that promote transparency of foreign investment practices, policies, monitoring and management;

3. To ensure the practical application of International law when dealing specifically with foreign investment;

4. To establish an independent board of enquiry or board of arbitration where foreign investors can raise urgent concerns that might have a long term effect on their investment; and that might suitably advise and implement international law when there has been a clear breech of their investment agreement; harassment or other violation that would jeopardize their foreign investment;

5. To establish practical solutions to protect the human rights of all persons in Laos and prevent arbitrary arrest and prolonged detainment;

6. To urge the Laos Government to take specific steps to rectify concerns raised by international human rights organisations with regard to human rights violations; and including, the establishment of an independent monitoring body to conduct random inspections to the foreigners prison ‘Phonthong Prison’ Vientiane, Laos.

7. To urge the Laos Government to uphold the United Nations Declaration for Human Rights.

Further considerations

When we consider the introduction of new policy, it is the responsibility of the international community, foreign aid donors and governments to investigate fully whether or not, current policies are being adhered too.  This establishes the integrity of the applicant.  The Laos Government continues to reveal their inability to function appropriately and more importantly, to function lawfully when dealing with foreign investors.  For example: there are numerous reported abuses by Laos authorities to the various Laos Banking resolutions and foreign investment laws which are designed to protect investors and foreigners alike.  For Laos to prove their integrity, and thus gain the confidence of the international community they must address their current commitment to current policies and make accountable those authorities that violate current laws and legislation. 

The Australian government acknowledges that Human rights are an important element in any foreign policy because the dignity and freedom of individuals must be preserved and that all Governments should take effective steps to ensure the promotion of human rights, including through representations to promote those rights in its dealings with other countries. 

Our nations were dubbed the ‘Coalition of the willing’ in the Iraq conflict, and yet it seems that in our willingness to engage NTR for Laos, we fail to make accountable a Regime that publicly and openly opposes the very principles of democracy that we represent. The promotion and protection of human rights is important to Lao’s National interests just as the promotion and protection of foreign investor rights underpin the country's broader economic interests.  The Laos Government unfortunately lacks the ability to embrace such important aspects of being part of a civilized global society.   Likewise, western governments could do more to address the Laos Government’s inappropriateness but instead, seem to be shackled by diplomacy.

Until the present Laos government shows substantial willingness to adopt more closely those practices which make us all ‘civilized’ towards each other, then the Council of Lao Representatives Abroad cannot support the implementation of NTR in Laos, nor can it endorse the encouragement for greater foreign investment to Laos.  Our organisation does not dispute that economic development is critical for improving the quality of life for people in developing countries. The stability of free and democratic societies can enrich and accelerate human development by providing standards and direction for social and economic growth.  But let us not be confused about the society we are discussing. It is not one which is based on democracy that respects the human rights of citizens and foreigners alike, nor is it one that respects the rights of foreign investors who are continually subjected to harassment and illegal expropriation of their valued assets.  Clearly, the Laos Government holds firmly to its communist, totalitarian regime practices. 

The Western World must be realistic about the ‘non-democratic’ nature of the Laos Government. Similarly, Laos must be realistic in its current shortcomings if it is to realise its acceptance within the global community and in particular, the foreign investment community.

As we repeatedly mention in this document, it is vital for effective foreign policy of any sort to uphold current agreements. It creates confidence in investors and governments, and thus lends to the greater opportunity for investment and trade. The Laos Government has readily agreed to uphold the use of UN mandates as guided by the UN Commission on Human Rights, foreign investment agreements, as appropriated by legal entities through Joint Venture agreements but sadly, the Laos Government continues to fail to uphold the principles of these agreements.

In the year 2000, a number of foreign investments were illegally expropriated, unlawfully administered, inappropriately cancelled or found in breech, as a direct result of Laos Government and ministerial corruption.  The international community namely, the World Bank, IMF and ADB, failed to rally any support to ensure these investors were granted their rights for protection through proper international processes which could effectively determine a lawful resolution to their problem.  Similarly, US Ambassador Hartwick states “we believe that foreign investors, who demand fair treatment and decent courts to enforce contracts, have a real impact in advancing rule of law.” 

To the contrary, a number of former foreign investors have made statements to Amnesty International, the United Nations, US Congress, the World Court, and like minded organisations that; those investors who ‘demanded fair treatment’ were either thrown in jail or run out of town through a series of death threats.  The Laos courts do not enforce contracts or agreements.  On some occasions, they have been found to simply change their own laws to suit themselves.  In one such court proceeding of the year 2001, involving a foreign investor, an Embassy official witnessed a senior Laos official of the Laos Taxation Department commit perjury to the court in order to bring about a conviction against the foreign investor.

There is no system in place to protect the agreements that are signed between foreign investors and the Laos government.  It would be useful if such world organisations and foreign government representatives became more pro-active in addressing foreign investor concerns and indeed concerns from foreigners who have fallen victim to the corruption of government officials.  The need for transparency is obvious but the World Bank, IMF and ADB seem either unwilling or unable to support foreign investment in Laos, thus stating that they are only interested in ‘those projects that they administer’. How then, can these institutions hope to receive a positive return on the money ‘on loan’ to the Laos Government when clearly, foreign investment protection is vital to economic growth.  What can foreign Governments and International aid agencies do to support foreign investment in Laos? They can demand transparency and accountability and to ensure foreign investors have access to a lawful authority, to redress complaints or make known any harassment they are subjected to, which if detected early, might prevent the unacceptable loss of their investment?

In principle, foreign investment is good for Laos but many foreign companies suffer a range of problems when investment laws are not enforced, labour laws are not enforced and anti-corruption decrees are not enforced.  The practicalities of doing business in Laos are undermined daily. 

Foreign Embassy’s promote Bilateral Trade Agreements as a form of protection for investors but in reality, such agreements do not provide such protection. A clear example of this is the case of Kerry and Kay Danes of Australia.  The Security Manager and his wife were unlawfully detained in prison for nearly one year.  The Australian Government declared them ‘unofficial hostages’ in a major foreign investment expropriation wrought by the Lao Government.  The bi-lateral trade agreement between the two countries did not deter the Lao Government from ill-treating the Australian couple, nor did it prevent their unlawful detainment for almost a year in sub-humane conditions, nor did it enable the couple to a fair hearing in a court, or the right to defend themselves through a proper legal process, or to seek redress in an International court following their departure from the country which would have resulted in the restoration of their name and reputation.  As with the Danes case, there have been many other reports that suggest a serious problem with foreign investment in Laos.  There is clearly an inability of foreign government agencies and donor organisations to provide any significant protection.

There is no denying that NTR would be a wonderful opportunity for Laos as would greater foreign investment be.  Both would enable the local private sector businesses, entrepreneurs, and workers to benefit in the world market place, and consequently raise their standard of living.  But the Laos Government has proved itself unreliable as has the international community in providing appropriate support to foreign investors.   The issues that are of concern are not limited to foreign investment or human rights.  Recently, the US Government promoted ideas that they have made ‘uneven progress’ in promoting democracy and human rights in Laos, and in particular, to religious freedoms.  The report February 2003 released by the US Commission on International Religious Freedoms, however, calls for the US Government to designate Laos as a ‘country of particular concern’, and to make clear US Concerns over particularly severe violations of religious freedoms in Laos.  All throughout the report, there is significant suggestion by the US Commission that Laos is no closer than they were twenty-eight years ago, to observing religious freedoms as defined in the International Religious Freedom Act of 1998 (IRFA).

As with many agreements signed by the Laos Government, and those ending in dispute, the excuse is consistent.  The Laos Government claims in most all cases, to have misinterpreted the English language and translation.  Likewise, the analysis of the decree of the Administration and Protection of Religious Activities in Lao PDR, in its English translation reveals several troublesome aspects that may in fact lead to further violations of religious freedoms.  This is one important example that also leads to concern for NTR and foreign investment in Laos.  Many investment documents that are written in both languages, decree’s and laws as set out by the Laos Government, the effective implementation of such unravels with the interpretation as set in the English language.

There are those like Ambassador Hartwick who speak eloquently about the US government’s willingness to promote Human rights in Laos through the implementation of NTR. But the practical aspects of introducing NTR are still not clearly explained.   Considering NTR is possible, what steps does the US Government propose to alleviate the increased departmental corruption which will result in the introduction of NTR?  It is clear that with the proposed introduction of any new policy there must be strong consideration to accountability of that policy and the effectiveness of the government to properly administer the policy.  All such trade agreements and human rights agreements must have protective provisions attached as a necessity to ensure the integrity, transparency and adherence to rule of law.

The Council of Lao Representatives Abroad do not feel that the Lao Government has the appropriate level of knowledge, experience, motivation or integrity to uphold yet another ‘serious’ agreement.  As such, we recommend;

1. that this issue of NTR be further debated;

2. the issues of human rights be seriously enforced according to the United Nations Declaration of Human Rights;

3. the US Government and like-minded governments and organisations provide clear recommendations and workable solutions to ensure the reliability of the applicants, in this case, the Laos government;

4. that the international community focus more on and strongly encourage such regimes to uphold the principles of the international agreements they sign, in accordance to International law;

5. that the international community call for reforms in all respects and that the Laos Government agree to establish an independent board of arbitration, as mentioned in this document, to protect the broader interests of all future foreign investors to Laos; 

6. That the United Nations encourages greater reforms and accountability amongst countries that sign in agreement to their mandates.

Kat Ditthavong
Deputy Secretary General
The Council of Lao Representatives Abroad - Oceanic Region

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Attached;

Annex A
Violations of articles of the Laos constitution.

Annex A

The following are only limited examples of the violations of articles 2, 4, 5, 6, 8, 9, 29, 30, 31, 37, & 38 of the Laos constitution adopted by the 6^th Session of the People’s Supreme Assembly (2nd Legislature) Vientiane, 13 - 15 August 1991

Article 2. The state of the Lao People's Democratic Republic is a People's Democratic State. All powers are of the people, by the people and for the interests of the multi-ethnic people of all strata in society with the workers, farmers and intellectuals as key components.

Article 4. The National Assembly is the organisation of the people's representatives. The election of members of the National Assembly shall be carried out through the principles of universal, equal and direct suffrage, and secret balloting. Voters have the right to propose the dismissal of their own representatives if they are found to behave unfit to their honour and to lose the people's confidence.

Article 5. The National Assembly and all other state organisations are established and function in accordance with the principle of democratic centralism.

Article 6. The state protects the freedom and democratic rights of the people which cannot be violated by anyone. All state organisations and functionaries must popularise and propagate all policies, regulations and laws among the people and, together with the people, organise their implementations in order to guarantee the legitimate rights and interests of the people. All acts of bureaucratism and harassment that can be physically harmful to the people and detrimental to their honour, lives, consciences and property are prohibited.

Article 8. The state pursues the policy of promoting unity and equality among all ethnic groups. All ethnic groups have the rights to protect, preserve, and promote the fine customs and cultures of their own tribes and of the nation. All acts of creating division and discrimination among ethnic groups are prohibited. The state implements every measure to gradually develop and upgrade the levels of socio-economy of all ethnic groups.

Article 9. The state respects and protects all lawful activities of the Buddhists and of other religious followers mobilises and encourages the Buddhist monks and novices as well as the priests of other religions to participate in the activities which are beneficial to the country and people. All acts of creating division of religions and classes of people are prohibited.

Article 29. The right of Lao citizens in their bodies and houses are inviolable. Lao citizens cannot be arrested or searched without warrant or approval of the authorized organisations, except in the cases as prescribed by law.

Article 30.Lao citizens have the right and freedom to believe or not to believe in religions.

Article 31. Lao citizens have the right and freedom of speech, press and assembly; and have the right to set up associations and to stage demonstrations which are not contrary to the law.

Article 37. The aliens and persons having no nationality have the right to enjoy their rights and freedom protected by the provisions of laws of the Lao People's Democratic Republic. They have the right to lodge petitions with courts and other organisations concerned of the Lao People's Democratic Republic and the obligations to respect the Constitution and laws of the Lao People's Democratic Republic.

Article 38. The Lao People's Democratic Republic grants asylum to foreigners who are persecuted for their struggle for freedom, justice, peace and scientific causes.