INTERNATIONAL PROTECTION OF HUMAN RIGHTS
The political oppression in Burma trough the example of the unfair trial and arbitrary detention
Table of Content
Table of Content
INTRODUCTION.......................................................................................... 3
Section 1: Describing abuse in its context...................................................... 4
1.”Serious flow in the current administration of justice system”..................................................................................................... 4
2.Arbitrary detention.................................................................................................... 5
Conclusion Part.............................................................................................. 6
Section 2: State and apply the international law............................................ 7
1. What is the right to a fair trial?................................................................. 7
2. What is an arbitrary detention?................................................................. 7
3. What is the applicable international human right law?.................................. 8
4. Customary law........................................................................................ 9
Conclusion Part II..................................................................................... 10
Section 3: UN procedural action................................................................. 11
1. Who can deal with this abuse?................................................................ 11
2. Charter mechanism as an answer to the abuse........................................ 11
3. What aimed to be achieved and what have been done in reality...................................................................................................... 12
Conclusion part III.................................................................................... 14
Section 4: Alternative procedural action...................................................... 15
Conclusion part IV............................................................................................................ 17
CONCLUSION............................................................................................ 19
INTRODUCTION
"For the United Nations, the rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency."[1]
Across Burma (Myanmar[2]) people are arbitrarily detained on suspicion of supporting illegal associations. In Burma's conflict zones these arbitrary detentions are inextricably linked to accusations of support to ethnic nationality opposition groups. Those accused are detained, tortured and sometimes killed with no warrant, charge or legal process.
There are various international laws and covenants that cover the treatment of detainees and prisoners.
In Burma the implementation of such law lacks adherence since Burma hasn’t signed nor ratified most of it. The International customary law nevertheless comes in reinforcement of this legal order.
The United Nation then enforces the International Law within the limits of its voluntary nature.
As a result, since sometimes the UN actions are not efficient enough, alternatives procedures are taken to embargo human rights abuse.
In this essay we will focus on the right to a fair trial and on the prohibition of arbitrary detention as a result of an unfair trial in Burma.
This essay will describe trough various examples, how unfair trial and arbitrary detention occur in Burma. Then it will be explained to what extent the International Human Right Law is violated and how it should be answered trough the UN system as well as trough an alternative solution.
Section 1: Describing abuse in its context
The country became independent on the 4th of January 1948. On the 2nd of march 1962 Ne Win did a coup. This is the framework of the Burma totalitarianism in a context of minority tensions, particularly illustrated by the 8-8-88 or by the Saffron revolution and the fight of ASSK[3].
1.”Serious flow in the current administration of justice system”
Several noting justifies that sentence[4].
First, in term of procedure the law requires that the arrestee is brought before a judge within 24 hours. However, people are detained without charges, sometimes without ever being brought before a judge, and are sometimes released without explanation. Tin Myo Win, ASSK’s doctor was arrested on 6 May 2009 and released ten days later without any explanation from the authorities for his detention. Also in April 2009, five members of the Federation of Trade Unions of Burma were arrested and subsequently released without explanation.
Secondly that’s because the Constitution, in chapter 1, paragraph 19, and the Judiciary Law (2000). It establishes important judicial principles: to administer justice independently according to the law; to dispense justice in open court unless otherwise prohibited by the law; to guarantee in all cases the right to a defence and the right of appeal under the law.
However, in reality, many prisoners of conscience have been sentenced in closed-door hearings within prison compounds, without legal representations, without the presence or knowledge of their family members, and without proof of evidence or with flawed evidence. In most cases judges operate on conclusions based on instruction from political and higher instances.
In fact, defence lawyers face great difficulties ranging from not being informed of the dates and venues of trials to not having the possibility of meeting detainees in private before trial.
Moreover, concerning the right to a defence, a number of lawyers were arrested for contempt of court. The Contempt of Courts Act (1926) does not identify what constitutes contempt of court, leaving it open for any interpretation.
Some 11 lawyers are consequently currently imprisoned. Among others, is the example of Pho Phyu, a lawyer arrested in January 2009 who had assisted farmers whose land had been forcibly seized by the army. He was arrested and charged under the Unlawful Association Act. He was sentenced to a four-year imprisonment by a court in Magway Division. His appeal was rejected in May 2009. The senior lawyers Aung Thein and Khin Maung Shein representing U Gambira[5], were sentenced to four months of imprisonment also for contempt of court.
As we can see, the independence of lawyers to practise their profession is hindered for political motivation. What is even worse is that even after serving the unfair imprisonment, the career of many of these lawyers is destroyed, since their licence is revoked and they cannot find any other job elsewhere.
As a result being the lawyer of the prisoners of conscience or pleading against the military junta interest is really dangerous, undercutting the reality of the right of a defence.
This flow in the justice administration is one of the causes of the arbitrary detention.
2. Arbitrary detention
Among the grounds for the deprivation of liberty is the religion or the ethnic group, or for being member of the opposition party such as ASSK[6].
First we have to stress that there is today around 2100 prisoners of conscience, some with very harsh sanctions. There is numerous examples:
The member of 88 Generation Student: they were given terms of imprisonment of 65 years.
The comedian Zarganar was sentenced to a total of 59 years, reduced to 35 years in February 2009, or Bo Min Yu Ko, a member of the Mandalay Branch of the all Burma federation of Student Union in his early twenty, was sentenced to 104 years of imprisonment.[7]
Ko Aung: imprisoned as a prisoner of conscience for participating in the 8-8-88 events.
Par Par Lay: during a NLD meeting he made a joke about the forced labour, the lack of electricity and the schools in Myanmar. In this meeting were member of the military junta disguised in NLD sympathizer, so that they arrested Par Par Lay. He has been sentenced to 7years of forced labour and all his family has been arrested (even if they have then been released then).[8]
Furthermore, Five urgent appeals have been made to the Arbitrary Detention Committee, appeals concerning 13 people. The "urgent action" procedure for cases in which there are sufficiently reliable allegations that a person may be detained arbitrarily and that the alleged violations may be time-sensitive in terms of involving loss of life, life-threatening situations or either imminent or ongoing damage of a very grave nature to victims in the event of the continuation of the detention[9]. [10]
It can be argued that Burma has only five appeal whereas Iran has 8 ones involving 169 persons. But how many didn’t case aren’t brought before the Committee due to the government oppression?
Conclusion Part
Thorough the years the same abuses continue. This year, 2010, the government will organize elections implying a high risk of unfair trial and arbitrary detention since any political opposition have been repressed in the past such as in 1990 (and illustrated more recently with the electoral law that forced the NLD to exclude ASSK)[11].
This stresses the importance of finding a solution to prevent it in order the abuses not to worsen more than it already is today.
Section 2: State and apply the international law
1. What is the right to a fair trial?
The right to a fair trial is guaranteed by the article 14 of the ICCPR which provides that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law” (see also articles 10 and 11 of the UDHR[12]).
The right to a fair trial includes the right to be presumed innocent until proved guilty; to be informed of the nature and cause of the charge; to have adequate time and facilities for the preparation of their defence and to communicate with counsel of their own choosing to be tried in their own presence and defend themselves in person or trough legal assistance of their choosing; to examine or have examined, the witnesses on their behalf on the same condition as witnesses against them; to have the free assistance of an interpreter if they cannot understand or speak the language used in court; and not to be compelled to testify against themselves of confess guilt [13].
2. What is an arbitrary detention?
The term “detention” has been defined by the Commission on Human Rights, in its Resolution 1997/50,: it is a” deprivation of liberty”.
The question is to know when detention is or becomes arbitrary.
Indeed, there may be legitimate deprivations of liberty, such as of convicted persons. In addition, the right to personal liberty may suffer limitations during states of emergency, without being said to be arbitrary[14].
The UDHR merely provides in article 9 that “no one shall be subjected to arbitrary arrest, detention or exile” (see Article 9(1) of the ICCPR[15]).
When determining the mandate of the Working Group on Arbitrary detention, the Commission, while it did not define the term “arbitrary”, considered in Resolution 1997/50[16] that deprivation of liberty is not arbitrary if it results from a final decision taken by a domestic judicial instance and which is first in accordance with domestic law as well as in accordance with other relevant international standards set forth in the UDHR and the relevant international instruments accepted by the States concerned.
To enable it to carry out its tasks, the Working Group adopted criteria applicable in the consideration of cases submitted to it, drawing on provisions of the UDHR and the ICCPR as well as the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
Consequently, according to the Group, deprivation of liberty is arbitrary if a case falls into one of three categories[17].
Category I, when it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his sentence or despite an amnesty law applicable to him);
Category II, when the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 10 and 21 of the UDHR and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the ICCPR;
Category III, when the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the UDHR and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character.[18]
3. What is the applicable international human right law?
The key point of this part is to know that the UN is not a Worked Parliament and in general, States are only subject to International Law in so far as they choose to be: that is the so called voluntary nature of the international customary law.
Neither is there effective mechanism for enforcing international law: states are only subject to the jurisdiction of the International court of Justice and other International tribunals to the extent they chose to be[19].
We will see that there are exceptions sometimes with the International Customary law.
The Sources of international law are listed in article 38 (1) of the Statute of the International Court of Justice. They are: The international conventions, the international customs, the general principles recognized by civilized nations or the judicial decision and the teachings of the most highly qualified publicists of the various nation (but only as a subsidiary means for determination of rules of law).
To be enforceable a contention of international law must be both signed and ratified. For example, the CRC optional protocol armed conflict has been signed on the 12/11/2001 but not ratified and as a result is not enforceable against Burma.
As highlighted above the International law is in principle of a voluntary nature. The problem is that Burma has ratified only a few conventions. Myanmar has neither signed nor ratified the International Covenant on Civil and Political Rights which would have been relevant for the described abuse.
They nevertheless ratified:
- the Geneva convention (ratified on 25/08/1992),
- the CEDAW (ratified on 22/07/1987),
- the CRC 1990 without its additional protocol (ratified on 15/07/1997), the Genocide Convention 1948 (ratified on 14/03/1956),
- the Suppression of the Financing of Terrorism 1999 (ratified on 12.11.2001), the Convention for the Suppression of terrorist bombings 1997,
- the Charter of ANSEAN (regional convention).
The CRC and CEDAW are UN convention. However, for arbitrary detention and unfair trial we are not concerned about the CEDAW. Nor are we concerned about the CRC, the Suppression of the Financing of Terrorism and the Convention for the Suppression of terrorist bombings.
Let’s examine each of the treaties we are concerned about.
Concerning the Geneva Convention. Some of the violations described in this report took place in areas where an internal conflict is ongoing. Myanmar is a High Contracting Party to the four Geneva Conventions of 1949. Article 3, common to the Conventions, applies in armed conflicts not of an international nature. As a result article 3 obliges Myanmar to treat prohibiting “murder”, torture and cruel treatment and unfair trial.
Concerning the ASEAN Charter. It came into force in December 2008 and includes respect for fundamental freedoms including the promotion and protection of Human Rights, and the promotion of social justice among its legally principles (article 2(i)). The right to liberty is recognized as being a fundamental right (article 3 and 9 of the UDHR), xxxx.
As we can see there is limited international convention applicable to Myanmar. Fortunately, apart from these, is the international customary law.
4. Customary law
Customary law refers to a general and consistent conduct, or the general and consistent conscious abstention from certain conduct of states, that becomes in some measure a part of the international legal order.
A practise may be general even if not general: there is “no precise formula to indicate how widespread a practice must be, but it should reflect wide acceptance among the states particularly involved in the relevant activity”[20].
In addiction, by virtue of a developing custom, particular conduct must be considered to be permitted or obligatory in legal terms, or abstention from particular conduct must come to be considered as a legal duty[21]: opinio juris sin necessitas
Article 38(1) of the Statute of the International Court of Justice treats international custom as a source of International Law.
Two reasoning can be to demonstrates that the violation of the right to a fair trial and to the prohibition of arbitrary detention is a violation of the international customary law.
The first reasoning is based on the American Law Institute Restatement (Third) The Foreign Law of the United States. It identifies the content of the Customary International Law of Human Right at section 102[22].
In includes among others prolonged arbitrary detention and a consistent pattern of gross violation of internationally recognised human rights.
The Universal declaration although “not binding”[23] articulates the most basic rights all UN members states including Myanmar, are expected to promote and protect and could be used as a basis for customary law since it acknowledges human rights.
On the contrary, the ICCP is binding.
These three rights based on provisions of the UDHR and of the ICCPR are have been violated systematically by Myanmar authorities as demonstrated in Part I. [24]
Firstly, the right to liberty, which includes a prohibition on arbitrary depravation of liberty and arbitrary arrest and detention[25] [26].
Secondly, the right to a fair trial and the presumption of innocence[27].
As a result of these three consistent pattern of gross violation of internationally recognized human right[28], it can be said that the state of Myanmar violates international law, and more particularly, the right to a fair trial and the prohibition on arbitrary detention.
A second reasoning can be followed.
Indeed, considering that “the main evidence of customary law is to be found in the actual practise of states and a rough idea of state practice can be gathered from (…) action taken by the state, statement made by the government spokesman (…) to the press, and also from the state’s law and judicial decision and process of law[29]”[30].
Moreover, considering that the practise needs to be first both general, consistent, and in the sense of a legal obligation[31]
Since in the majority of the countries, if the due process of law is not respected the unfair trial is said to be void partly or wholly or at least severely criticized if not.
Since arbitrary detention is as well strictly forbidden in those countries.
Since also most of the states’ constitution guarantee the right to a fair trial and prevent both the violation of this right and the arbitrary detention.[32]
Since sanction are taken against the state by the judiciary power in cases of a judicial error or unfair trials[33]
It follows from above that the right to a fair trial and the prohibition against arbitrary detention are part of the international customary law.
As a right or prohibition becomes customary law it becomes an UN objective bonding UN members: Myanmar is a Member State of the United Nations.
Conclusion Part II
There is a violation of the Convention of Geneva, of the ASEAN Charter, and two violation of an international Custom.
Section 3: UN procedural action
The effectiveness of the UN’s human right system depends upon its ability to enforce respect for the legal norms setting standard for the Human rights. It is easier to consensually set up standard but harder to enforce it: indeed if we are prepared to accept that measures are taken against a country are we prepared to accept it against our own?
1. Who can deal with this abuse?
There are two main types of international bodies which deal with the protection of human right:
The Charter based organs[34] derived their establishment from provisions contained in the Charter of the United Nations, hold broad human right mandates (focus on a diverse range of issues), address to unlimited audience (“every state is an actual potential client or respondent regardless of its specific treaty obligation”[35]) and take action on majority voting.
The treaty-based organs derive their existence from provisions contained in a specific legal instrument, hold more narrow mandates[36], are addressed to a limited audience[37] and base their decision making on consensus[38].
Burma hasn’t signed any of the treaty[39]: only international customary law is applicable.
The customary law is applied by the charter-bodies since “in contrast with treaty-bodies, the charter based bodies are political organs which have a much broader mandate”[40].
2. Charter mechanism as an answer to the abuse
“The function of the UN is usually indirect. This means that UN organization tries to encourage, push, prod and ultimately embarrass stages into taking steps to guarantee the proper practise of rights”[41].
When a violation occurs, individuals, groups, NGO’s or Countries can all make communication to the CHR which will then investigate the claims[42]trough two procedures.
Procedure 1503 authorises confidential consideration of a situation that appear to reveal a consistent pattern of gross and reliably testified violations of human rights and fundamental. This procedure, because of its confidentiality, may be used before resort to the Resolution 1235 procedure[43].
The Special procedure is then applied, it encompass both the public debate under the 1235 procedure, that might led to the appointment of a Special Rapporteur, a Special Representative of the Secretary General, or some other designated individual or group to investigate the situation[44], the designation of one or more expert to consider all aspects, including violations, of a specific theme.
The HRC formulates then recommendations to improve the situation directly to the General Assembly[45]. The assembly after debating, makes non-binding declarations[46], statement of intent (soft law) that might led to subsequent binding measures calling on the state involved to conform to international standards.
“UN organization normally begins to seek protection of human rights through positive steps of encouragement, (but if the abuses carry on), it gradually shift to more critical stances”[47] if needed. Indeed, sometimes “the Security Council authorizes direct protection by outside parties (enforcement action”[48]: armed force intervention, sanctions, or humanitarian action).[49]
The Security Council might also allow sanctions against the state[50]
Individual criminal prosecution might as well be started before the ICC.
Newly since 2006 is the Universal Periodic Review.
3. What aimed to be achieved and what have been done in reality.
In his report august 2009, the special Rapporteur proposed four cores to the government to “pave the road for democracy”[51]. The first one is the review of national legislation in accordance with the new constitution and international obligations. The second one is to progressively release of the prisoners of conscience. The third one is the transition from a military government to a civil government. The fourth one concerns the impartiality and the independence of the judiciary system.
In his last report, he reiterates the four cores and emphasize on the need for accountability for their act (criminal prosecution) of the Burmese generals since “some of these violation may entail categories of crimes against humanity or war crimes under the term of the Rome Statute of the ICC”[52].
What is the aim of it?
Firstly, the transition toward a civil government rather than a military one will let to the settlement of democracy.
The second core is therefore linked with the third core: the independence of the judiciary power. Indeed, “That’s inevitable that each men that has some power is tempted to misuse it”[53]. Consequently, “in order to prevent the power to be misuse, it is necessary that by the state of affair, that the power limits the power”[54]. As a result, if the justice is controlled by the military junta it cannot be independent nor can the legislative power be independent from the executive power: to be independent, each power needs to regulate the others, which is impossible if the military junta rules the whole state.
The cores above will led to the fourth one since an independent parliament could modify the law in accordance to the international provisions. These laws as a result would have rendered even more illegal any arbitrary detention and unfair trial since it violates not only the international law but also the national law that is in accordance with it, giving strong legal basis to a defence during the appearance of an innocent person before a court.
The last point is important because as said in part I, the most of the prisoners of conscience are arbitrary detained after a mockery of trial. This wouldn’t have happened if recommendations, one, two and three had been applied.
It is to notice that the problems are interlinked and that to be solved, the problem of Burma need to be taken as a whole[55].
Moreover, a special representative was appointed in order to promote negotiation with the NLD[56].
Goals Achieved?
Not really. From 2008 the special reporter is copying-pasting his recommendation, emphasising over the reports on different particular recommendations as lastly with individual criminal responsibility: that’s the perfect illustration of the inefficiency of the UN procedure over Burma.
The leaders are still the military junta and Burma is still not respecting its international obligations.
Neither independent is the justice as demonstrated by the example of ASSK[57].
Moreover, only 6 prisoners of conscience in September 2008 and 29 others were released in February 2009. But “highlight that compared to the total number of 2160 prisoners of conscience currently in detention, these releases lack of proportionality”[58]. This represents the release of less than 2% of these. The objective was 100%.
Furthermore, the criminal responsibility of the Burma generals, although a good idea, is not realistic (why: see Part IV).
Moreover we know that China and Russia (permanent members of the security council) veto most of UN actions as they trade[59] with the Regime: they are more interested in profit than in human rights which will maintain the regime in power[60]. Because of that, the armed intervention is not foreseeable. Anyway, such question divides: the cost of intervention against the cost of inaction. We see what happened in Rwanda where genocide was perpetuated without check, but we see as well the failure of the Iraq intervention to bring democracy and respect of human rights. A threat to the international peace might justify an armed intervention. It seems that Corea is exchanging its technology with Burma in return of drugs:[61]Burma having nuclear weapons might be considered threatening.
The UPR[62] haven’t been done on Burma. It had been created to reminds the states their human right responsibility so that it is unlikely to have effect on Burma.
Since Gambari[63] made his first diplomatic visit to the country in 2006, the number of political prisoners has nearly doubled[64]. Much blame is placed on his 'soft' approach; in which he expressed his belief that the junta was willing to change and was taking "positive steps" toward reform: ASSK refused to meet in 2008 because of that.
We have to temper saying that the publicizing of report frequently highlighting Myanmar problem had in a way some effect since
So far are we from the goals, there is despite a good fact finding and standard setting in association with numerous reports raising awareness about human right in Myanmar. The awareness is then relieved by the campaigners and by the press. Indeed, the French Burmese campaigner website that gathers[65] from “Le Monde”, “Libération”[66] articles: there is about one per month at least for the last two years and even if they don’t make the headline, this is not that bad since France doesn’t have historical links with Burma as the UK does. Raising awareness is consequently a success. Moreover the junta is sometimes reacting to the UN actions by releasing some prisoners of conscience for example and even if negotiations between the NLD and the junta are long, they haven’t broke down yet.
Conclusion part III
A negative point: the criterion used by most of the commentators and government in assessing the UN performance is the extent to which it reacts effectively to gross violations. Some of the campaigners[67] say as a result that the UN in not really efficient: some people say that the “UN lacks of teeth”[68].
Nevertheless we have to moderate this criticism highlighting that the aim of the UN is to “promote and encourage”[69] the Human rights and that “a significant amount of the UN important work concentrates on longer term, structural dimension of human right issues: standard setting, promotion of awareness of those standards both within and outside the UN system and the provision of advice and assistance”[70]. Indeed standard setting is a success because it introduced the concept of universal Human rights remedying to the Burma lack of human right law. It is even more a success with the Vienna convention setting guidelines for universal ratification. Moreover Since Kofi Annan oversaw a process of mainstreaming human rights throughout the organization, which meant that bodies dealing with issues such as development, peacekeeping and environment were encouraged to address systematically the human right dimension of their work. This approach remains with Ban Ki-moon and is really important since UN is criticized for its organisation ad-hoc[71].
Section 4: Alternative procedural action
“Enforcement includes and element of compulsion”[72]. Consequently, finding alternative procedures of enforcement is finding how to compel a state to stop a human right abuse through something he is concerned about in such way that he will have to stop the abuse.
NGOs have an important role in the protection of the human right. Indeed, they provide independent information to the treaty monitoring committees whereas states reports are often biased. The NGOs raise awareness and publish about human right issues and abuses[73] as when the blocked Total petrol stations in UK. This awareness led to the development of campaigning against violation of human rights. These campaigners put pressure either on the international community or on their own government for them to enforcement actions.
The limit is that actions taken by states have to be taken by a group of states either because it would otherwise have a weak effect or because states are reluctant to involve themselves in inter states disputes as illustrated by the experience of the ICJ.[74]
One of the great ways to tackle the regime is economic pressure trough the multinational companies: the UN, to encourage the business community to adopt corporate social responsibility, by supporting human right development and protecting the environment, consequently initiated the Global Compact. It sets standards and raises awareness but neither has it means of enforcement nor is the company’s participation dependant on demonstrated progress. We notice the same weakness as the UN: some called it consequently “bluewashing”.[75]
The Regime is fed mostly by gas profits. If the EU declares that economic sanctions are one of its priorities[76] this is unfortunately excluding hydrocarbons because the French want to protect Total, omnipresent and almighty in Burma. Indeed it trades 70% of the Burma’s export trade (0millions per year) and is the first regime’s economic support so that without total it would risk to collapse. According to a confidential report of the IMF obtained by ERI,[77]Gas profits represent 70% of the export trade but had only a small fiscal impact since it contributed to less than 1% of the 2007-2008 budget due to the laundering of this money, whereas it should have represented 57%[78]. [79]
We have as a result to challenge the common assumption that China is the lead external actor: “the enormous revenues generated trough Yanada natural gas production relative to Burma’s economy suggests that Total and the Yadana consortium feed the regime more than any other actor”[80].
Solutions? Creating an Escrow Account[81] where hydrocarbons profits would be monitored by the UN, might be a solution. In escrow account, funds are released when both parties fulfil their obligation: the junta would have respect Human right or at least negotiate or collapse because they need Total’s money. This is a form of conditionality that means to provide to government trade advantage and development help if they show good commitment to the human right.
Total’s argument is to say that another company would replace them[82]: rare are the companies that have the operating technique on the energy market. Nevertheless the energy market in Burma is growing particularly with India (ESSAR, ONGC and GAIL) and China (CNOOC, Sinopec and CNPC). The problem is that those countries don’t really have an ethical trade. Diplomatic negotiations for these countries to cease (limit would be more realistic) investments until negative human rights impacts can be adequately mitigated or creating also an Escrow account are recommended.
Furthermore, Burma is willing to put its gas profits in Andorra’s banks in order to have it in euro at an interesting fiscal rate: Andorra accepted whereas it is governed both by the French president and a Catalan bishop. Criticisable since the former is the president of the so-called country of human right and the other one is a religious man. In addition international pressure needs to be put on Singapore’s Banks that also launder gas profits.
But multinationals are not the only one dealing with Burma: China, Russia, India and Thailand also do. In 2007, the bilateral trade volume between China and Myanmar reached .435 billion[83]. China has to withdraw its cooperation with Burma and so stop feeding the regime. China is really sensible to its influence zone, and not really concerned on the nature of the regime it trades with[84]. Negotiations need to continue in the UN for these countries to act toward human rights.
Pressure needs to be put on Thailand as well since it is the first foreign investor with ,3billions: 53% of the foreign investments[85].
Moreover, India supplies to Burma military and security equipment, munitions, expertise.
Tackling on gas profits wouldn’t worsen the situation of the people of Burma since only 1% instead of 57% goes to the state (the rest going directly to offshore account belonging to the junta). On the contrary boycotts and embargos on other products isn’t a good idea because this would led to unemployment. People would have to leave the countryside for the cities far from their family where they will have to prostitute to survive. As a result the diplomatic actions and pressures should be carefully used in order not to worsen the Burmese situation.
Moreover smart sanctions, on USA&Europe visas, or the European prohibition on weapon export to Burma, need to be upheld.
The ANSEAN adhesion didn’t really change the political climate. Its members are balanced between a non-interventionist politic for the economic reasons mentioned above, and the will not accept the human rights violations: Burma was suppose to be the head of ASEAN which has been refused because of the Human Rights but the constructive attitude policy failed[86]
The criminal responsibility of the Burma generals, although a good idea, is not realistic. Firstly, Burma is not a party to the Rome Statute although the principle of universal jurisdiction might override this difficulty. Under universal jurisdiction anybody could be prosecuted anywhere for serious crimes committed anywhere as with Pinochet that could have been prosecuted by UK as well as Spain. But as highlighted by Geoffrey Bindman[87] why would a person go into a state where he/she could be prosecuted? Otherwise, who will bring them before the ICC unless the regime collapse or an armed intervention is conducted? The former seems to be a dream. The other was considered as difficult (partIII). Another problem is that head of State until they aren’t anymore head of state have immunity[88]: Burma new constitution gives immunity to the generals from prosecution. Technically it is still possible to prosecute the others participating to the human right abuse. «On 24th March the British government announced that it would support the United Nations Security Council referring Burma to the International Criminal Court ».[89] The Burma campaign in UK is backed by 200 MPs.
Some suggested that tackling isolation and increase the medias information for the population to communicate and organize themselves in reaction of what they here in the medias. The broader idea is to defend the civil society. One of the ways of doing so is to defend the defenders for example the political opposition that suffered as seen in part(I). Nevertheless as said in partIII this has failed and only few political opponents has been released. There is consequently few hopes for the 2010 elections if we can still call it “elections”: the junta’s effort toward democracy these last two year seems to be a mirage, as demonstrated by the march election laws[90] excluding most of the opponents, including ASSK. Why monitoring elections if most of the political opponents are in jail? They need first to be released.
Fighting corruption whereas we can’t even stop gross violation of human rights doesn’t seem realistic neither for the moment: the judiciary power needs first to become independent and unfortunately that will be the day.
Conclusion part IV
To tackle arbitrary detention and unfair trial Burma’s problems need to be taken as a whole.
For that purpose, the most efficient strategy seems to be the economic one trough hydrocarbons profits.
Some countries have consequently a crucial role to play: such as France trough Total and Andorra; or such as Russia, China, India and Thailand that have to consider the human right in their investments on an “ethical market”.[91]
CONCLUSION
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Brassil, B. B. (2007). Legal Studies - Your step by step guide to HSC Success.
Burma Campaign UK. (n.d.). News. From For Human Rights, Democracy & Development in Burma: http://www.burmacampaign.org.uk/index.php/news-and-reports/news-stories/burma_human_rights_in_freefall_since_gambaris_appointment
Campainers, F. B. (n.d.). info birmanie. From http://www.info-birmanie.org/: http://www.info-birmanie.org/
Demont-Pierot, J. P. (2 йил 2009-february). Birmanie : quand le silence se fait complice - Burma: when the silence is a complice. Agoravox .
EarthRights International. (September 2009). TOTAL IMPACT : The Human Rights, Environmental, and Financial Impact of Total and Cheron's Yadana Gas Project in Military-Ruled Burma (Myanmar).
EarthRights International. (December 2009). TOTAL IMPACT 2.0: A response to the French Oil Company Total Regarding Its Yanada Natural Gas Pipeline in Military-Ruled Burma Myanmar.
Florence Compain. (2009 йил 2nd-july). Liaison dangereuses entre la Birmanie et la Corée du Nord - dangerous liaisons between Burma and North Korea. LE FIGARO .
Henry J. STEINER, P. A. (2007). International Human Rights In Context - third edition. Oxford Press University.
Info Birmanie - French Burma campainers' website. (n.d.). La birmanie dans le presse (burma in the press). From Info Birmanie: http://www.info-birmanie.org/index.php?option=com_content&task=view&id=44&Itemid=60
Kauffmann, P. B. (2009 йил 20th-february ). Les pays occidentaux réfléchissent à une nouvelle stratégie d'approche à l'égard de la Birmanie - Occidental countries try to find a new approch to deal with Burma. LE MONDE .
Malanczuk, P. (1997). Akehurst's modern introduction to international law, page 39 (7th Edition ed.).
Maud Barlow senior adviser on water issues to the President of the United Nations General Assembly. (2008 йил 10th-december). UN's new water advisor calls the Global Compact “bluewashing”. http://globalcompactcritics.blogspot.com/2008/12/uns-new-water-advisor-calls-global.html .
Montesquieu. (1776). De l'esprit des lois.
Office of the United Nation, H. C. (n.d.). Office of the United Nation, High Commisser for the Human Rights. From http://www2.ohchr.org/english/issues/detention/
Richard Lloyd Parry, A. E. (2010 йил 9th-march). Burma publishes new election laws. The Times .
Rue 89. (2009 йил 11th-september). Total en Birmanie : la France va-t-elle agir? - Total in Burma : Will France do something? Rue 89 .
Schwarz, G. (2009 йил 20th-november). Un rire de résistance - the laugh at the oposition. Le Monde .
Secretary General. Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post Conflict Societies.
Smith, R. K. (2007). Texbook on International Human Rights (3rd Edition ed.).
Smith, R. K. (2004). Textbook on International Human Rights (2nd Edition ed.).
Special rapporteur - Thomas Ojea Quinatana. (24th August 2009). Situation of Human rights in Myanmar.
Thomas George Weiss, D. P. (2007). The United Nation and changing world politics.
Thomas Ojea Quitana - Special Rapporter. (10th March 2010). Progress report of the Special Rapporter on the situation of human rights in Myanmar. United Nations.
UN, T. O.-S. (11th march 2009). Report of the Special Rapporteur on the situation of HR in Myanmar. United Nations.
UNGER, A. (2010). International Protection of Human Rights - teaching and learning materials.
United Nations. (n.d.). United Nations Documentation Research Guide - Human Right. From United Nations Documentation: http://www.un.org/depts/dhl/resguide/spechr.htm#treaty
upi.com. (2007 йил 9th-12). China-Myanmar trade increased in 2007 - business news. From http://www.upi.com/Business_News/2007/12/09/China-Myanmar-trade-increased-in-2007/UPI-65471197238224/
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Working Group on Arbitrary Detention. (n.d.). Working Group on Arbitrary Detention Individual Complaints, Urgent Appeals, Deliberations. Retrieved 2010 йил 15-march from http://www2.ohchr.org/: http://www2.ohchr.org/english/issues/detention/complaints.htm#urgent
Working Group on Arbitrary Detention. (2010 йил 17-03). Working Group on Arbitrary Detention Individual Complaints, Urgent Appeals, Deliberations. From http://www2.ohchr.org/: http://www2.ohchr.org/english/issues/detention/complaints.htm
[1] Secretary General. Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post Conflict Societies. (S/2004/616) – Kofi Annan
[2] The term Burma was the colonial name used by the British. For that reason the current regime insist on the Burmese word Myanmar being used. However, given the regime’s brutal exercise of power since 1962, it is generally accepted by campaigners and exiled political activists that the term Burma should be used.
[3] For the purpose of the essay we will use Aung San Suu Kyi initials due to the words limit.
[4] According to the special Rapporteur :UN, T. O.-S. (11th march 2009). Report of the Special Rapporteur on the situation of HR in Myanmar. United Nations.
[5] Bouddhist monk imprisonned for his action in favour of the political prisonners and freedom of expression Amnesty International. (2009, November). Actions - Myanmar - U Gambira. Récupéré sur Amnesty International France: http://www.amnesty.fr/index.php/amnesty/agir/campagnes/personnes_en_danger/actions/myanmar_u_gambira
[6] For the purpose of this essay we will write ASSK for Aung San Suu Kyi due to the world limit
[7] Thomas Ojea Quitana - Special Rapporter. (10th March 2010). Progress report of the Special Rapporter on the situation of human rights in Myanmar. United Nations.
[8] Schwarz, G. (2009, november 20th). Un rire de résistance - the laugh at the oposition. Le Monde .
12 Working Committe on Arbitrary Detention. (s.d.). Working Group on Arbitrary Detention Individual Complaints, Urgent Appeals, Deliberations . Consulté le march 15, 2010, sur http://www2.ohchr.org/: http://www2.ohchr.org/english/issues/detention/complaints.htm#urgent
[10] In such cases, an urgent appeal is sent to Government of the State concerned through diplomatic channels, requesting that the Government should take appropriate measures to ensure that the detained person’s right not to be deprived arbitrarily of his or her liberty and to fair proceedings before an independent and impartial tribunal as well as the right to life and to physical and mental integrity are respected.
[11] Agence France Presse - French Press Agency. (2010, march 11). Aung San Suu Kyi pourrait être exclue de son parti - ASSK migh be excluded from the NLD. Liberation (french newspaper).
[12] Although not binding in principle
[13] AMNESTY INTERNATIONAL. (16/02/2010). The repression of ethnic minority activists in Myanmar.
[14] Must be in accordance with article 4 of the International Covenant on Civil and Political Rights
[15] Article 9(1) of the ICCPR : “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”
[16] Resolution 1991/42, as clarified by resolution 1997/50
[17] Working Group on Arbitrary Detention. (2010, 03 17). Working Group on Arbitrary Detention Individual Complaints, Urgent Appeals, Deliberations. Récupéré sur http://www2.ohchr.org/: http://www2.ohchr.org/english/issues/detention/complaints.htm
[18] In order to evaluate the arbitrary character or otherwise of cases of deprivation of freedom entering into Category 3, the Working Group considers, in addition to the general principles set out in the Universal Declaration of Human Rights, several criteria drawn from the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and, for the States parties to the International Covenant on Civil and Political Rights, the criteria laid down particularly in articles 9 and 14 thereof.
[19] UNGER, A. (2010). International Protection of Human Rights - teaching and learning materials. Page 9
[20] American Law institute (1987) volume 2, 161
[21] Henry J. STEINER, P. A. (2007). International Human Rights In Context - third edition. Oxford Press University.
[22] American Law institute (1987) volume 2, 161.
[23] We will se later that it could be binding through customary law
[24] This is not the provisions themselves that have been violated but the rights, provision only gave birth to the customary rule.
[25] AMNESTY INTERNATIONAL. (16/02/2010). The repression of ethnic minority activists in Myanmar.
[26] Articles 3 and 9 of the UDHR and also article 9 of the ICCPR
[27] Articles 10 and 11 of the UDHR and the article 14 of the ICCPR
[28] as reaffirmed by the Special Rapporteur in his report, n°120, Thomas Ojea Quitana - Special Rapporter. (10th March 2010). Progress report of the Special Rapporter on the situation of human rights in Myanmar. United Nations.
[29] because the legislature and the judiciary form a part of the state just as much as the executive does.
[30] Malanczuk, P. (1997). Akehurst's modern introduction to international law, page 39 (éd. 7th Edition).
[31] Opinio juris
[32] Trough mechanism such as the separation of powers: see Montesquieu that said that « without a clear separation of power there is no true constitution » De l’esprit des Lois, 1748.
[33] See for example the Outreau trial said by the French president as being a judicial disaster: The simpletons got between 100 000 and 250 000 Euros damages. It was indeed a 2004 criminal trial in Northern France on various counts of sexual abuse against children, where people convicted where not guilty due to both a witness lying and errors made by the judge in the procedure.
[34] also called “political organs”: Page 741, Henry J. STEINER, P. A. (2007). International Human Rights In Context - third edition. Oxford Press University.
[35] ibid
[36] i.e. the set of issued codified in the legal instrument
[37] i.e. only those countries that have ratified the legal instrument
[38] United Nations. (s.d.). United Nations Documentation Research Guide - Human Right. Récupéré sur United Nations Documentation: http://www.un.org/depts/dhl/resguide/spechr.htm#treaty
[39] As said in part II, treaties that can be used to our abuse in context.
[40] Page 740, Henry J. STEINER, P. A. (2007). International Human Rights In Context - third edition. Oxford Press University.
[41] Page 125, Thomas George Weiss, D. P. (2007). The United Nation and changing world politics.
[42] See General Assemble Resolution 60/251 Para 3 « Council should address situation of violations of human rights, including gross and systematic violations, and make recommendations thereon ».
[43] UNGER, A. (2010). International Protection of Human Rights - teaching and learning materials.
[44] Resolution 43/115 for example appointed the Professor Alston.
[45] Since the 2006 reform.
[46] not legally but morally being indicative of a majority opinion
[47] Page 125, Thomas George Weiss, D. P. (2007). The United Nation and changing world politics
[48] Korea, 1950 for example.
[49] Page 125, Thomas George Weiss, D. P. (2007). The United Nation and changing world politics.
[50] See Iraq sanctions for example.
[51] Special rapporteur - Thomas Ojea Quinatana. (24th August 2009). Situation of Human rights in Myanmar.
[52] Thomas Ojea Quitana - Special Rapporter. (10th March 2010). Progress report of the Special Rapporter on the situation of human rights in Myanmar. United Nations.
[53] « c’est une expérience éternelle que tout homme qui a du pouvoir est porté à en abuser » Montesquieu. (1776). De l'esprit des lois.
[54] Ibidem « Pour qu'on ne puisse abuser du pouvoir, il faut que, par la disposition des choses, le pouvoir arrête le pouvoir »
[55] See conclusion part III with process of mainstreaming human rights throughout all the UN activities.
[56] Ibrahim Gambari
[57] Not released whereas she should be.
[58] Special rapporteur - Thomas Ojea Quinatana. (24th August 2009). Situation of Human rights in Myanmar. Page 11.
[59] In 2007, the bilateral trade volume between China and Myanmar reached .435 billion - upi.com. (2007, 12 9th). China-Myanmar trade increased in 2007 - business news. Récupéré sur http://www.upi.com/Business_News/2007/12/09/China-Myanmar-trade-increased-in-2007/UPI-65471197238224/
[60] see part IV for explanation of why this will maintain the regime
[61] Florence Compain. (2009, july 2nd). Liaison dangereuses entre la Birmanie et la Corée du Nord - dangerous liaisons between Burma and North Korea. LE FIGARO .
[62] Universal Periodic Review
[63] Special representative for the UN.
66 Burma Campaign UK. (s.d.). News. Récupéré sur For Human Rights, Democracy & Development in Burma: http://www.burmacampaign.org.uk/index.php/news-and-reports/news-stories/burma_human_rights_in_freefall_since_gambaris_appointment
[65] Info Birmanie - French Burma campainers' website. (s.d.). La birmanie dans le presse (burma in the press). Récupéré sur Info Birmanie: http://www.info-birmanie.org/index.php?option=com_content&task=view&id=44&Itemid=60
[66] Among others gathered there, Libération and le Monde are amongst the greatest French newspapers.
[67] See info-birmanie.org for example.
[68] Smith, R. K. (2004). Textbook on International Human Rights (2nd Edition ed.).
[69] Article 1 of the UN charter.
[70] Ibid (1).
[71] P80, Smith, R. K. (2004). Textbook on International Human Rights (éd. 2nd Edition).
[72] Page736, Henry J. STEINER, P. A. (2007). International Human Rights In Context - third edition. Oxford Press University.
[73] Page 36, Brassil, B. B. (2007). Legal Studies - Your step by step guide to HSC Success.
[74] Page 76, Smith, R. K. (2007). Texbook on International Human Rights (éd. 3rd Edition).
[75] Maud Barlow senior adviser on water issues to the President of the United Nations General Assembly. (2008 йил 10th-december). UN's new water advisor calls the Global Compact “bluewashing”. http://globalcompactcritics.blogspot.com/2008/12/uns-new-water-advisor-calls-global.html .
[76] Bakchich. (2008, mach 25th). Les démocrates birmans veulent séquestrer Total. Bkchich
[77] Part III, page 43, EarthRights International. (September 2009). TOTAL IMPACT : The Human Rights, Environmental, and Financial Impact of Total and Cheron's Yadana Gas Project in Military-Ruled Burma (Myanmar).
[78] And so could reabsorb the Burma budget deficits
[79] Rue 89. (2009, september 11th). Total en Birmanie : la France va-t-elle agir? - Total in Burma : Will France do something? Rue 89 .
[80] Part III, page 41, EarthRights International. (September 2009). TOTAL IMPACT : The Human Rights, Environmental, and Financial Impact of Total and Cheron's Yadana Gas Project in Military-Ruled Burma (Myanmar).
[81] « Recommendation to the international community » p 28, EarthRights International. (December 2009). TOTAL IMPACT 2.0: A response to the French Oil Company Total Regarding Its Yanada Natural Gas Pipeline in Military-Ruled Burma Myanmar.
[82] Bakchich info. (7th March 2008). Birmanie, le nouvel eldorado de l'énergie - Burma, the new eldorado of the energy industry. Bakchich info - Business .
[83] upi.com. (2007, 12 9th). China-Myanmar
[84] Demont-Pierot, J. P. (2nd, february 2009). Birmanie : quand le silence se fait complice - Burma: when the silence is a complice. Agoravox .
[85] « La fête des voisins – the neighbours party », Bakchich info. (7th March 2008). Birmanie, le nouvel eldorado de l'énergie - Burma, the new eldorado of the energy industry. Bakchich info - Business .
[86] Kauffmann, P. B. (2009, february 20th). Les pays occidentaux réfléchissent à une nouvelle stratégie d'approche à l'égard de la Birmanie - Occidental countries try to find a new approch to deal with Burma. LE MONDE .
[87] Conference on Tuesday April 27th at London South Bank University organized by Sir Andy UNGER.
[88] Even if they became head of a state as a result of a coup : see Pinochet case.
[89] Burma Campaign UK. (n.d.). News. From For Human Rights, Democracy & Development in Burma: http://www.burmacampaign.org.uk/index.php/news-and-reports/
[90] Richard Lloyd Parry, A. E. (2010, march 9th). Burma publishes new election laws. The Times
[91] Kofi Annan
