Tuesday, 19 February 2013

The 2008 Burmese Constitution: may fail to reach international law requirements, certainly fails to reach the requirements of humanity


by Thomas MacManus

The Burmese military doesn’t answer to the Burmese president, parliament or anybody else. What are the consequences of this arrangement for the international legal status of Burma? And, more importantly, are the people of Burma protected from this vicious military regime?


The military cannot be held to account under the latest constitution

In 2008, the third Burmese constitution was passed following a referendum process that suffered from widespread accusations of voter intimidation and fraud, the anecdotal evidence of which is readily available. For example, former Burmese police office Soe Min explained that he was ordered to discard any 'No' votes and replace them with fake 'Yes' ballots during the referendum.

This constitution gives the Burmese military (known as the ‘Tatmadaw’) 25% of parliamentary seats in both houses (with another 3-4% probably held by military proxies) and therefore an effective veto of any constitutional amendment, which requires over 75% of parliamentary votes. Under the constitution, the uniformed Commander-in-Chief of the armed forces, Min Aung Hlaing, does not answer to the President of Burma, Thein Sein – or anybody else for that matter.

Article 20 of the Burmese constitution formalises the military’s independence from parliament and has led some to argue that Burma does not fit with the international legal definition of a sovereign state. But before looking at the international law connotations, it may be helpful to look at the de facto situation on the ground.


Unsuccessful attempts at controlling the military

Thein Sein ‘ordered’ a cessation of military activities in Kayin (Kachin) State in December 2011, and has sent Min Aung Hlaing “two loosely worded letters asking Tatmadaw units to stop fighting in Kachin State unless attacked” but the conflict continues to escalate. A unilateral ceasefire was announced by Thein Sein on 19 January 2013 and was broken less than two days later. The president’s public announcements appear to have no effect on the military.

Political scientist Mary Callahan argues (PDF) that another potential mechanism for making the military accountable is the constitutional requirement for lower-house approval of the national budget. But the military controls the lion’s share of the country's biggest corporations and its lucrative illicit poppy industry keeps the cash flowing. The rebels of the Shan State Army are often outstripped when it comes to profiting from drugs: the example of Shan state shows that drug production is highest in Tatmadaw-controlled areas. Furthermore, it is unclear where the money from the national budget actually goes; “the military cannot afford to properly pay its own 350,000 troops despite receiving almost a quarter of the national budget”, a recent report says.


State sovereignty and the 2008 Constitution

The legal separation of military and government as suggested by the constitution raises an interesting point of international law – can Burma be considered a sovereign state?

There are two schools of thought when it comes to statehood: the constitutive theory and the declarative theory. The constitutive theory of statehood, developed in the 19th century, claims that a state can only be a member of the international community of states if that country is so recognised by other sovereign states. The declarative theory, as expressed in the 1933 Montevideo Convention and the European Economic Community Opinions of the Badinter Arbitration Committee, defines a state as a person in international law if it has a defined territory, a permanent population, a government and a capacity to enter into relations with other states. Recognition statements by other sovereign states are therefore not required.

Burma appears to pass both tests. Obama’s recent official visit to the country has cemented recognition by the international community. And the Montevideo requirements are well settled in the case of Burma. However, the Global Justice Centre, using Black’s Law Dictionary’s (1991) definition of ‘sovereignty’, has recently argued that Burma is not a sovereign state, since the 2008 Constitution grants the Tatmadaw “complete autonomy and supremacy over the civilian government”. The civilian government is therefore unable to enforce any erga omnes international law obligations – that is, international law obligations that all sovereign states have to the international community of states – as set down by treaty (including the UN Charter) or by international customary law.


The government’s lack of control is a serious concern for Burma’s citizens

Of course, there is probably no question that Burma is de facto a sovereign nation state. Pakistan’s government has recently told the Pakistani Supreme Court that it has no operational control over the military but few would argue Pakistan’s claim to statehood (despite the fact that borders may not be fully delimited in relation to Pakistan’s and India’s competing claims on Kashmir, as would be required by Montevideo). Hence, the real question is whether Burma’s constitution is compatible with international law. To answer it, a reference could be made to the International Court of Justice for an advisory opinion.

But legal questions aside, the issue of the Burmese government’s lack of control over the military is one of serious concern for the citizens or Burma. As was the case before the adoption of the 2008 constitution, the Burmese military continues to be responsible for indiscriminate attacks on civilians. However, chapter 14 (s445) of the constitution provides immunity to all military officials from being tried or prosecuted. So therefore, not only are the elected representatives of the people of Burma unable to control the Burmese military, they cannot hold them to account for their continuing atrocities.

Footnote
This blog refers to the state as Burma in solidarity with those resisting the oppressive ruling regime which changed the name from Burma to Myanmar in 1989 without consulting the people of Burma.


Dr Thomas MacManus is Postdoctural Research Fellow at the International State Crime Initiative and is based at King’s College London’s School of Law.

Monday, 4 February 2013

Global Drug Policy IV: Can the international development community become more drugs-savvy?

By Markus Schultze-Kraft

Yes, it can – and it should.

Let me explain. 

In 2010, the Melbourne-based Nossal Institute for Global Health released the report Dependent on Development. The interrelationships between illicit drugs and socioeconomic development (PDF). Based on a sweeping review of the specialized English-language literature of the past twenty years, the document provides a clear and succinct summary account of the interdependencies of development and illicit drug production, trade and use. Wisely staying clear of controversial debates about ‘legalization’, ‘decriminalization’ and ‘alternative development’, the Australian scholars probe the available evidence to test the hypothesis that “equitable socioeconomic development is necessary for successful control of illicit drugs, while effective and human rights based illicit drug control is required to foster sustainable socioeconomic development”. 

Nossal’s findings will not necessarily come as groundbreaking news to anyone who has worked in this field before. But they are accurate and persuasively presented: both “poor” and “enhanced development” is associated with illicit drug production, use and trade; and illicit drug production, use and trade tends to have negative effects on development, particularly in the longer term. The identified factors that shape these inter-relationships range from rural underdevelopment, violent conflict and socioeconomic deprivation to corruption, high levels of crime and the disruption of social structures. 

It takes two to tango - drugs and development 

The key message of Nossal’s report is that headway on the development front in countries affected by the production, use and trade of illicit drugs is dependent on drug policies that are not principally geared at suppressing the ‘drugs problem’, as has been the case in the past decades. Likewise, the effective, human rights-based control of illicit drugs and their negative impacts in source, transit and consumer countries (a distinction that is becoming increasingly outdated) hinges on drugs-savvier development interventions.

Tasking the international development community 

Yet we know more about the negative effects of the current ‘orthodox’ counter-drug policies than we do about the positive impact that more appropriate, drug-savvier development initiatives could have on illicit drug production, use and trade in poor and vulnerable countries. In effect, the international development community has been conspicuously silent when it comes to taking a stance and making propositions to address this big and growing issue. Just recall the 2011 World Development Report. It identifies illicit drug-trafficking and the associated organized crime and violence as major ‘external stresses’ for fragile and conflict-affected states. That may in part be correct. But the World Bank stops short of closing the loop by failing to acknowledge the negative effects of the current counter-drug policies on those countries and the importance of coming up with more effective development strategies to deal with the problems associated with the production, use and trade of illicit drugs.

Building bridges, strengthening the evidence, reforming policy 

On 6-8 February 2013, the Brighton-based Institute of Development Studies (IDS) will hold the Global Drug and Development Policy Roundup. Recognizing the importance of engaging the international development community more deeply in addressing the global drugs issue, the event, which is supported by the Open Society Foundations’ Global Drug Policy program, will gather a good number of development and drug policy experts and decision-makers from across the world. The aim is to contribute to building bridges between the two policy communities; think hard about how the evidence base for drugs-savvy development interventions can be strengthened and who should be involved in this; and how the cooperation between development and drug policy folks can be improved.

This will not be an easy task

This program might seem quite straightforward and one would think that getting the ‘right’ people around the table would not be a major issue. As it turned out, it was – particularly for some of the larger development organizations, both governmental and non-governmental. Reaching out to them, the IDS-based organizers found that there was lacking interest, some reluctance and even a sense of confusion: why would a development agency care about illicit drugs and why would it be expected to know something about this subject matter and do something about it? Well, the Nossal report’s bottom line is that development agencies had better develop an interest and expertise in the issue of illicit drugs. Ignoring the ‘elephant in the room’ will not help them to conduct their business effectively and legitimately in a growing number of poor and vulnerable countries. The Global Drug and Development Policy Roundup seeks to support the development community to engage constructively in this debate and, hopefully, become a little more drugs-savvy.

Watch this space.

Interested in reading more? Check out Markus' other posts on this issue: