Recent statements from international investor groups (Oxford Business Group (OBG); The British, Australian, American, European, Italian, German and French chambers of commerce in Myanmar) and investor home states such as Japan extolling the virtues of investment and economic development as a panacea for many of Myanmar’s ills begs the question: What is development and how is it connected with the rule of law and human rights? How should the international community – aside from investors whose primary motivation is profit – conduct development engagement with states who systematically violate human rights? While no one promotes further isolation for Myanmar, surely the United Nations, international development organisations and other states must continually put human rights at the centre of their agenda and confront uncomfortable violations rather than leave them unmentioned in the name of engagement.
At a recent conference on the Sustainable Development Agenda 2030 and The Rule of Law at the Prolaw Rule of Law and Development Institute in Rome, I gave a related talk using Myanmar as an example. The text of my intervention is as follows:
As economic and political reforms took hold in Myanmar, the country was viewed as a great experiment in Business and Human Rights engagement. Was it possible that a country could emerge from isolation and join the global economy while improving human rights and avoiding the resource curse? Could the transition, assisted by international development engagement, increase investment and the rule of law while avoiding the pitfalls that have befallen other developing states? Could Myanmar uniquely avoid or at least mitigate corruption and cronyism, rising inequality, widespread land grabbing, environmental degradation and the protection of investors at the expense of local communities that feature in societies where impunity and unaccountability restrict access to justice and encourage human rights abuse? Would the rule of law and human rights really guide transition and development? Or would it be business as usual?
In this talk I will discuss Myanmar’s unique transition and its tendency towards ‘rule by law’ and ‘tranquillity’ and consequences for the rule of law and human rights. In doing so, I criticise the international community’s policy of engagement with the regime when it meant putting forward the rule of law ‘lite’, as in minus human rights. I ask what the Sustainable Development Agenda’s Goal 16, which puts the rule of law and human rights at the centre of development rhetoric, actually means in practice. Is it a sagacious manoeuvre to ensure recalcitrant states make human rights a priority or is it a capitulation, an admission that strategic, economic and political engagement trump human rights?
In order for SDG 16 to be meaningful, it must mean a rights-based approach to development that ensures participation, non-discrimination, equality and attention to vulnerable groups. This requires access to justice and accountability for violations of rights to be protected in law. Key to this is institutional reform designed to prevent and ensure non-repetition of human rights violations – in other words a judiciary that balances power. It must hold powerful perpetrators accountable and be independent enough to hear challenges to government policy. It must be able to decide against the government (and in Myanmar’s case, the military) when it contravenes the law. If not, a rule of law ‘lite’ emerges that preserves the status quo, increases inequality, and fosters a culture of impunity in which governments disregard human rights and security forces commit crimes against humanity.
The palpable optimism of the international community following the reforms from 2011 should have been tempered by a better understanding of what a ‘discipline-flourishing’ democracy actually means. Transition in Myanmar is not an uprising of democratic forces over military dictatorship. It is a planned transition where the military and key individuals of the past regime remain directly in control or highly influential in the political, economic, social and security institutions of governance. The judiciary is not independent or capable of upholding human rights and the rule of law. Constitutional provisions provide impunity and protect the military’s role. Moreover, the military maintains vast networks of economic power and influence. I’ve heard the transition described as the ‘retirement plan for the generals.’ As many foreign investors have found, it is difficult to do business in Myanmar without working directly or indirectly with the military or its ‘crony’ businessmen.
If that was not enough, the obvious problems with access to justice and the independence of the judiciary should have been a warning. The military does not answer to the judiciary and instead runs its own system of accountability. Old colonial laws are still on the books and are misused to violate human rights. New laws have been promulgated that do not meet international standards for the protection of human rights. Constitutional rights cannot be asserted in the courts by civilians. The judiciary lacks capacity and is vastly under resourced. International standards applicable to arrest and detention as well as fair trial standards are not observed. The executive represented by the Office of The Attorney General exercises disproportionate influence over the judiciary, does not show a functional independence and, while quick to impose the rule of law on those opposing the government or military, does not hold human rights violators accountable. Legal education has been undermined and the Bar Association remains too closely linked to the executive. Corruption is rife. Not surprisingly, the public distrusts the legal system as a whole, which undermines the concept of the rule of law itself.
Yet political engagement and economic investment prevailed as policy. Remember President Obama’s ‘good news story’? Sanctions were dropped. Investors sought out human rights experts as part of their due diligence but did not want to hear anything that countered the prevailing narrative that Myanmar is open for business. We asked them what level of human rights risk assessment resulted in the decision not to invest; usually the exercise was to mitigate risk to their brand rather than prevent human rights violations. Likewise, diplomats wondered aloud why human rights groups were so ‘gloomy’ when everything was improving so fast. The international financial organisations and their dominant member state representatives put forward the usual neoliberal development strategies, focussing on protecting investment, privatisation and deregulation.
The Sustainable Development Agenda 2030 puts the rule of law at the centre of the international community’s development goals. It ‘mainstreams’ the rule of law throughout and Goal 16 on Peace, Justice and Strong Institutions. Target 16.3 commits the international community to: ‘Promote the rule of law at the national and international levels and ensure equal access to justice for all’. It provides for a legal dimension to development that uses the language similar to human rights but omits the law. The SDGs emphasise access to justice and the principle of equality before the law as well as the importance of quality, inclusive institutions. Despite the watering down of its rule of law provisions during the drafting process, there is widespread agreement on the SDGs and therefore on the centrality of the rule of law to the development agenda.
Human rights organisations have now begun to ask what this means in practice. They expect that the rule of law is contingent upon human rights. But will the acknowledgement of the rule of law in the SDGs enhance or undermine international human rights law treaty commitments? After all, legally binding commitments to the rule of law and human rights are already in place. Even Myanmar has signed the Covenants on Economic, Social and Cultural Rights, on the Elimination of All Discrimination Against Women, on the Rights of the Child, and of those with Disabilities. It is also bound by customary international law principles regarding the rule of law and human rights, particularly in access to justice and equality before the law.
The state already has the obligation to protect human rights even if this means slowing economic development until legal protections are in place. This is particularly important in a transitional society with weak governance. Do rule of law provisions in the SDGs ensure that these commitments are not disregarded during engagement with the international community in a race to the bottom to attract or promote investment? Or do the justify development engagement with human rights violating governments without the inconvenience of legally binding implementation or enforcement mechanisms?
Development practice seems to indicate that the SDGs do not strengthen human rights law commitments. In Myanmar, for example, few members of international community were willing to publicly acknowledge that widespread human rights abuses indicate a culture of impunity that escalates quickly into crimes against humanity. The international community seemed convinced that the ongoing armed conflicts and violations of all types of human rights across the country would change with economic development. Even the arrest and detention of hundreds of Rohingya men and boys without trials or representation in late 2016 and early 2017 did not dissuade the international community from its policy of engagement despite constant warning from human rights organisations. The international community seemed to want to talk rule of law but not to mention topics off limits such as human rights violations themselves. It seems clear that the need to secure strategic interests and investment opportunities remain paramount considerations.
The danger of this approach to mainstreaming the rule of law is that human rights become a separate part of the agenda to be set aside when necessary. As a result, development and the rule of law can become a series of technical fixes, judicial implants and tick-box exercises that do not address the underlying injustices and inequalities that fuel conflict, instability and human rights violations. In order to engage, the international community can adopt a rule of law ‘lite’ approach, that does not address human rights concerns. In this scenario, no one says Rohingya in exchange for development engagement. Capacity building for the police, prisons and courts can take place while impunity is rife. Moral – and legal – legitimacy is ceded to advance political, economic and strategic interests.
The Rule of Law ‘Lite’ approach promotes engagement with authoritarian governments but may encourage governance antithesis to the realisation and protection of human rights. Authoritarian capitalism needs forced stability and silenced opposition to promote investment and development. It means disregarding the rights of marginalised people and the destruction of the natural environment in the name of growth. In Myanmar the NLD created a Rule of Law and Tranquillity Committee rather than a Rule of Law and Human Rights Committee. Regional neighbours offer investment without human rights and environmental safeguard conditions. Does the international community need to engage this approach to remain relevant?
For the Sustainable Development Agenda’s Goal 16 (as well as other SDGs with rule of law aspects) to counter human rights violations it must be guarded against the Rule of Law ‘Lite’ approach. The international community must take a principled stand against rule by law culture and impunity. It must insist on and support institutional reform of the state security apparatus and judiciary to ensure access to justice as well as a balance of power. It must support domestic civil society initiatives in this regard and promote meaningful participation and accountability in governance secured by law.
Reform at the national and international level is a long-term process that normally lags far behind economic and political reform. The approach is not popular with powerful voices calling for rapid economic development and massive investment without these protections in place. Supporting it and ensuring that human rights and environmental protections are central calls for strong leadership at the international and national levels. But that is another issue for another conference…