Myanmar’s new policy of openness to the international community requires legal reform based on international standards. Foreign investors want security for their assets. Human rights advocates want rights guaranteed. Both require the implementation of international agreements at the national level. So far Myanmar’s legal reform has been rapid in the field of investment protection. The government has acceded to key conventions that guarantee investor’s rights. Conversely, Myanmar has not ratified key international law treaties that protect human rights. This unbalanced approach undermines the development of the rule of law and is bad for business.
Foreign investors demand stability and predictability. They want national law to be clear and transparent. As a result, the government of Myanmar has rushed through the country’s Foreign Investment Law of 2012. This has helped to clarifying the rules of a murky system inline with the Government’s policy of welcoming foreign investment. The law sets out the permitted activities for foreign investors and introduces regulations on applying for an investment license, the use of land, transfer of shares, remittance of foreign exchange and the taking of security on land and buildings. Yet uncertainty prevails. What can ensure investors that the government will not change the rules again? How can they be assured against the expropriation of their investment?
Investors want access to international arbitration guaranteed through bilateral investment treaties. They want them modeled on international standards put forward by organizations such as the International Centre for the Settlement of Investment Disputes (ICSID) and the United Nations Commission on International Trade Law (UNCITRAL). Keen to encourage investment, Myanmar has deposited with UNCITRAL its instrument of accession to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the New York Convention. The Convention entered into force for Myanmar on 15 July 2013. Myanmar has indicated interest in joining ICSID and drafting more bilateral investment treaties guaranteeing international arbitration in the near future.
This rapid progress is in contrast with reform in the area of human rights. Myanmar is not party to key treaties such as the International Covenant on Civil and Political Rights or the International Covenant on Economic Social and Cultural Rights. They have signed and ratified only the Convention on the Rights of the Child and the Convention on the Elimination of Discrimination Against Women. Neither of these are enforceable beyond the written submission of periodical reports to the respective committees created by the treaties. Treaties that set out international standards and are expected to be implemented in national law have been ignored. The 2013 Report of the UN Special Raporteur on the situation of human rights in Myanmar highlights a litany of violations stemming from the lack of a rule of law culture including the detention of political prisoners, restrictions to freedom expression and association, a full range of economic, social and cultural rights emphasizing land and housing rights violations, the treatment of minorities and possible war crimes committed in ongoing ethnic conflicts. The report recommends a variety of legal and constitutional reforms inline with international human rights standards but has been met by a worrying lack of enthusiasm on the part of the government.
The government of Myanmar, in order to shed its poor reputation concerning the rule of law, needs to extend legal reform to human rights protection. The ratification and implementation of key human rights treaties will improve the perception of legitimacy nationally and internationally. The Economist has pointed out that new investment is perceived by local communities as illegitimate projects foisted upon them by central government with no participation or accountability leaving them waiting for the dividends of political reform. Only the enjoyment of human rights during transition and development will foster the stability essential for economic growth. Until stability and legitimacy are generated, investors, not matter how socially accountable, risk being associated with a human rights violating regime.