Upholding Rights In Political Turbulence: Challenges and Opportunities for the U.N. Special Procedure on the Human Rights Situation in Post-Coup Myanmar

The Special Procedure on the Situation of Human Rights in Myanmar (also called the Myanmar Mandate), created by the Commission on Human Rights resolution E/CN4/1992/58 in 1992, is among the oldest U.N. mandates in operation. The mandate functions to uphold human rights in the political waves in tandem with the democratic transition of the country. Its establishment followed the appalling military brutality caused by the 1988 mass uprising against military rule. With the country once again in the throes of military dictatorship, the Myanmar Mandate is more relevant than ever.

After ostensibly stepping behind the central political stage in 2011, the Myanmar military (Tatmadaw) surged back to power through a coup d’état on February 1, 2021. The new military junta, led by Commander-in-Chief of Defense Services Min Aung Hlaing, seized power and declared a year-long state of emergency.

In overthrowing the rule of law, the coup cast grim clouds over the once-fledgling democracy and put its fragile peace processes on hold indefinitely. With the junta’s reaction to peaceful protest and civil disobedience shifting from restrained to relentless, Myanmar’s civilians are experiencing prolonged violent repression at the hands of their government.The unlawful power seizure has resulted in the arrest, detention, and forced disappearance of elected parliament members, protesters, and civilians, all of which speaks to a fundamental breakdown in human rights and freedom in Myanmar.

Amid the drastic political turbulence, the Myanmar mandate stands as a critical mechanism to uphold human rights against military brutality. Being a country-specific mandate, its scope of human rights scrutiny is not restricted to any single Convention or thematic area. As such, the mandate can investigate an expansive range of human rights violations perpetrated by the Tatmadaw, even though Myanmar itself has not ratified the the Covenant on Civil and Political Rights and the Torture Conventions.

The Special Procedures can also promote international awareness, influence the discourse, and generate consensus on solutions within the international human rights framework. Against political violence and conflict, it could serve as a good entry point to initiate accountability and justice work.

This article will examine the challenges and barriers facing the mandate (currently held by Special Rapporteur Tom Andrews, 2020-present) in managing the ongoing crisis. It will also explore potential avenues the Special Rapporteur can exploit for stronger rights protection.

Main challenges

The mandate’s gravest challenges are the state-led nature of the violence, the Myanmar military’s self-isolation, and the looming humanitarian crisis.

State cooperation, in the form of country visits, technical consultation, communications and recommendations, and policy reform, is arguably the most important factor for the success of U.N. Special Procedures. However, in conflict-ridden and unstable environments, state support is often denied. The Human Rights Council’s repeated calls for all states to “cooperate with and assist the special procedures in the performance of the tasks” notwithstanding, there is no established treaty instrument that binds states to cooperate or respond.

The Special Rapporteur-Myanmar government relationship has long been a vexed one. The pre-coup track record of Myanmar’s suspension of mandate country visits demonstrates the country’s grudging acceptance of its cooperation responsibilities. In executing repression and violence campaigns against civilians from across ethnicities, the Tatmadaw has effectively withdrawn fully from interaction with the mandate.

Since the onset of the coup, scholars and commentators have observed the self-isolation strategy pursued by the military junta, which both prevents in-country investigation and suggests negative implications for human rights in Myanmar. Most crucially, this isolation undermines the Special Rapporteur’s direct communications with key stakeholders, including protesters, victim groups, civil society actors, and journalists. Attacks on journalists and activists in particular disrupt the timely monitoring and reporting on the latest developments of military brutality. The Covid-19 pandemic also lends itself to military abuse of the country-‘s shut-down from the outside world. Despite indefatigable calls, the prospects for the Special Rapporteur to have access into the country are slim, especially given the ongoing pandemic in Myanmar.

Equally alarming is the junta’s swift amendment of several laws removing basic protections for human rights and creating new offenses to oppress protest organization and mobilization; These ammendements further distort justice, law enforcement and governance.

Additionally, the coup has worsened ongoing humanitarian issues in conflict-prone ethnic areas and bred new displacement across the country. It has also hindered incoming and ongoing relief delivery, including the safe and dignified return of refugees back into Myanmar. Taken together, all these elements can stifle post-coup human rights work.

Possible ways forward

The Myanmar mandate can, in limited ways, achieve its function of limiting military brutality. The Special Rapporteur must leverage the unique advantages of the mandate to broker coordinated actions in accountability, advocacy, and sanctions from all relevant stakeholders.

International accountability efforts

As the holder of the Myanmar mandate, the U.N. has the sway to moblize targeted accountability from the international community. Since February 2021, Special Rapporteur Andrews has issued extensive reports disclosing military-led human rights violations and prompted special sessions at the UN in response. His reporting and recommendations present a valuable source of information and analysis for decision-making, which informed the Press Statement and Presidential Statement on Myanmar at the Security Council and prompted the 29^th Special Session at the Human Rights Council. The Special Rapporteur’s call for economic sanctions and arms embargo is also constructive for subsequent sanction plans drawn by the US and the EU.

International organizations must advance legal processes to hold the Tatmadaw to account, and the Special Procedure is well-positioned to bridge the various mechanisms needed to do so. In his March statement to the Human Rights Council, Andrews outlined the constituting elements for a referral of the Tatmadaw to the International Criminal Court for crimes against humanity. These criminal proceedings could not only pave the way for post-coup justice and remedies, but also rekindle accountability efforts underpinned by the International Court of Justice’s ruling on military-led genocide in 2017. The mandate must also employ other international hard and soft laws to protect vulnerable groups under repression, including the CEDAW and Women, Peace, and Security Resolutions and the UN Convention on the Rights of the Child.

ASEAN, the regional political entity that exerts certain influence over Myanmar, must also take cues from Andrew’s advocacy. With domestic rule of law in wreckage, ASEAN must exert its legal and diplomatic edges to constrain military brutality, starting with “denying recognition of the military leadership as a legitimate representative of the people of Myanmar”. Albeit lacking a court, the ASEAN Declaration on Human Rights has normative regulating power with its provision on the rights to life, liberty and security, free of torture, fair trial, privacy, free speech, and peaceful assembly. Violating the laid-out human rights therein forms a sound legal ground for regional-level interventions, sustained pressure and diplomatic momentum to protect peaceful resistance. 

Other regional powers, most notably China, Japan, and India, have either shied away from confronting the junta or blocked possible refugee inflows. These non-ASEAN powers are critical to counter military rule, but concrete actions are currently lacking due to concerns around geopolitical and economic interests. For the Special Rapporteur, engaging civil societies and academics in these countries for greater advocacy needs to be the start of creating consensus on people-centered interventions.

Bridging dialogues and information-sharing

A second pillar of the institutional advantages of the mandate lies in its ability to engage with civil society organizations, victim groups, and the media for information-collection and bridge dialogues among various actors. Even as the Special Rapporteur is barred from entering the country, he can still apply pressure by actively participating in dialogues with civil society organisations and activists in Myanmar and beyond.  

Although the government has silenced domestic media and arrested foreign journalists, the international media that stayed in Myanmar remains a crucial actor for brokering dialogues between local informants and the Special Rapporteur and international community. These journalists also provide information for the mandate by reporting on the latest developments and keeping the Tatmadaw’s illegal power grab on the international relations agenda. 

Besides spotlighting military atrocities, the concerted efforts of media and the mandate in monitoring political dynamics between major political actors and the Tatmadaw have led to “naming and shaming”. The coverage of secretive, undisturbed arms trade between Tatmadaw and Russia, Ukraine, and India is exemplary of the cooperative strength.

Lastly, the academia and think tanks following the situation in Myanmar need to link ongoing discussions with the mandate activities to maintain a persistent and stronger voice for justice and peace for the country. The Special Rapporteur’s participation in academic round-tables and policy dialogue can bring on-the-ground perspectives to policy-making.

The private sector: synergies with the UNGP

The private sector is a primary actor, too, to contain military brutality financially. The U.N. Guiding Principles on Business and Human Rights (UNGP) provides that enterprises have their responsibilities to uphold human rights in their operations, with specification on the duty of companies and home states to act in adherence to human rights standards in conflict-affected areas. This aligns with Andrews’ call for economic sanctions. The joint statement by the Working Group on Business and Human Rights and Special Rapporteur reported, however, that the military’s economic interests, including access to arms and technology, are mostly untouched. This status quo must change.

Although the UNGP is not legally-binding as other treaty bodies, many scholars argue that its soft-law nature can be utilized to regulate state and business conduct. Imposing sanctions accordingly on the junta-owned businesses, especially the highly profitable Myanmar Oil and Gas Enterprise, would undermine the economic sources for proliferation of military violence. In parallel, UNGP experts has urged business to suspend their operations in the country until democracy is restored to fulfill the responsibility to respect human rights and avoid being complicit in mass persecution. To fulfill their UNGP-defined duties, corporations and countries must heed Andrews’ call for wider economic sanctions and arms embargo.

Additionally, techno- and telecommunication companies can also provide protection based on UNGP provisions. Companies such as Telenor and Facebook can play a decisive role in protecting user privacy, especially for protesters, dissidents, and human rights defenders, by drawing a line with the military. For example, Telenor was urged by Norwegian scholars to erase all client information and text messages before its handover and exit of Myanmar to prevent aiding persecution. Enterprises ought to heed the recommendations of the mandate-holder to strengthen the human rights awareness and engagement of the private sector.

Conclusion

The UN Special Procedure on the Human Rights Situation in Myanmar possesses several advantages in upholding human rights in the political tsunami of the military coup, but its effectiveness can be significantly improved by collaboration with outside actors and the utilization of various mechanisms. Primarily, these include the existing accountability and legal frameworks, international and domestic media and civil society, and the private sector. The main directions of action of the Special Rapporteur should also include remedy-seeking preparedness alongside rights protection. Should these actions be taken, the Myanmar mandate and the international community will bring better chance of peace, justice, and freedom to the people of Myanmar.

Trained in development studies, human rights law, and peace research, Peixuan Xie is a Beijing-based development practitioner working for the United Nations. Her work largely focuses on the gender dynamics of conflict and human rights protection in various conflict settings. Views expressed are her own.