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Understanding The Different Thinkers and the Issue of Compliance in ASEAN

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Photo: Joshua Rawson-Harris/Unsplash

Authors: Harsh Mahaseth and Shubhi Goyal*

Over the years the issue of compliance has been seen through various lenses with its role and function in international law evolving. There has been a transformation in the characterization of compliance with international law which has restructured the maturities and complexities of it. International Law is seen as legitimate due to its clarity, its validation by formal processes, it’s conceptual coherence, and conformity to normative hierarchy of the International rule system. This article draws on the theory of Managerial approach espoused by Abram Chayes and Antonia Chayes and the Legitimacy theory given by Thomas Franck to understand why the ASEAN states have some of the lowest levels of compliance with international law and the possible policy changes to rectify the same.

There are several reasons for why States obey international law: it is in their best interests, they believe in the system, to improve reputation or credibility, for recognition as an international legal person, pressure from the international community, fear of repercussions or retaliation, or to maintain peace and security.

The approach adopted by Abram Chayes and Antonia Chayes, termed as the managerial approach, relies on a cooperative approach to compliance and states that while substantive legal norms and lawyers are important, the law is rarely determinative in international affairs. They see international law as a system to manage international affairs. This legal process will allocate the competence for decision-making between several national and international actors and also restrain and organize the behavior and its interactions with the political, economic, and cultural setting. States, under this theory, obey international law not because of punitive sanctions but because of three factors- (a) compliance reduces transaction costs and increases efficiency, since the need to recalculate the costs and benefits of a decision is eliminated; (b) they are persuaded to comply by the treaty regimes themselves, since they are consent based instruments and therefore intended to serve the need of the participating states; and (c) a general norm of compliance in treaty regimes, furthers compliance. They espouse coordination building efforts such as transparency and clarity in the terms of the treaties as a way to improve compliance, rather than punishment or sanctions. Dispute resolution under this model is only a forum for communication and for expectations to be cleared.

Thomas Franck’s work emphasizes on the transformation of international law post-World War II which has accompanied the transformation of sovereignty. His work is not limited to treaty-based law, like Chayes and Chayes, but also extends to the power of customary rules. He observed that the international system has an abundance of specialized law with very little to do with the law of international organizations or the constitutional law of the global system. He acknowledges that nations obey rules when the benefits of complying exceed the costs; however, he bases this on communitarian peer pressure rather than a multitude of cost-benefit calculations regarding particular rules. His theory, popularly known as the legitimacy theory provides four factors that determine whether a State will comply with international law- coherence, adherence, determinacy and symbolic validation. Franck in his work had emphasized on a lexical priority of legitimacy over justice which should be the prime goal of an international rule system. According to Franck a moral order is manifested in the belief of the right process rather than the substantive outcomes. However, Franck does not delve more into the various modes of institutional interaction that lead to interpretation of norms, nor does he delve into the mode by which international norms are internalized into domestic legal systems.

Franck and Chayes and Chayes understand international law more as a process rather than as a system of rules. Though through different methodologies, Franck and Chayes and Chayes reach the same intuitive answer on why nations obey. They recognize transnational actors to be more likely to comply with international law when it is accepted through some legitimate internal process. Franck says that if nations perceive a rule to be fair then they will obey it, while Chayes and Chayes say that nations will voluntarily comply with norms that regularly justify their actions to treaty partners in terms of treaty norms.

According to Chayes and Chayes there is an issue with compliance due to lack of clarity of rules and capacity. ASEAN has several treaties and agreements, all of which can be found on the ASEAN website, however, most of them are non-binding agreements which were entered into just for the satisfaction of the Member States. The countries making up the ASEAN is an area of extreme diversity. The region has representation from all three of the world’s largest religions- Christianity, Buddhism and Islam. There are countries like Singapore, with a per capita income of around USD 82,000 and frequently counted as among the richest countries in the world, and those like Cambodia, with a per-capita income of USD 3,300. Due to the ASEAN Way several affairs were conducted in a loose and informal way, unclear with their nomenclature with few legally-binding arrangements and weak institutions.

Franck links compliance with the legitimacy of the rules. This theory lines with the non-compliance of Singapore, Malaysia and Brunei with the International Covenant on Civil and Political Rights as they still have the use of corporal punishment. These countries do not believe in the legitimacy of the Covenant with respect to caning and death penalty and thus did not sign or ratify the same.

Harold Koh talks about norm internalization and how a transnational legal process is required. Compliance comes about when the particular International Law is internalized within the normative structure of the state. The three phases for the same are interaction, interpretation and internalization. The lack of internalization is one of the issues that leads to the low level of compliance among ASEAN states face, their reluctance to internalize international law because of the very less importance given to the written law in such states, as compared to those in the West.

ASEAN has an issue with compliance. In the past only about 30 percent of ASEAN’s agreements were implemented. There are several reasons for non-compliance – lack of capacity, not in line with national interest, (realist and self-interested), procedural issues, ambiguity, ASEAN Way – informal, flexible and non-legalistic, low levels of legalization and institutionalization, path dependence (habituated practice), lack of information, lack of capacity, lack of faith in system, ambiguity, unrealistic and insufficient dispute settlement mechanism, and weak rule of law at national and regional levels.

While the ASEAN Charter under Chapter VIII talks about Dispute Settlement Mechanisms, and there is a 2010 Protocol to the ASEAN Charter on Dispute Settlement Mechanisms, ASEAN is yet to fully establish a functional dispute settlement mechanism. Article 23 of the ASEAN Charter mentions Alternative Dispute Resolution solutions. There are instrument-specific mechanisms which are given under Article 24(1) of the ASEAN Charter. The Treaty of Amity and Cooperation (TAC) of 1976 and the 2004 Protocol on Enhanced Dispute Settlement Mechanism exist as well which are generally used for economic agreements. Article 25 of the ASEAN Charter has a ‘catch-all’ clause for all other disputes that do not fall within the above ambit. However, the TAC is weak, and the 2004 Protocol goes first to consultation and consensus. If it is modelled on the WTO then why is it only efficient to only have 60 days to settle the dispute? According to the theory of Chayes and Chayes this would not be efficient and it is seen that the ASEAN Member States prefer to use other forums such as the International Centre for Settlement of Investment Dispute or the World Trade Organization over ASEAN Charter-sanctioned Dispute Settlement Mechanisms. All ASEAN Dispute Settlement Mechanisms are ad hoc and none are activated.

According to the Report of the Eminent Persons Group on the ASEAN Charter (EPG Report), ASEAN’s problem is not one of lack of vision, ideas, and action plans. The real problem is one of ensuring compliance and effective implementation of decisions. The solution of which is the establishment of dispute settlement mechanisms, inclusion of compliance monitoring, advisory, consultation as well as enforcement mechanisms, and entrusting the Secretary-General with the role of monitoring and reporting cases of non-compliance. The ASEAN Secretariat should collect, analyze the data and do performance reviews. This would ensure greater transparency and information sharing. Further, instead of using only consensus based and informal mechanisms to deal with conflicts, there is a need for collective effort to build a more rules-based community to accelerate regional integration and future response to events.

*Shubhi Goyal is a graduate of NALSAR University of Law, Hyderabad and is currently placed as an In-House Counsel with a private sector bank in India.

Harsh Mahaseth is an Assistant Lecturer at Jindal Global Law School, and a Research Analyst at the Center for Southeast Asian Studies, Jindal School of International Affairs, O.P. Jindal Global University. He is also the Co-Founder of UPeksha Eduservices and the Director of the UPeksha Mentorship Programme which focuses on enhancing law students' legal research, writing, editing, public speaking skills, and professional development.

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UNHRC Resolution on Myanmar: Another Global Action against the Military Regime

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The United Nations has taken another landmark decision against the continuing atrocities of the Military regime in Myanmar. The global action through the UN Human Rights Council (UNHRC) resolution on 12 July 2021 gave a powerful message to the regime for its gross violations of human rights specifically against the stateless Rohingyas. Bangladesh has played a crucial role behind the approval of the resolution. The UN Human Rights Council adopted a resolution on the “Human Rights Situation of Rohingya Muslims and other Minorities in Myanmar” in its 47th session condemning human rights violations by Myanmar’s military against the Rohingya and other minorities, and called for a process of reconciliation. The resolution was approved without a vote in the Geneva-based council. China, one of the 47 council members, told it could not join the consensus but nonetheless did not insist on bringing the text to a vote.

The text of the resolution calls for a “constructive and peaceful dialogue and reconciliation, in accordance with the will and interests of the people of Myanmar, including Rohingya Muslims and other ethnic minorities.” It also voices “unequivocal support for the people of Myanmar and their democratic aspirations and for the democratic transition in Myanmar.” The resolution calls for the immediate cessation of fighting and hostilities, of the targeting of civilians and of all violations of humanitarian and rights laws. It voices “grave concern” at continuing reports of serious human rights violations and abuses, including of arbitrary arrests, deaths in detention, torture, forced labour and “the deliberate killing and maiming of children.”

It has also emphasized the need to bring those accused and responsible for all forms of torture, crimes against humanity and war crimes against Rohingyas, including sexual offenses, to justice under appropriate national, regional and international judicial mechanisms. In this spirit, the resolution acknowledges the ongoing criminal proceedings in the International Criminal Court and the International Court of Justice. The resolution also reiterates the authority of the UN Security Council to determine what to do in such a situation. It requested the UN High Commissioner for Human Rights to submit a report to the Human Rights Council and the UN General Assembly on the progress made in implementing the recommendations of the Independent International Fact-Finding Mission on Myanmar. It also called for a panel discussion in the Human Rights Council on “the root causes of human rights violations and abuses against Rohingya Muslims and other minorities in Myanmar.”

The resolution appears to be comprehensive in its scope and mandate. It is the first of its kind adopted unanimously since the horrific attacks on the Rohingyas in August 2017. The Human Rights Council has been proactive in protesting against the Myanmar regime for its perpetration of ethnic cleansing and genocide. This UN body has, for the first time, termed the Myanmar regime’s brutality and atrocity against the Rohingyas as ‘the textbook case of ethnic cleansing’. The resolution is significant for several reasons. First, the resolution has been adopted unanimously although China, India and Russia are the members of the UNHRC. China as the staunch ally of the Myanmar regime did not hinder the passing of the resolution based on the rare consensus in the UN forum. Second, the resolution remains a unique case of strong message to the military regime of Myanmar. Unlike the UN Security Council, the Third Committee and the General Assembly, the UNHRC has been able to bring together all 47 member countries to create a consensus on the gross violations of human rights against the Rohingyas and other minorities in Myanmar.

It may be mentioned that the Human Rights Council is an inter-governmental body within the United Nations system, made up of 47 States, which are responsible for strengthening the promotion and protection of human rights around the globe.  The Council was created by the United Nations General Assembly on 15 March 2006 with the main purpose of addressing situations of human rights violations and making recommendations on them. The composition of the Human Rights Council shows participation of member countries from different regions in the world. Members are elected from Africa, Asia Pacific, West Europe, East Europe, Latin America, North America and other regions. Third, the resolution has strongly condemned and warned the military regime for its brutality, atrocity and illegal grabbing of power. No international body has so far applied such a powerful statement against the military regime in Myanmar. Fourth, it gives a hope to the Rohingyas and other ethnic minorities that the UN puts the issue on high level of agenda. It is also encouraging for the anti-Junta political activists that the global community keeps pressure on the Myanmar regime. Finally, the resolution has echoed Thomas Andrews, the UN’s special rapporteur on the rights situation in Myanmar, who told the Human Rights Council earlier that the military had carried out crimes against humanity since taking control, and slammed the international community for failing to “end this nightmare.” He decried the “widespread, systematic attacks against the people” since the coup five months ago. Referring to the view of the people of Myanmar, he asserted that the junta is an illegitimate regime and, indeed, a terrorist scourge set loose upon them.

Another remarkable factor is that the adoption of this resolution reflects a major success of Bangladesh’s Rohingya diplomacy. Bangladesh has sheltered more than 1.1 million Rohingyas in its own soil. The country has been diligently working for a permanent solution to the Rohingya crisis, beginning with their safe, dignified and sustainable repatriation in Myanmar. The resolution has rightly praised Bangladesh for providing shelter to the displaced Rohingyas while it called on the international community to continue providing humanitarian assistance until they return to Myanmar. It is emphasized that since the massive influx of Rohingyas from Myanmar into Bangladesh in August 2017, this is the first time that any resolution on the Rohingya was adopted in the UN without a vote, due to the intense diplomatic efforts made by the Bangladesh. The ministry of foreign affairs observes that the adoption of the resolution by consensus is a big milestone for Bangladesh. During the adoption, Bangladesh Ambassador and Permanent Representative to the United Nations Office at Geneva argued that the issue of addressing the Rohingya crisis and the protection of the human rights of Rohingyas must remain high on the UN agenda. 

Bangladesh strongly pointed out that the current political turmoil in Myanmar should not detract the international community from paying due attention to this crisis and seeking a durable solution. Bangladesh urged the international community to play a visible and effective role in ensuring the return of the forcibly displaced Rohingyas with full security and dignity. Bangladesh continued pressure on different UN bodies and international community to provide a roadmap and clear direction to mitigate the sufferings of Rohingyas, particularly their repatriation in their home country. In the wake of adopting the resolution, the Bangladesh foreign minister AK Abdul Momen urged UN Human Rights Council (UNHRC) and international community to constructively engage with Myanmar for early commencement of Rohingya repatriation to their homeland in Rakhine. He made it clear that the Rohingyas are Myanmar nationals and they must return to Myanmar.

It is critical to reiterate that Tom Andrew, the UN Special Rapporteur on the situation of human rights in Myanmar, fiercely attacked the states who are supporting the Myanmar regime and called for the urgent formation of an “Emergency Coalition for the People of Myanmar” to stop what he described as the military junta’s “reign of terror” in the country. He stressed that it was time to the end “the failure of those outside of Myanmar to take measures that could help end this nightmare”. He raises a fundamental question: “Future generations may look back upon this moment and ask: ‘Did the people and nations of the world do all that they reasonably could to help the people of Myanmar in their hour of great peril and need?’ In his view the answer is negative. Besides, the UN Human Rights Chief Michelle Bachelet told the council that the situation in Myanmar had “evolved from a political crisis to a multi-dimensional human rights catastrophe”.

In conclusion, both Bangladesh and the UNHRC have again played a vital role in advancing the cause of the Rohingyas in times of intense geopolitical rivalry and COVID-19 pandemic by adopting the resolution with biting attacks on the Myanmar regime for its atrocities. It may be recalled that the similar resolution was adopted by the UNHRC on 3 July 2015 in the backdrop of the torture and the Rohingya influx to Bangladesh. In that resolution (A/HRC/29/L.30) on the human rights situation of Rohingya Muslims and other minorities in Myanmar, the Council condemned the systematic gross violations of human rights and abuses committed against all, including Rohingya Muslims in Rakhine State. In six years, the UNHRC has passed another historic resolution against the Myanmar regime that creates an opportunity for the international community to continue diplomatic pressure on the Military regime and its allies.  

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Does Indonesian have to Pay Extra Taxes within Rampancy of Covid?

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Various countries in the world are slowly starting to remove the outdoor mask rule and  give  leeway  for  Covid-19  social  restrictions,  but  it  doesn’t  happen  in  Indonesia. Indonesia is running under peculiar circumstances until July 2021. The worst scenario that has always been feared finally happened along with a surge in Covid-19 patients as many as 40,000 people per day. This fact became even more terrible when the Indonesian Government presents Draft Law Number 6 of 1983 concerning General Provisions and Tax Procedures. The government plans to impose a value-added tax (VAT) on groceries as basic necessities, education, and health services. So, how does the Government create a scenario to call this a normal policy?

In this bill, the government is known to remove several types of services that are currently included in the non-taxable objects group. The services that are removed and will be subject to VAT include health services, education, and groceries as necessities. Groceries are classified as basic necessities that are needed by many people which constructed as non- taxable object group as regulated on Article 4A paragraph (2) of Law Number 42 of 2009 concerning the Third Amendment to Law Number 8 of 1983 concerning Value Added Tax of Goods and Services and Sales Tax on Luxury Goods. As well as groceries, medical health services and educational services are also classified as non-taxable objects based on Article 4A paragraph (3) of the same Law.

The Government’s plan to add tax objects has not been submitted yet to the House of Representatives, but whatever the taxation policy takes, it must still be guided by the principles of tax collection stated by Adam Smith, which are the principles of equality, certainty, the convenience of payment, and the principle of efficiency. The addition of tax objects is out of the line with the principle of the convenience of payment, which means that the tax must be collected at the right time for the taxpayer, for example when the taxpayer has just received his income. However, if we look at the current situation, the government is implementing a policy of Restricting Community Activities which is not the right time for taxpayers to receive information on additional tax objects. People tend to need financial assistance from the Government rather than pay extra tax.

The issue of maternity tax arises when the government removes health services from the   non-taxable   objects.   Based   on   the   Minister   of   Finance   Regulation   Number 82/PMK.03/2012, health services include general practitioners, specialists, and dentists, acupuncturists, nutritionists, dentists, physiotherapists, and veterinarians. Furthermore, midwifery services and  traditional birth services, paramedic and nurse services, hospital services, maternity homes, health clinics, health laboratories, to alternative medicine services are constructed as part of health services.

Until now, it is not explained in detail which health services will be taxed. However, if referring to that Minister of Finance Regulation, then midwifery services or childbirth costs will also be subject to a value-added tax (VAT). Here is where the dilemma comes in, childbirth is a basic right inherent in every human being which is stipulated in Article 16 paragraph (1) of the Universal Declaration of Human Rights and revealed through Article

28B paragraph (1) of the 1945 Constitution of the Republic of Indonesia which prescribe “Everyone has the right to build a family and continue their generation through a legal marriage”. As a constitutional right, the state should protect, respect, and fulfill these rights by not collecting taxes from a basic right.

In the same boat to groceries, this plan got criticism from society because it is not clear yet which types of groceries will be taxed. Based on the Minister of Finance Regulation Number 116/PMK.010/2017, the types of necessities that are VAT-free include rice and grain, corn, sago, soybeans, consumption salt, meat, eggs, milk, fruits, vegetables, sweet potatoes, spices, and sugar consumption. The collection of groceries taxes will be more effective if the groceries are classified as premium groceries and groceries that do not recognize social class (non-premium groceries). Examples of premium groceries constructed as wagyu beef, kobe beef, shirataki rice, and basmati rice which have relatively wide price ranges from local goods.

Education is also considered to be the object of VAT. This purpose is immensely counterproductive to the philosophy of education as a basic right as stated in Article 31 of the 1945 Constitution of the Republic of Indonesia. Tax collection from education opens up opportunities for commercialization in the education field. Commercialization is the process of changing and/or exploiting something for a profit. In line with the statement expressed by Milton Friedman and Frederik Van Hayek, that commercialization of education is a state of education  that  adheres  to  industrial  society  and  market  society.  Education  should  be inclusive for the whole community to increase the education participation rate.

One thing that must be understood is that tax collection must be in line with the capacity of taxpayer. There are two approaches to measuring the capacity of each person, which are (1) objective elements, by looking at the amount of income or wealth owned by a person, (2) subjective elements, by paying attention to the number of material needs that must be fulfilled by each person. Thus, the collection of maternity taxes, groceries, and education taxes must go through a comprehensive review to avert conflict with these elements. Is the government able to clearly classify which health services are taxed, as well as groceries and education? Take a cup of your coffee, and we will see…

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Stabilization And Digital Dialogues For Myanmar: Stepping Back From The Brink Of Civil War

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Abstract: Five months into the military coup of 1 February, Myanmar is on an increasingly fragile trajectory with clear signs of conflict escalation. World attention tapered off after the first few weeks and shifted to other hot spots, including in the Middle East. Regional ASEAN diplomacy and western sanctions pressure have failed to provide a breakthrough while influential neighboring countries are locked in competition and preoccupied with the COVID-19 Pandemic. The weakened multilateral system seems unable to respond decisively to growing mass protests and violent repression by the military. Basic levels of protection for civilians and essential services have been eroded amid a resurging COVID-19 Pandemic.

National cohesion in Myanmar has come under severe pressure. Although the country has weathered low-intensity conflicts over the years and state disintegration is a remote scenario, regional stability hinges on peace and prosperity in Myanmar which is located between Chinese and Indian spheres of influence. Democratic transition has remained incomplete in Myanmar since 2011. Inclusive civic dialogue can help reduce tensions through leveraging communications technology for digital grass-roots engagement, especially with Myanmar’s youth. This might restore a modicum of calm and provide a conducive environment for peace talks. International friends of Myanmar and ASEAN states are well placed to provide critical support, in line with ASEAN commitments. Civic digital dialogue could also boost human capital for addressing longer-term challenges, including the impact of climate change and the Pandemic.  

Evolving Conflict Dynamics- Violence Expands from the Center to the Periphery

While renowned National League for Democracy (NLD) party leader Aung San Suu Kyi remained under house arrest, charges of corruption were formalized in June concerning a charitable foundation, in addition to  alleged breaches of COVID-19 protocol and communications regulations. After some delay, a court hearing was held on 26 May. Meanwhile, the number of detained civilians grew over tenfold from the first weeks of mass protests to 6,000. On 30 June, the government released 2,300 detainees nationwide, including media and NGO workers who had not committed violent acts. The junta prepared indictments against protesters and 64 persons received death sentences as reported in media in early June.

Some 211,000 persons were internally displaced, according to recent UNHCR figures and the death toll neared 900 persons in late June, according to NGO observer groups. Since the beginning of 2021, the civilian casualty rate in Myanmar is among the highest worldwide, second only to conflicts in Ethiopia and Nigeria. Businesses were severely affected, and several factories were closed; several large international firms divested from Myanmar or are pausing investments. After a general strike in February, anti-junta protests continued in northern Kachin State, southern Dawei, Sagaing region and in the commercial capital Yangon.

A Committee representing the disbanded parliament (CRPH) was formed and a “National Unity Government” (NUG) established in April. The shadow government issued a proclamation for the release of all political prisoners, return of the armed forces to the barracks, ending the violence and accountability for those responsible for atrocities after the coup. The NUG also pledged remedial action for Myanmar’s Rohingya Muslim minority and their rights in Rakhine state of Myanmar where over 100,000 persons had fled to safety in Bangladesh in the 2017 military crackdown against suspected terrorists.

By the end of June, military repression continued unabated. Weapons of war were used against demonstrators and neighborhood vigilante groups loyal to the authorities targeted protesters. Internet services were frequently blocked since April as the military  rolled out a restrictive new cyber security law. The Facebook social media platform which was used by half of the country’s population as ubiquitous news source and messaging service was shut down. independent media outlets were shut down or fined, and over 90 journalists imprisoned. Relatively few defections from the armed forces have occurred, mostly from lower ranking navy and air force members as well as units constituted with former rebels in 2015. Some reports suggest that soldiers melted away to join the Civil Disobedience Movement in an estimated 800 total of cases, but it remains unclear how many of them ended up taking arms for the resistance.

In another more serious development, some of the ethnic minority militias in Myanmar’s border areas with long-running insurgencies against the central government have started to mobilize. There  were reports that  urban dissenters were joining their ranks and new ‘civilian armies’ were constituted as offshoots of the Civil Defense Movement while other protesters just sought temporary shelter among militias. Several of these groups -including the Kachin in the north and the Karen in the east- publicly denounced the coup and stated they would defend protesters in the territory they control. Other ethnic militias appeared to be sitting on the fence about fighting in urban areas. Experts believe that the territorial ethnic armies have widely diverging military capabilities and are unlikely to mount a serious challenge to the armed forces. However, ethnic militia are a possible factor in pan-ethnic solidarity supporting talks and might become ‘king makers’ in the event of a rift inside the Myanmar military forces.

On 22 June, armed demonstrators of the ‘Mandalay PDF’ group engaged armed forces in a sustained urban firefight at Myanmar’s second largest city. In areas bordering Thailand, Karen state saw intensified armed clashes in May when over 100,000 persons were displaced and some sought temporary safety in Thailand. Confrontations were also reported from Chin state bordering India and from northern Kachin and Shan states. Well-informed observers warned about a trend towards generalized revolt. unless regional or international initiatives can manage to stem the escalation. The country may have come close to becoming ungovernable and some analysts warn of impending state collapse and prolonged civil war as in the case of Syria. 

International Response Patterns- Sanctions and Regional Diplomacy

The UN Security Council discussed the situation in Myanmar three times since the coup and issued                  a presidential statement on 10 March. The Council repeatedly called for restraint and restoring democratic transition in Myanmar but its closed meeting on 18 June 2021 fell short of deciding on an arms embargo. The Council demanded that the constitutional order should be respected but did not condemn the military coup outright, due to the position of China and Russia that defended national sovereignty. China publicly rejected sanctions as “inappropriate intervention” on 3 July during the                 9th World Peace Forum held in Beijing. Chinese Foreign Minister Wang Yi stated that the primary goal was to help Myanmar find a political solution as soon as possible through dialogue and consultation.

The UN Generally Assembly (GA) passed a first non-binding resolution on Myanmar on 18 June, which condemned the coup and called for a stop in the flow of arms to the country and the immediate release of Aung San Suu Kyi, President Win Myint and other senior civilian officials. The UN Secretary-General reiterated his call for the release of Aung San Suu Kyi on 1 July following mass releases of detainees in Myanmar. He also expressed deep concern over continued intimidation and violence as well as arbitrary arrests. In early July, the UN High Commissioner for Human Rights warned of political crisis in Myanmar evolving into a “multi-dimensional human rights catastrophe” with potential for massive insecurity and fallout in the region. The SG’s Special Envoy on Myanmar, Swiss diplomat Christine Schraner Burgener, visited neighboring states of Myanmar but was not permitted to enter the country.

Outside the UN, international responses featured moral appeals, public condemnation and the use of targeted sanctions. The G7 Foreign and Development Ministers Statement of 5 May roundly condemned the coup and called for immediate cessation of violence; the G7 pledged support to ASEAN efforts in conflict resolution. In mid-May, US, UK and Canada imposed a new round of coordinated sanctions which were expanded from a dozen military figures to state enterprises known as significant income earners (gems and timber industries). In early July, the US led additional sanctions measures against 22 members of the regime and close relatives, also targeting three Chinese companies for providing support to the Myanmar regime through business dealings with the sanctioned Myanmar Economic Holdings Limited.

EU sanctions were expanded to include public timber companies from Myanmar, aligning with earlier UK measures. The US and UK placed sanctions on the State Administration Council (SAC), the junta’s governing body while the EU placed sanctions on the Myanmar War Veterans Organization, due to its close connection with the Armed Forces. Japan warned in mid-May that assistance to Myanmar could be frozen beyond a halt of new aid programs decided in February, seeking to use its considerable leverage as a top donor for Myanmar. Canada said it imposed additional sanctions on individuals and entities tied to the Myanmar armed forces, indicating it was prepared to take further steps. New Zealand imposed a travel ban on the Myanmar junta and stopped all aid that could benefit them; effectively suspending all military and high-level political contacts with the country.

Commander-in-Chief of Myanmar’s armed forces Senior General Min Aung Hlaing remained the                        de-facto leader of the country. Apart from minor changes in the SAC, the junta government stayed in place. Experts assess that the army leader has no intention to curb Myanmar’s economic progress. Unlike during previous military rule in Myanmar in the 1980s, a semi-civilian composition of the new cabinet in the Supreme Administrative Council (SAC) shows that the military is prepared to ride out international pressure and pursue national development. However, analysts based in the region see          a risk of Myanmar backsliding several decades and reversing gains from the democratic transition.

ASEAN Regional Leverage vs. Geopolitical Interests

Early regional reactions to the coup in  Myanmar were muted, with the notable exception of Singapore, Malaysia and Indonesia. Following the ASEAN consensus principle, current ASEAN Chair Brunei appealed for respect of ASEAN’s principles of rule of law, democracy and human rights. The regional block tried to engage the junta during the 24 April ASEAN Leaders Meeting which the Burmese coup leader, Senior Gen. Min Aung Hlaing attended. Yet he subsequently backtracked stating that stability was an essential precondition for ASEAN peace talks and implementing the ASEAN Five-Point Consensus from the summit. ASEAN  followed up with a high-level mission to Yangon in early June to meet the junta leader again and seek his views on a list of nominees for an ASEAN special envoy for Myanmar agreed among ASEAN member states.   

The junta’s  foreign minister participated  in a special ASEAN-China Foreign Minister’s meeting in Chongqing in early June, amid speculations that China was warming up to the military leadership in Myanmar. Chinese officials had issued veiled criticism in the early phase of the coup while parallel Chinese linkages were forged with the civilian NUG. A tuning point occurred in mid-March when protesters injured Chinese workers at a Yangon factory complex which was damaged and looted. In a scenario of widespread instability and key infrastructure under threat, China might resort to pressure  NUG and the junta into a compromise, according to regional experts; some analysts point to a recent Chinese troop concentration at the important border town of Jiegao.

China’s southern Yunnan province borders Myanmar where Chin state became one of the recent flashpoints in violence. The area is important for China’s transcontinental Belt and Road Initiative (BRI), through a China-Myanmar Economic Corridor (CMEC). The plan features a high-speed train link from China to the Indian Ocean, alongside gas pipeline projects to Myanmar coastal areas, as well as the  Muse-Mandalay highway.  China has also pursued a mega-hydro project north of Myitkyina which was stalled in 2011 over environmental concerns and developed an industrial park for the town. In addition, Chinese investors have snapped estate and land in the Yangon area, despite restrictive rules.

China’s President Xi Yiping undertook a milestone visit to Myanmar in January 2020, where he signed 33 agreements. Myanmar’s strategic value in these schemes was recently underscored by the visit of China’s Foreign Minister Wang Yi in mid-January 2021 as senior-most foreign official to arrive since November’s election. In military cooperation, China as a traditional ally has taken a relatively low-key approach with Myanmar. Russia appeared more eager to capitalize on arms cooperation with senior visits demonstrating that Moscow is not beholden to western sanctions policies.

Like the many economic and investment ties between Thailand and Myanmar, other regional partners have most likely  adopted a “wait and see” approach before gradually re-engaging with the junta-led government. However, Thailand voiced concerns of spillover from the violence in Myanmar, after refugees had crossed the long border; Thailand considers itself as a ‘front line state’ and has recalled its “quiet and discreet diplomacy” efforts underway.

India as Myanmar’s northwestern neighbor already hosts many refugees from the Christian Chin minority.  15,000 refugees have arrived in northeastern Indian states of Mizoram and Manipur since the coup, according to UNHCR figures. These arrivals remain displaced and are hosted by local communities. Larger waves of refugees from Myanmar would affect the delicate local political and security environment. Myanmar’s military has at times coordinated with Indian security forces to control extremists and “geopolitical intricacy” overrides India’s stand on the current crisis.

Similarly, China does not want to see spillover from Myanmar tensions upset its southern industrialization schemes. It was India that delivered the first 1.5mln doses of COVID-19 vaccines to Myanmar in mid-January when China’s global vaccine diplomacy took shape. Yet both powerful neighbors of Myanmar are unlikely to come to an understanding how to prevent a worst-case scenario, given their geopolitical antagonisms in the wake of recent US and Quad countries cooperation.

Configuring Innovative Dialogue for 21st Century- Digital Engagement with Myanmar Conflict Parties

In view of the high stakes from ongoing violence and the risk of serious escalation, the time may have come for an alternative approach in Myanmar peace support. Assisted by new technology, digital dialogue at the grass-roots level could provide an opportunity for reflection and connect segments of the population and conflict parties. Such innovative dialogue can also tap into Myanmar’s human capital, especially youth who tend to be tech-savvy and eager to express their views. ASEAN’s supportive and caring posture expressed in its 24 April Leader’s Meeting Communique lays out  ASAEAN regional solidarity in a people-centered approach rather than prescriptive intervention. ASEAN is also well placed for assisting with required technology from its industrialized members and influential countries in Asia.

Newly boosted by the global switch to digital in the COVID-19 Pandemic, state-of -the-art communication technology and tools exist to connect hundreds of participants in online dialogue sessions. UN peace missions in Yemen, Syria and Libya have utilized such digital outreach to enrich ongoing negotiations and tapped into AI solutions for evaluating feedback. The work of senior negotiators might become more hybrid with online inputs and analysis, although scholars note                                a “missing sense of peace” in virtual interactions. On the other hand, benefits exist from greater inclusion, shorter iterative meetings, and equality in interaction. Significant peace constituencies including women, youth and minorities can be included online from the very start than in most traditional mediations.  

Myanmar has fertile ground for digital grass-roots dialogue. Younger citizens, including in conflict areas have shown great skill in networked cooperation, providing practical livelihoods advice and psychosocial support for years. In view of restrictions from the junta, protesters have resorted to virtual private network (VPN) solutions to ensure connectivity. Some younger officials and members of the security apparatus may also participate in a “sovereignty enhancing” dialogue aimed at better governance and reforms. The technological challenges including interference from authorities are not insurmountable.

Accompaniment could be provided via inter-regional cooperation between ASEAN and the EU, which remains under-utilized, despite strong shared business interests. The multi-sector dialogue  template (“Enhanced Regional EU-ASEAN Dialogue Instrument” -E-READI) has ample room for configuring the required scaling effects in technical assistance in sectoral policy dialogues concerning Myanmar’s specific situation. Notably, Facebook and Instagram banned Myanmar’s military and military-controlled state media in late February, citing “exceptionally severe human rights abuses and the clear risk of future military-initiated violence in Myanmar”.    

Pivot to a New Generation Compact in Myanmar- Tackling Global Challenges

Innovative digital dialogue as an early confidence building process can provide a platform for addressing center-periphery relations in Myanmar which lie at the core of many minority grievances. Myanmar could start developing its “new generational compact” including on regional autonomy and decentralization. The country never managed to forge a “Second Panglong Agreement” after independence and the death of General Aung San in 1948.    

Social cohesion and enabling social capital for addressing global challenges of climate change and Pandemic resilience are urgent for Myanmar. The devastating Cyclone Nargis in 2008 showed the country’s vulnerability to extreme weather events in low-lying coastal areas. Myanmar’s Pandemic response also requires joint mobilization, due to  rising infection levels nearing peaks of last October. Medical staff were instrumental in launching the Civil Disobedience Movement; work stoppages and insecurity have affected the health sector where recent new COVID-19 restrictions are hampering humanitarian access and response. The impact has been dramatic in interrupting remote outreach on public health prevention and counseling of victims of gender-based violence.

In the absence of consensus among superpowers to find a joint formula for lending ASEAN political efforts additional clout, or tactical convergence between the US and China for stabilizing Myanmar jointly as a middle ground, innovative civic dialogue should be seriously considered. More punitive approaches may end up driving the beleaguered country deeper into the arms of China and exacerbate violent conflict. Grass-roots engagement with critical peace constituencies in Myanmar could prevent transforming the current crisis into a proxy fight between global players and second tier regional powers, including India which has asserted itself in border tensions with China and as part of the US-led Quad group of states to hedge against China’s growing influence in ASEAN and APEC Regions.  

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