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Burmese Perspectives

Letter from Guildford, Surrey

5 September 2010

"We are such stuff as dreams are made on"Prospero in William Shakespeare's "The Tempest" Act 4 Scene 1

The UN and Commissions of EnquirySo easy to recommend, so difficult to establish

In a wide-ranging interview with the 'New York Times' correspondent James Traub

on 3 September 2006, shortly before "The Situation in Myanmar" was inscribed on

the agenda of the UN Security Council against the wishes of China 1, Chinese

Ambassador to the UN Wang Guangya made it clear that he had "firm instructions" to

veto a Western inspired draft Resolution then circulating. It should have come as no

surprise that when the Resolution was formally tabled on 12 January 2007 both

China and Russia, which had likewise given advance warning of its intention, cast a

rare double veto.

There is a risk of a similar fiasco over the suggestion made by UN Special

Rapporteur on Human Rights in Myanmar Toms Ojea Quintana in his report to the

Human Rights Council on 10 March 2010 2 that "UN institutions may consider the

possibility to establish a commission of inquiry with a specific fact-finding mandate to

address the question of international crimes." It was clear enough that what Quintana

was proposing was that a UN body might wish to consider such a possibility, though

translators had some difficulty with his slightly opaque English, which was the original

language of the report. The French version is perhaps closer to Quintana's thought

when it suggested that UN institutions "voudront peut-tre envisager la possibilit" 3

switching into the future tense and throwing in a "peut-tre" for good measure. The

Chinese version could rely on the ubiquitous "k y" 4 which implies both "can" and

"may", while the Russian plumped for "mogut" 5 which is more of a "can" than a

"may". Almost without exception, human rights and activist organisations have seized

1The Permanent Members have no veto on the inscription of an agenda item, only on subsequent

action.2http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A.HRC.13.48_en.pdf

3"would perhaps envisage/consider/contemplate the possibility"

4 in Chinese

5m in Russian

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on Quintana's "suggestion" 6 to UN institutions as being a recommendation by

Quintana himself to the UN to set up a Commission of Inquiry. "The establishment of

such a commission was recommended by the UN Special Rapporteur on the

situation of human rights in Burma in March" 7 declared Amnesty International.

Governments have reacted with caution. Australia, UK, US, the Czech Republic,

Slovakia and now Canada have indicated their support in principle for Quintana's

proposal to UN institutions, but have been careful to avoid any reference to "war

crimes" or "crimes against humanity" which might appear to prejudge the situation

and could have implications in the context of the International Criminal Court, of

which the US is not a member. In response to a question the US State Department

Spokesman Philip Crowley commented on 24 August 2010 at his daily press briefing

that: "We believe that a properly structured international commission of inquiry that

would examine allegations of serious violations of international law in Burma would

be warranted and appropriate. And we are examining how to best proceed on this

initiative."

The British Foreign Secretary William Hague has only gone so far publicly as to say

that the UK "has not ruled out a Commission of Inquiry" 8 which suggests that the UK,

like the US and some other countries, see both political and more importantly

doctrinal difficulties in utilising those UN institutions most likely to be relevant. Given

their known antipathy for the Security Council to be used as a body to examine

human rights issues, both China and Russia could already have made it clear that

they would veto any Resolution on the subject put to the Security Council. The

Human Rights Council would seem to be the more appropriate institution, and it was

as their Special Rapporteur that Quintana made his recommendation in a report to

the Council. But it was not taken up by the Council when they considered Quintana's

report and approved a Resolution without a vote on 26 March 2010. 9 There may well

be some inhibition about going back to the Human Rights Council on this issue,

which could be due to reservations both political and doctrinal by several countries.

The General Assembly and the UN Secretary General are possible institutions which

might be tasked to establish a Commission. The General Assembly itself might

6The characterisation used by Angela Robinson, Australian representative at the meeting of the Human

Rights Council on 26 March 2010, to describe Quintana's proposal.7

Statement by Amnesty International 3 September 2010.8

Letter to the Burma Campaign UK at http://www.networkmyanmar.org/images/stories/PDF4/whlr.pdf9http://www.networkmyanmar.org/images/stories/PDF4/hrcapr.pdf

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reasonably initiate a study 10 and even make recommendations, but as the General

Assembly is in essence a conference and not an action body, even a fact-finding

Inquiry could well be a step too far. For if the General Assembly found it could

establish such a Commission on Myanmar despite the objections of some major

powers, some might well ask which country might be next. Only a two-thirds majority

of UN Members present and voting is needed on an "important" question and there

are no vetoes. A precedent would have been created, possibly unwelcome to many.

The General Assembly on the other hand might make an appropriate

recommendation to the UN Secretary General, but if that were seen as an instruction,

that too could be seen as doctrinally improper. There is finally the possibility that the

Secretary General in his own right could initiate such a fact-finding inquiry, but there

have already been indications that the Secretary General would not be willing to take

any initiative without appropriate guidance.

It will be intriguing to see how that is played out during the coming weeks. Quintana

and the Secretary General are expected to submit reports on the human rights

situation in Myanmar soon to the General Assembly. The Third Committee will meet

in several weeks' time to consider a draft Resolution to be put to the General

Assembly before Christmas. Some have suggested that perhaps the Acheson Plan,

enshrined in the "Uniting for Peace" General Assembly Resolution 377 of 1950 11

might be brought into play as a means of breaking an apparent impasse in the

Security Council over Myanmar, where the item "The Situation in Myanmar" remains

on the agenda and is activated from time to time. However, the impasse in the

Security Council stems mainly from disagreement about whether the situation in

Myanmar is or is not a threat to the peace and the "Uniting for Peace" Resolution

could only be relevant in cases where the Security Council were facing a "threat to

the peace" situation generally acknowledged by the Security Council. 12

As William Hague also said in his letter to the Burma Campaign UK: "Any action we

take would need the engagement of the international community." Without broad

Asian support, notably from China, India, Russia and ASEAN countries, any suchinitiative if thought to be contrived would be of little real value and would simply be

seen as the West ganging up on Myanmar yet again. For the US to take the lead

10Article 13 of the UN Charter - "The General Assembly shall initiate studies and make

recommendations for........assisting in the realization of human rights...."11

http://en.wikipedia.org/wiki/United_Nations_General_Assembly_Resolution_37712

Article 12 of the UN Charter inhibits the General Assembly from making recommendations while theSecurity Council is seized of any problem.

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could be the kiss of death, as the former Norwegian Prime Minister Kjell Mange

Bondevik recognised in a statement from Oslo Center on 27 August. 13 Bondevik

however, who never lets an opportunity for publicity on Myanmar pass, also said that:

"The election in November, which has already been condemned by large parts of the

international society, will if possible have even less credibility in light of such an

investigation." The link to the elections will have been noted in Myanmar, and will

only have served to convince Nay Pyi Taw that the campaign for a Commission of

Inquiry is politically motivated and directly aimed at undermining those elections.

I do not claim to have expert knowledge on the workings of UN institutions, but as a

former foreign policy practitioner I start from a basis of supporting what looks

possible and practical as a means to mitigate the serious human rights situation

which has existed in Myanmar for so long. I have no problem with a Commission of

Inquiry provided it has substantive international support. Western Governments

though are unlikely to bow to counterproductive activist pressures seeking to force an

Inquiry onto a UN institution in a way which might detrimentally affect East-West

relations currently engaged with other serious problems, such as those affecting

Israel-Palestine, Iran, Sudan and Afghanistan.

In any event, the likelihood that any Commission could be established prior to the 7

November elections now looks remote. The emergence in March or April 2011 of a

new administration in Nay Pyi Taw formed on the basis of the 2008 Constitution

which is likely to come into effect around February 2011 14 could provide a better

opening to raise these serious issues directly with the Burmese authorities, though it

seems unlikely that Quintana will be able to visit Myanmar again in his present

capacity. China and Russia might even acquiesce, once the elections are out of the

way. Excessive zeal this side of the elections is unlikely to be helpful in securing an

effective response of benefit to the Burmese people.

Derek Tonkin

Chairman Network Myanmar

13http://www.oslocenter.no/index.php?option=com_content&task=view&id=253&Itemid=1

14Article 444. (a) of the Constitution: "The Government that exists on the day this Constitution comes

into operation shall continue to discharge the respective duties until the emergence of the newGovernment formed and assigned duties in accord with this Constitution." After the Constitution comesinto force, the President has to be elected and Ministers and other senior officials appointed.