Passing the Buck? The UN Security Council’s Undue Reliance on ASEAN to Defuse the Myanmar Crisis

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After the UN Special Envoy’s highly-charged report to the UN Security Council of “widespread, systematic attacks on civilians in Myanmar” and the continuum of unabated atrocities against peaceful protesters, children, journalists, among other unarmed victims of Myanmar’s rapid descent away from democracy towards ‘failed state’ status, it is readily observable that the 10 March 2021 Statement by the President of the Security Council emphasized reliance on the Association of Southeast Asian Nations (ASEAN) to help engage all parties in brokering peace:

“The Security Council reiterates its strong support for regional organisations, in particular the Association of Southeast Asian Nations (ASEAN) and its readiness to assist Myanmar in a positive, peaceful and constructive manner. It commends ASEAN’s continued efforts to engage with all relevant parties in Myanmar. The Council welcomes the recent informal ASEAN Ministerial meeting on 2 March, and the statements made by the ASEAN Chair on 2 March and 1 February, which recalled the purposes and principles of the ASEAN Charter, notably the principle of democracy, adherence to the rule of law, good governance, the protection of human rights and respect for fundamental freedoms, called on all parties to exercise utmost restraint and seek a peaceful solution through constructive dialogue and practical reconciliation in the interests of the people and their livelihood.” (10 March 2021 Statement, fourth paragraph).

The Security Council issued a second Statement on 2 April 2021, again supporting ASEAN’s efforts to broker peace, and reminding Myanmar of various international human rights obligations, especially in light of the continuing cross-border crisis steadily escalating with Myanmar’s Southeast Asian neighbors receiving a steady influx of refugees.  In both statements, the Security Council refrained from characterizing the Myanmar crisis in any terms other than as a domestic “democratic transition”, and maintained its “strong commitment to the sovereignty, political independence, territorial integrity and unity of Myanmar.”

This post will discuss the framework of applicable ASEAN law and its thin regional, political, and security institutions to address the burgeoning crisis in Myanmar and its spillover to Southeast Asia’s regional security. I argue that, absent any specific legal complaint from any affected ASEAN Member State (such as Thailand which is receiving thousands of Myanmar refugees and whose border is impacted by the Myanmar air strikes on villages in the Karen state or Malaysia which has long been troubled by the influx of Rohingya refugees from Myanmar and is contemplating their forced repatriation to Myanmar), the ASEAN Summit (e.g. the highest decision-making body in ASEAN composed of Heads of State of the individual ASEAN Member States) would not likely seek recourse through regional legal dispute settlement mechanisms under the ASEAN Charter to engage Myanmar’s military junta, despite recent calls by Indonesian President Joko Widodo for an emergency ASEAN Summit meeting.  ASEAN Heads of State will also be unlikely to regionally enforce ASEAN Charter obligations on Myanmar, given the potential repercussions of setting such an institutional response and regional precedent as the response for continuing human rights and democratization challenges of growing semi-authoritarian regimes in Southeast Asia. 

Finally, I argue that the UN Security Council’s repeated emphasis on ASEAN’s role to broker peace in Myanmar should not be made at the expense of the Council’s own overarching mandate under Article 39 of the Charter of the United Nations to make its own determinations of any threat to the peace, breach of the peace, or act of aggression and to make recommendations, or decide on such measures necessary to maintain or restore international peace and security. Much as the UN Security Council has often relied on cooperation with regional organizations such as the African Union in collective security matters, the Security Council’s status of cooperation with ASEAN is relatively more nascent since its 2007 Memorandum and 2011 Joint Declaration on Comprehensive Partnership.  The UN Security Council cannot afford to abdicate its own responsibilities to ASEAN. One cannot expect ASEAN’s Political-Security Community pillar to achieve what is, in the first place, the foremost task of the UN Security Council.  Given the spillover security, humanitarian, and refugee consequences to Southeast Asia from Myanmar’s overwhelming use of military force against its own civilians, it is even more urgent that the UN Security Council forego waiting for ASEAN to privately broker the peace, and instead itself take up the diplomatic matter (and any measures to be taken in regard to threats to the peace or breaches of the peace) directly, in light of its own third pillar responsibility to protect when a State is manifestly failing to protect its own population.

ASEAN Law and Southeast Asian Regional Security in 2021

ASEAN Member States bear the fundamental obligation under the ASEAN Charter to “take all necessary measures, including the enactment of appropriate domestic legislation, to effectively implement the provisions of this Charter and to comply with all obligations of membership.” [ASEAN Charter, Article 5(2].  The Myanmar military junta’s reported continuing use of force towards the unarmed Myanmar civilian population (which is now causing a mass exodus of refugees towards other ASEAN Member States such as Thailand and possibly Malaysia with its existing Rohingya refugee population as well as ensuing economic and political instability therein), arguably violates ASEAN Charter Principles requiring all ASEAN Member States to “act in accordance with the following Principles”:

“(h) adherence to the rule of law, good governance, the principles of democracy and constitutional government;

(i) respect for fundamental freedoms, the promotion and protection of human rights, and the promotion of social justice;

(j) upholding the United Nations Charter and international law, including international humanitarian law, subscribed to by ASEAN Member States;

(k) abstention from participation in any policy or activity, including the use of its territory, pursued by any ASEAN Member State or non-ASEAN Member State or any non-State actor, which threatens the sovereignty, territorial integrity or political or economic stability of ASEAN Member States.” [ASEAN Charter, Article 2(2)(h) to (k).  Emphasis added.]

While ASEAN Foreign Ministers recently released a March 2, 2021 statement calling for de-escalation, the ASEAN Summit itself has not yet met as the “supreme policy-making body of ASEAN” [ASEAN Charter, Art. 2(a)] with the express authority under the ASEAN Charter to “address emergency situations affecting ASEAN by taking appropriate actions” [ASEAN Charter, Art. 2(d)]. Serious breaches of the ASEAN Charter are supposed to be referred to the ASEAN Summit for its decision [ASEAN Charter, Art. 20(4)], but up to this point, the ASEAN Summit has not been convened at all, despite public urgings from Indonesia, Singapore, and Malaysia which have all explicitly condemned the Myanmar military junta’s use of force against its own civilians.

While the ASEAN Charter provides for inter-State dispute settlement mechanisms [ASEAN Charter, Chapter VIII] and also recognizes the right of recourse of ASEAN Member States to peaceful means of dispute settlement under the UN Charter [ASEAN Charter, Art. 28], at this point, no ASEAN Member State has thus far publicly characterized the Myanmar crisis as an inter-State dispute, regardless of Myanmar’s air strikes in the Karen state or the continued exodus of refugees as a result of the Myanmar military’s actions towards its own civilian population.  The continued mischaracterization of the Myanmar crisis as somehow an ‘internal’ matter lends credence to the Myanmar military junta’s repeated assertion of sovereignty and non-interference as a fundamental ASEAN Charter obligation [ASEAN Charter Articles 1 and 2], in order to exclude ASEAN from acting out of its legal duties under the ASEAN Charter.  As of this writing, the Myanmar military junta has declared a “ceasefire” but also that it would “continue to respond to actions that disrupt the government security and administration.”  On Friday April 2, 2021, it was reported that the Myanmar military junta violated its own ‘ceasefire’ by increasing air strikes against ethnic minority forces supporting the coup protesters in the Karen state.

While the UN Security Council places considerable faith in ASEAN’s constructive engagement diplomatic approaches, this posture demonstrates the UN Security Council’s outdated understanding of ASEAN. While ASEAN’s ‘constructive engagement‘ approach to political diplomacy in the 1960s and 1970s successfully defused various conflicts and intra-regional tensions in or among countries such as Viet Nam, Cambodia, Malaysia, the Philippines, Indonesia, and Thailand (and some through the ASEAN Regional Forum), these are not easily replicable outcomes.  As I showed in recent work on the historical track record and normative international legal commitments in ASEAN’s approaches to Southeast Asian regional security, much of ASEAN’s non-transparent ‘constructive engagement’ diplomatic approach is actually politically contingent on the strong leadership composition of the original ASEAN Five membership (Indonesia, Malaysia, Thailand, the Philippines, Singapore) that generally tended to be incrementalist and strategically cautious by nature from the 1960s to the 1990s. The original ASEAN Five political consensus is unlikely to materialize in the present Myanmar democratization, human rights, and refugee crisis and its spillover consequences to Southeast Asia, and it is even less likely that newer entrants Brunei Darussalam (which presently holds the ASEAN Chairmanship) and countries such as Laos, Viet Nam and Cambodia could by themselves produce the needed regional political consensus. Today’s ASEAN economies are crippled by the global pandemic, the protracted states of emergency used readily by authoritarians in power, and disempowered Southeast Asian populations that are themselves largely unable to use democratic means of voice, dissent, expression, and assembly to effectively mobilize for the realization of human rights within a climate of persistent and repeated attacks on, and killings of, human rights defenders, journalists, and lawyers in Southeast Asia. While current ASEAN Chair Brunei Darussalam has called for dialogue in regard to Myanmar, it has also not actively steered the ASEAN meetings agenda for 2021 towards responding to cross-border human rights and human security issues relating to the Myanmar crisis.  Many of the ASEAN meetings for 2021 instead focus on the ASEAN Economic Community pillar with respect to economic cooperation and economic integration issues in the COVID era. For the UN Security Council to announce its reliance at this time on ASEAN to broker a peace in the Myanmar crisis, is suggestive of the UN Security Council’s own obliviousness to the UN’s own reports on the rapidly deteriorating status of civil, political, economic, social, cultural, environmental, labor, developmental, and related rights in Southeast Asia (see among others, here, here, and here).

UN Security Council and the Responsibility to Protect

The UN Special Envoy has already warned the UN Security Council of the “imminent bloodbath…a multidimensional catastrophe in the heart of Asia” if the Council does not take collective action.  While the UN Security Council has issued two press statements thus far characterizing the crisis as one involving the “democratic transition in Myanmar”, the UN Security Council has also stopped well short of making any determination of a threat to the peace or the breach of the peace – the necessary predicate for any non-forcible and forcible enforcement measures that could be taken under Chapter VII of the UN Charter.  Both the United States and the United Kingdom have respectively issued sanctions targeting the Myanmar military junta-controlled conglomerate (e.g. Myanmar Economic Cooperation), but there is a demonstrable reluctance at this point for any further action by the UN Security Council after permanent members China and Russia blocked any Security Council condemnation of the Myanmar military coup and the military junta’s actions against Myanmar civilians.  China and Russia instead favor punting the matter to ASEAN, through an “ASEAN special summit on the post-coup Myanmar“. 

The UN Security Council’s inaction at this point regarding the reported actions of the Myanmar military junta are particularly concerning, especially since this is not the first time that such armed actions of violence by the Myanmar military junta towards civilians have been brought to its attention.  The UN Security Council has long been briefed on the pending case involving the Myanmar military junta’s alleged actions towards Rohingya communities in the Rakhine State, in the pending case The Gambia v. Myanmar at the International Court of Justice, whose judges unanimously voted to indicate provisional measures ordering Myanmar to “take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular: (a) killing members of the group; (b) causing serious bodily or mental harm to the members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and (d) imposing measures intended to prevent births within the group”, as well as to “ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in point (1) above, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide”.

The UN Security Council’s inaction and seeming heavy reliance on ASEAN to respond to the Myanmar crisis and its cross-border consequences to Southeast Asia is also incompatible with its own role in discharging the legal responsibility to protect, as articulated in the UN General Assembly’s 2005 World Summit Outcome Document:

138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out. (Emphasis added.)

The UN Security Council simply “cooperates” with relevant regional organizations when appropriate in discharging its responsibility to protect.  ASEAN is not the appropriate regional organization at this time to serve that foremost responsibility to protect, when it neither possesses the legal mandate or enforcement powers to do so.  While the UN Security Council should indeed be mindful of the crucial role that ASEAN can play in backdoor diplomacy through constructive engagement, it should also not take the risk of delayed inaction by punting the Myanmar crisis to ASEAN when Southeast Asia itself is already seriously beleaguered by regional security, economic stability, and human rights challenges.  The UN Security Council cannot limit itself to two press statements and then counter-intuitively shift the burden of resolving what is fast becoming a crisis for international peace and security in the heart of Asia, to the already weakened platform of ASEAN diplomacy when Southeast Asia is simultaneously challenged by an unrelenting resurgence of the COVID pandemic, under continuing restrictions and lockdowns, and still mired in multiple states of emergency in various semi-authoritarian regimes.  This is a case for intensified UN Security Council activity, not less.

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