Towards universal ratification of the UN International Convention on the Elimination of All Forms of Racial Discrimination: the case of Myanmar.

By Dr Annapurna Waughray, Reader in Human Rights Law, Manchester Law School

 

In April 2017 I visited Myanmar (formerly Burma) with Dr David Keane of Middlesex University to meet non-governmental organisations (NGOs) and activists in Yangon to discuss the relevance and potential impact of the UN International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) for Myanmar and the prospects for its ratification by the government of Myanmar.  Our visit was coordinated by the International Commission of Jurists (ICJ) and the Office of the High Commissioner for Human Rights (OHCHR) in Yangon.

This project builds on my interest in ICERD and my research on caste-based discrimination as a form of descent-based racial discrimination under ICERD. Since its adoption by the UN in 1965, ICERD has become the primary source of States’ international obligations on racial discrimination involving racial, ethnic and linguistic groups, as well as indigenous and tribal peoples and other minorities. It is the oldest of the post-war UN international human rights treaties, widely seen at the time of its adoption as an international statement against apartheid and colonialism.

Dr Keane and I are co-editors of the first ever edited collection on ICERD, forthcoming with Manchester University Press, to mark its 50th anniversary. In the Introduction to the collection we note that there are just fourteen States worldwide that have not signed or ratified ICERD: nine Pacific or Caribbean island nations and five ‘larger’ States, Brunei, Malaysia, Myanmar, North Korea and South Sudan. In September 2016 David made an initial visit to Myanmar at the invitation of the ICJ and the OHCHR to discuss the scope of ICERD, its relevance to Myanmar, and Myanmar’s possible ratification of the Convention. He visited the Myanmar National Human Rights Commission and met with a government representative in the capital, Naypyidaw. But the most important meeting was with NGOs in Yangon, hosted by the OHCHR; and in April 2017 we visited together as co-editors of the book to discuss the project further with these NGO groups.

Myanmar is said to have around 135 ethnic and tribal groups and is a State “where multi-National races collectively reside” according to Article 3 of its Constitution.  Thus working towards ratification of ICERD would appear essential. However, the nature of who are the ‘national races’ of Myanmar , and how exactly these designations are accorded, is contested. For example the Rohingya, the subject of recent international and UN concern, are not recognised as a ‘national race’ – but they are not the only group excluded from Myanmar’s somewhat arbitrary taxonomy. This matters because citizenship rights are linked to national race membership. Moreover, Myanmar has experienced decades of authoritarian rule that has compromised the independence of its legal system. After protests in 1988 the University of Yangon was shut down including its law school and even after it re-opened, no lawyers were trained there until 2014.

This means that advocating for ratification of ICERD by Myanmar is not straight-forward. Research on Burma’s contribution to ICERD reveals the significant role it played.Historically, Myanmar/Burma has emphasised the elimination of racial discrimination as central to the work of the United Nations.  Burma’s Permanent Representative to the UN stated in the 1950s of its rationale in joining the newly-formed world body:

“Burma’s imagination had been fired by the high idealism and lofty purpose of the [UN] Charter… a world in which discrimination based on race and colour would be eradicated, and a world in which the traditional under-dog, the masses of Asia and Africa and Latin America would at long last begin to enjoy a fairer share of the good things of the world”.

In early 1964, the Government of Burma was one of just eight States to offer an official commentary on the draft ICERD treaty, illustrating how important it considered the treaty to be.  But the most interesting historical aspect is that the UN Secretary-General throughout the 1960s was Burmese: U Thant. According to Aung San Suu Kyi, U Thant’s position as the first Asian UN Secretary-General is   “a matter of pride not only for Myanmar citizens but for all Asians”; yet for decades U Thant was left out of school textbooks on Myanmar history.

In 1965, it was UN Secretary-General U Thant who ushered in ICERD and a new age of international human rights treaties and their monitoring bodies. On 21 December 1965, he stated to the UN General Assembly:

“In the Charter, the peoples of the United Nations proclaimed their determination to reaffirm faith in human rights and in the dignity and worth of the human person. The Convention which the General Assembly has just adopted represents a significant step towards the achievement of that goal. Not only does it call for an end to racial discrimination in all its forms; it goes on to the next, and very necessary, step of establishing the international machinery which is essential to achieve that aim.”

Some striking photographs from the time show U Thant with various State representatives signing ICERD.

However, historic parallels do not make for compelling arguments that Myanmar should ratify the treaty today. What emerged in both the meetings with NGOs was the need to identify what ICERD might mean for contemporary Myanmar. We were able to outline, for example, that the issue of unrecognised groups is something that has come before the UN Committee on the Elimination of Racial Discrimination (CERD) many times in relation to different states and there are international legal mechanisms by which CERD resolves such contestations. Language was another issue; no Burmese (or other national language) version of ICERD exists, and even where there are Burmese versions of international documents, such as the Universal Declaration of Human Rights, NGOs challenge the veracity of such translations. Thirdly, the impact of ICERD on the 7 (out of 10) members of the Association of South East Asian Nations (ASEAN) that had already ratified ICERD was important. The experience of Singapore, Thailand and other ASEAN states was something that the NGOS wanted to discuss in detail.

We are currently drafting a report, ‘Towards Ratification of ICERD by Myanmar’, with the support of the ICJ and the OHCHR, integrating the inputs and contributions of the NGOs and other groups on the priorities for Myanmar. ICERD is not a treaty that is very well understood; our presentation and discussions with stakeholders certainly generated interest around its ratification. But ratification can only happen if the NGOs in Myanmar feel it is useful and will push their government to both ratify and then implement the treaty’s provisions. Convincing them is really the aim of this work.

 

Annapurna Waughray’s visit to Myanmar was supported by the Faculty of Business and Law at Manchester Metropolitan University. She is grateful to Dr David Keane of Middlesex University, Dr Daniel Aguirre of the ICJ, and Sarah Toner of the OHCHR in Yangon. This post is an adapted version of David Keane’s blogpost at https://mdxminds.com/2017/05/24/towards-universal-ratification-of-the-international-convention-on-the-elimination-of-all-forms-of-racial-discrimination-the-case-of-myanmar/

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