The Efficacy of National Human Rights Institutions Seen in Context: Lessons from the Myanmar National Human Rights Commission.

Author:Liljeblad, Jonathan
 
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In Human Rights Resolution 2005/74, the United Nations Commission on Human Rights recognized the importance of National Human Rights Institutions (NHRIs) in protecting human rights and called for further work to nurture their growth. In an effort to address critiques that it fell short of U.N. expectations for NHRIs, in March 2014 Myanmar's government enacted the Myanmar National Human Rights Commission Law to reform the Myanmar National Human Rights Commission (MNHRC) in accord with the Paris Principles. Despite the new law, the MNHRC continues to be criticized for ineffectiveness and lack of progress. This Article argues that the MNHRC is challenged by issues tied to Myanmar's political transition, and that as a result evaluations of the MNHRC need to be more cognizant of the context within which the MNHRC works. This Article takes the MNHRC as a case study in the development of NHRIs and sees the MNHRC's struggles as exemplifying the challenges facing nascent NHRIs in transition states, with the implication that greater contextual understanding is needed to generate evaluations that are more constructive in nurturing the abilities of NHRIs to advance the international human rights system.

TABLE OF CONTENTS INTRODUCTION METHODOLOGY AND TERMINOLOGY I. NHRI ACCREDITATION AND THE PARIS PRINCIPLES II. THE MNHRC'S "B" ACCREDITATION RATING III. THE CONTEXT OF MYANMAR'S POLITICAL TRANSITION A. Nascent Human Rights B. Underdevelopment and Limited Capacity C. Uncertain Complexities of Transition D. Persistent Military Influence IV. MNHRC STRATEGY AGAINST THE CHALLENGES OF MYANMAR'S TRANSITION V. A CAUTIONARY CASE ON BEHALF OF INCREMENTALISM VI. MNHRC ACCOMPLISHMENTS IN MYANMAR'S CONTEXT VII. CONCLUSION AND DIRECTIONS FOR FURTHER RESEARCH INTRODUCTION

National Human Rights Institutions (NHRIs) are independent, state-created entities tasked with promoting international human rights on a local level. In 2005, the Commission on Human Rights (replaced by the Human Rights Council in 2006) issued a resolution recognizing the importance of NHRIs in protecting human rights and calling for further work to nurture their growth. (1) Then-Commissioner Louise Arbour affirmed the sentiments of the resolution in her March 2005 speech to the 61st Session of the Commission on Human Rights, noting the United Nations' sustained support for NHRIs as a way of helping states meet international human rights standards. (2) In order to fulfill such expectations, the United Nations (U.N.) maintains guidelines set forth in the 1993 Paris Principles that require NHRIs to maintain independence from their state, an inclusive and transparent selection process, adequate capacity, and an active commitment to advancing the U.N. system of human rights. (3) Compliance with the Paris Principles is assessed via an accreditation system administered by the International Coordinating Committee of National Human Rights Institutions (now called the Global Alliance of National Human Rights Institutions (4)) Sub-Committee on Accreditation (ICC Sub-Committee), which administers an accreditation system to assess NHRI compliance to the Paris Principles. (5)

The Myanmar National Human Rights Commission (MNHRC) is the entity tasked with carrying out NHRI activities in Myanmar. (6) In an effort to address U.N. concerns that the MNHRC did not meet the Paris Principles, (7) in March 2014 Myanmar's government enacted the Myanmar National Human Rights Commission Law (Enabling Law) to reform the MNHRC in accord with the Paris Principles. (8) Following the Paris Principles, the law provided a statutory basis for the MNHRC and removed it from its previous status under presidential discretion. (9) It also based the MNHRC's mandate on universal human rights; explicitly described its powers of investigation, publication of reports, referrals and recommendations, and promotion of human rights; and granted it operational and financial independence. (10) In essence, the Enabling Law institutionalized the MNHRC as an instrument of the international human rights system in Myanmar.

The ICC Sub-Committee, however, found these changes insufficient. In its November 2015 review of the MNHRC, the ICC Sub-Committee awarded it a "B" accreditation that fell short of the ideal "A" rank. (11) The ICC Sub-Committee justified its rating by citing issues regarding membership, funding, independence, and activism that the committee saw as impediments to the mission of the MNHRC as an NHRI. (12) In particular, the ICC Sub-Committee criticized the MNHRC for not being more rigorous in exercising its mandate to address human rights violations in Myanmar. (13) The ICC Sub-Committee's perspective echoes the arguments of critics who accuse the MNHRC of failing to respond to allegations of human rights violations and of being too circumspect in its interactions with the Myanmar government. (14) For such voices, the MNHRC is an ineffective institution with little commitment to advancing human rights in Myanmar. (15)

This Article takes the MNHRC as a case study on the difficulties of NHRIs, with the MNHRC's struggles exemplifying the challenges facing nascent NHRIs in transition contexts. Analysis of the MNHRC can provide insights for understanding NHRIs in other countries. Specifically, this Article argues that an evaluation of the MNHRC needs to be placed within the larger context of Myanmar's ongoing political transition, and that doing so shows that the MNHRC's apparent measured progress reflects an incrementalist strategy appropriate for the MNHRC's challenges. The analysis begins with a brief background introducing the MNHRC, the standards for NHRIs set by the U.N. Paris Principles, and the accreditation system that the ICC Sub-Committee exercises to monitor NHRIs. The analysis proceeds to discuss the context of Myanmar's democratization, identifying the risks to the MNHRC posed by the country's democratic transition. Following a review of contextual risks, the analysis continues with an explanation of why the MNHRC's behavior is consistent with scholarly arguments in favor of an incrementalist approach that ties the MNHRC's growth to the pace of political reform. The discussion then turns to a cautionary tale that shows how an aggressive agenda by another Myanmar institution, the Constitutional Tribunal, led to a self-defeating confrontation with Myanmar's Parliament. After this, the Article offers data that shows the MNHRC has exercised its powers in a manner consistent with an incrementalist strategy and has managed to further its mission of promoting human rights while doing so. The Article concludes by drawing implications from the case of the MNHRC for other NHRIs and identifying further directions for research that can extend the findings of the analysis. The Article finishes with a call to contextualize evaluations of the MNHRC and other NHRIs so as to better direct criticism towards more constructive approaches that facilitate their improvement.

METHODOLOGY AND TERMINOLOGY

Methodologically, the bulk of this Article is based on an ethnographic study conducted in Myanmar under a United States Fulbright Scholar grant from 2014-2015. It should be noted that while the Myanmar government and the MNHRC are working to make their documents publicly accessible, they have not made all their materials available online. Hence, the MNHRC materials for this study involve a mixture of documents posted on the MNHRC website along with documents--particularly an English-language translation of the 2014 Enabling Law--acquired in person from MNHRC members, supplemented with interviews and field notes made as an observer of the MNHRC offices in Yangon from 2015-2016. In contrast, materials from the United Nations and the news media regarding Myanmar and the MNHRC are readily available online, and are used as primary and secondary source materials.

To facilitate the discussion for readers not familiar with Myanmar, this Article uses English terminology to refer to Myanmar's political institutions. While Myanmar's national government uses a quasidemocratic model with identifiable executive, legislative, and judicial branches, the nomenclature differs somewhat from Western terminology. The words "President" and "Supreme Court" are used in the same way as in the West to refer to the heads of the executive and judicial branches. However, this Article substitutes the word "Parliament" in lieu of "Hluttaw" for Myanmar's national bicameral legislature, with the terms "Upper House" and "Lower House" used instead of "Amyotha Hluttaw" and "Pyithu Hluttaw," respectively. Beyond Myanmar source materials, this Article uses English-language versions of U.N. texts provided on their original U.N. websites.

  1. NHRI ACCREDITATION AND THE PARIS PRINCIPLES

    As defined by the United Nations, NHRIs "promot[e] and monitor[] the effective implementation of international human rights standards at the national level" (16) and help "bridge the implementation gap between the international human rights obligations and actual enjoyment of human rights on the ground." (17) Because they are formed by statutory or constitutional mandate, NHRIs are extensions of the state. However, under the guidelines of the Paris Principles, their mandates must be sufficient to allow them to function as neutral entities independent of both governments and non-governmental organizations (NGOs). (18) The Paris Principles call upon NHRIs to promote and protect human rights by educating and training government and civil society on human rights, providing publicly available advice and reports on human rights, proactively identifying and investigating human rights violations, monitoring state enforcement of human rights, and encouraging the provision of remedies to victims of human rights abuses. (19) NHRIs are, in essence, instruments of the U.N. human rights system that serve to oversee, critique, and assist their respective states and societies in...

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