International Law and the Right to Development: Challenges and Prospects of Myanmar Thesis Proposal

Introduction to Country

Formerly known as Burma, the Republic of the Union of Myanmar is an independent state in Asia. The country occupies a totals surface area of about 260,000 square miles. The country is comprised of a number of regions, including states and union territories. The capital of the country is Nay Pyi Taw, according to the Constitution of the Republic 2008 (Haacke, 2006). Myanmar is a multi-ethnic society, and Burmese is the official communication language. Politically, the country practices multi-party democracy. The mandate and functions of the executive, judiciary and legislative branches are separate and independent for the purpose of non-interference and power balance. The unions, regions and states share the country’s sovereign power. According to the 2008 Constitution, the country’s sovereign politics has to be shared equally amongst local administrations, for the same purposes of power balance. However, there have been concerns about the country’s progress, international laws and right to development, which form basis for the current study.

Background of the Study

According to Alvarez (2005), international law is unique from other areas of law by the fact that it has no defined area or governing body. Instead, international law refers to a number of varied frameworks, which impact the legal interaction of states across the world. The coordination helps to regulate the manner in which the countries conduct their activities and how they handle matters such as human rights. Therefore, there are numerous laws, including agreements, charters and accords, which have been established to create the framework for the existence of international law per se. The governing authority of the legal functioning is the United Nations (Glodsmith & Posner, 2005). Should the United Nations never have existed as the unique governing body, consent and adherence to the international law would have been chaotic, and ultimately disastrous. According to Lauterpatch (2002), there are three major legal principles which are used to guide the implementation of the international law. The aforementioned are the principle of comity, act of state doctrine and policy of sovereign immunity. In order for a nation to be recognized as sovereign, it must have the government which controls and regulates its population and territory.

As such, according to the United Nations legal council, the international law defines the legal responsibilities of member states and how they should relate to each other. The domain of international law encompasses an array of issues which are of international concern. The included factors are the conduct of states in times of war, upholding human rights and problems of nationality (Malanczuk, 2002). Ever since the development of the international law, the United Nations has been evaluating the progress of countries to observe any irregularities, identify the causes and provide solutions for the same. The United Nations has noted a number of problems with upholding international law in several countries, and the challenges identified with the aim of making adaptable corrections (Honhold & Fletchtner, 2009). Given the powers that the United Nations holds, all nations are obligated to comply with the processes undertaken by the international body, and to ensure that every recommendation is adopted.

According to the UN Article 1.1 Declaration on the Right to Development, “the Right to Development is an inalienable human right by virtue of which every human person and all people are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized” (Frick et al, 2012). The same also implies that humans have the right to a chance of self-development through realization, and the chance has to be provided by the relevant authorities and administrations within their jurisdiction. There are a number of sources for the right to development which have been identified by the United Nations, and duty to foreseeing the same allocated to various authorities (Harris, 2004). In the context, all states have the responsibility of ensuring that they set conditions right to favor the realization of the human rights. There are three main levels for the creation and support of the conditions for the right to development. The responsibility is at state level, individual action and regional formulation of development policies and programs (Harris, 2004).

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Accordingly, the United Nations has mechanisms to deal with the right to development. Under the laws, the UN has the mandate of ensuring that they monitor and evaluate the progress of right to development in all nations. In order to fully realize the same, the High Commissioner and the United Nations High Commissioner for Human Rights have been required to “promote and protect the realization of the right to development and to enhance support from relevant bodies of the UN system for this purpose” (Robinson & Boyle, 2006). Among the added values of the right to development are the integration of aspects of human rights and meaningful participation of all citizens in realizing the same. As such, there are a number of ways of ensuing that the right to development is practically attained. The first one is an assessment of the extent to which individual nations have taken steps to realize the promotion of right to development, evaluation of human rights implications within the states, and stakeholder participation in affairs evaluation (Hoffman, 2006). Additionally, the United Nations has been recommended that all human rights principles are to be applied to the realization of the same.

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At the moment, Myanmar is undergoing rapid transformation, which follows decades of internal wrangles in the government and administration. Brutal dictatorial regime has been the major cause, which led to civil wars and problems with the wider international community (South, 2004). However, researchers have noted that the country is committed to reforms, given a number of governmental approaches to the nature of governance. Political prisoners have been freed and there has been an announcement of cease fires, as negotiations amongst warring groups have been initiated (South, 2004). Given the aforementioned, the country has embarked on reforming in terms of international law obedience and promotion of the right to development. Ahead of the efforts are a number of challenges that the country faces. For instance, the effects of rampant corruption and poverty pose the threats to developmental projects that the government and the international community are trying to implement. One of the problems that previous research has identified includes the effects of suppression and ignorance of international human rights by previous administrations (Haacke, 2008).

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Regardless of the past challenges, the country is on a path to major reforms. However, studies have shown that formal changes to the country’s international law and right to development have not yet gained enough momentum to bring about desirable results in a timely manner (Nemoto, 2007). In order to have improvement, there is need to develop a legal structure that protects the basic human rights, without concern to the social or economic status of the citizens. Kurlantizick (2002) says that one of the fundamental stages in the process of upholding international law and the right to development is obtaining the government’s signature, ratification and implementation of the United Nations Human Rights treaties. The strategy will be a part of the efforts to build the country’s social, economic and human rights position. Moreover, clear definition of the country’s meanings of human rights, citizenship and governance has to be established, as the basics of the promotion of the international law and the right to development is paramount for country’s growth.

Statement of the Problem

Following the ratification of the Association of South East Asian Nations (ASEAN) in 2008, some of the members of the Asian bloc accused Myanmar of unfairly treating political leaders and other human rights violations (Haacke, 2005). It was after long deliberations that the other member states agreed upon terms to boost human rights development, despite the fact that no one was sure of the effects that the same would have on Myanmar. The social approach was one of the advances that lay out reasons for controversy to the country’s respect of international law and right to development. Additionally, Myanmar has for long suffered under the rule of the military, which had little regard for the independence of civilian politics. After the withdrawal of the British colonial government, the country’s democracy became short-lived. A military coup overthrew a democratically elected government and promoted socialism.

By 2016, the world will be marking three decades since the declaration of the Right to Development by the United Nations (Marks, 2004). Thus, the year is a time for nations to assess their adherence to the declaration, drawing attention to the 1986 United Nations promise to establish human rights in all countries. However, for many states, including Myanmar, the practical application and legal effectiveness of the right to development has not attained desirable results. Moreover, the nation’s leaders and public institutions have not yet put in place plans to embrace the changes. In order for the country to achieve effectiveness in upholding the right to development, they government needs to focus on the negative practices that undermine international law and human rights, and adopt pragmatic approaches to solving the same. The comprehensive change is not only a solution to the dilemma, but also a technical framework to ensure that there is long lasting application of legal solutions to problems facing a country’s democratic progress.

According to Uvin (2007), rights to development are propagated by individual and collective paradigms. In the context, the actual holders of the right to development are the people of Myanmar. Thus, the national government is the one that is obligated to ensure that the concepts of international law are embraced and that there is corporation with other nations to follow on their actions. Consequently, it is the duty of the government of the republic of Myanmar to guarantee that the global human rights agenda as set by the United Nations is realized, and to pave way for the development of the country’s economic, social and political prospects. Additionally, all stakeholders in the country’s governance have to commit to the promotion of the international law in the public discourse, which is the fundamental guideline for laying the national framework for sustainable development (Abbott & Snidal, 2000). Legal analysis of the right to development in Myanmar remains critical, because the persisting uncertainty of the government’s commitment to the same, and the nature of international law in the country.

In the same light, literature is short in examining international law and right to development in Myanmar, its challenges and prospects. At the moment, the People’s Right to Development remains the matter of mere legal talk in the country. The proposal looks to explore the meaning of pragmatic development in the context of Myanmar’s current situation (Thein, 2004). There is also a problem in evaluating the role of international human rights law and right to development, given that there is a need to solve Myanmar’s chronic under-development in terms of its economy, society and politics. Equally, time is running out for the country to fulfil the United Nation’s 2015 deadline target for the completion of the international agenda on legal and political justice.

Purpose of the Study

There are two main purposes of the study, which are to identify the challenges and prospects for Myanmar’s international law compliance and to analyze the right to development in the country. The study looks to introduce the issues in international law from the standpoint of application in Myanmar. The proposal shall present the need for research to look into the political theories and basic liberties of the people of Myanmar. The overview of the internal law of human rights as currently applied in Myanmar will be presented, as well as the identification of the driving principles and strategies that the country has put in place to address the issues of human rights violations, the economic and social development of the people. Moreover, the proposal shall look to evaluate the mechanisms of compliance with international law in Myanmar, which is the basis of identification of challenges and prospects of the same in the country.

The proposal shall also push for the investigation of the rule of law in Myanmar. Rule of law is a fundamental element for the upholding of international law and the right to development. The methodology employed shall attempt to investigate the legal fabric of the country that has the main function of ensuring that normal citizens have adequate access to justice. The researchers can confidently suggest ways for improvement of the country’s legal system. The proposal’s methodology shall also look at the manner in which government appointments are made, especially in sensitive areas such as the judiciary. By looking at the crucial legal processes, it will be possible to note out the shortcomings of the legal framework and authorities. The step is a preliminary framework in pointing out the challenges that the country is facing in upholding the international law and the right to development.

The study proposal shall also look to investigate the possible prospects for the country’s observance of international law and right to development. The required step is assessment of progress that has been made since the current government came into power in 2010. The research proposal shall take the approach of reviewing the laws that date back to the colonial era and which have been revised to serve the current system. A number of the aforementioned laws had been drafted by consultants and other stakeholders such as the office of the Attorney General. Additionally, the research proposal shall attempt to evaluate the meaning of the laws and their application to the current political setting in the country. The realization that local laws have a huge implication on the adherence of international law and the right to development is the pillar in growth. By evaluating the status of the country’s legal system, as far as implementation of international law is concerned, the research will have enough material to propose recommendations which can be used by relevant authorities in finding the way forward.

The study shall also provide recommendations for the strengthening of the country’s legal and political systems. The major aim is to help the government and other stakeholders in international law and development to set up a framework and policies for ensuring that the established requirements are met in a swift and right manner. In order to put Myanmar on the right side of international politics in human rights and democracy features, the country needs to reorganize its governing structures and find better solutions to the long lasting challenges that it has faced. Also, the study will help identify basic reforms that can be made to the country’s judiciary for the purpose of guaranteeing the protection of human rights in the context of adherence to the international law. Given that the country’s citizens have little trust for the judiciary system, the study shall look at the core reasons for the judiciary’s incompetency and propose reforms which can have positive effect and draw support from the locals.

Methodology

The research shall employ the legal historical methodology as one of the approaches of studying the challenges and prospects of international law and the right to development in Myanmar. According to Than (2000), legal reforms touch on the history of structural development and legal institutions. From the historical perspective, the legal science theory and practice depend on each other. All the legal theories have to be tested in practice, and while at it, the theory is paramount in planning the activities. The legal measures which are under question are evaluated against the principles of nature and religious requirement amongst others. Under the chosen methodology, the law is known to have become gradually scientific, and the legal and judicial system has evolved into becoming the essential promoters of the law (Than & Thein, 2007). One assumption of the methodology is the following. Despite the fact that the law may be applied in a way that seems technically right, there are a number of possibilities that the law was based on wrong assumptions.

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As such, the purpose of the methodology is to establish the exact developments of legal rules, and likewise, give recommendations for solutions which can be adapted in order to amend any laws based on historical facts. One feature of the chosen methodology is that it can be used in isolation, or yet still, it can be combined with a number of other methods to yield better results, depending on the needs of the research. Jin-zhao (2008) says that researchers, who have used the historical and scientific methodology, have taken the approach of giving a brief history of a certain legal rule, and the application of the rule within a given jurisdiction discussed. The approach is taken so as to compare the country’s laws with other legal systems, and equally, the developments that have been made in the said legal systems. For the purposes of the current study, there are two main approaches applicable. The first one is establishing the periods of legal history of Myanmar and pointing out their characteristics. With the historical assessment, the researchers shall use their own knowledge of the country’s legal history. Alternatively, the research can establish the court decisions which have been made by the country’s judicial system. Thus, the project can work through the decisions to establish the country’s position in upholding international law and the right to development.

 

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