Research Paper of the
September, 2003
Executive Summary
The Role of the Security Council Assigned by the United Nations Charter
The determination of a ‘threat to the peace, breach of the peace or act of aggression’ under Article 39 of the Charter
Why the Security Council should determine that the situation
in
Disruption to democracy
Internal conflict and gross violations of human rights and humanitarian law
Dire Humanitarian situation
The United Nations Secretary-General’s power under Article 99 of the Charter
Coercive Measures
Existing Sanctions Against the Burmese Regime
A Model Security Council Targeted
Sanctions Regime for
“The United Nations exists, among other reasons, for the fundamental purpose of maintaining peace and security in the world. One of its main activities, therefore, is the resolution of conflicts – a task which has become more complex in recent times when many conflicts take the form of internal factional and civil strife, though often with very serious external repercussions” – Secretary-General Kofi Annan.[1]
Recent events in has led to calls for the United Nations
Security Council to address and take action on the situation in
This paper will first discuss the role of the Security
Council assigned by the United Nations Charter for the ‘primary responsibility for the maintenance of international peace
and security’, then explore the recent practice of the Council in determining
what constitutes a ‘threat to international peace and security’ under Article
39 sufficient to trigger the coercive powers conferred on the Security
Council in Chapter VII. The paper then applies this practice to the situation
in
On
Internal conflict in
The national army commits a wide range of gross
violations of human rights and humanitarian law in the context of its
counter-insurgency activities in the ethnic areas. Violence against and
large-scale displacement and relocation of civilians has created one of the
largest refugee populations in
The Burmese people voted overwhelmingly in favour of democratic governance on
In a historic departure from past practice, the Association
of South-East Asian Nations (ASEAN) departed from its strict principle of
non-interference in the internal affairs of Member States during the 36th
ASEAN Foreign Ministers meeting and the 10th ASEAN Regional Forum meeting in
The Security Council should recognize the situation in
It should demand the release of Daw Aung San Suu Kyi, other
detained NLD MPs and members, as well as all political prisoners in
The Council should condemn the military regime’s egregious human rights abuses, its non-adherence to humanitarian law, and its refusal to engage in a substantive political dialogue with the democratic opposition (the NLD and other pro-democracy groups, particularly ethnic groups) toward establishing a democratic government.
In determining that the situation in
The fact that
The United Nations Charter confers remarkable powers upon the Security Council. The Security Council has primary responsibility for the maintenance of peace and security. In discharging this responsibility, the Council is required to determine the existence of any threat to international peace and security. The Council may impose measures to maintain and restore international peace and security. These measures may include arms embargoes, financial sanctions, travel bans and the severance of diplomatic relations, or the use of force. Where the Council imposes such measures, all Member States of the United Nations are obliged to observe them. This obligation supersedes conflicting international legal obligations.
The primary responsibility of the Security Council[13] for the maintenance of peace and security is contained in Article 24(1):
“In order to ensure prompt and effective action by the United Nations,
its Members confer on the Security Council primary responsibility for the
maintenance of international peace and security, and agree that in carrying out
its duties under this responsibility the Security Council acts on their
behalf”.
The requirement that the Council shall determine the existence of any threat to international peace and security is contained in Article 39:
“The Security Council shall determine the existence
of any threat to the peace, breach of the peace or act of aggression and shall
make recommendations, or decide what measures shall be taken in accordance with
Articles 41 and 42, to maintain or restore international peace and security”.
Security Council practice in determining the existence of a threat to international peace and security is examined below.
Where the Council has determined that a threat to international peace and security exists, Articles 39, 41 and 42 of the Charter set out what measures may be taken to maintain and restore international peace and security.
“The Security Council may decide what measures not involving the use of
armed force are to be employed to give effect to its decisions, and it may call
upon the Members of the United Nations to apply such measures. These may
include complete or partial interruption of economic relations and of rail,
sea, air, postal, telegraphic, radio, and other means of communication, and the
severance of diplomatic relations.”
“Should the Security Council consider that measures provided for in
Article 41 would be inadequate or have proved to be inadequate, it may take
such action by air, sea, or land forces as may be necessary to maintain or
restore international peace and security. Such action may include
demonstrations, blockade, and other operations by air, sea, or land forces of
Members of the United Nations.”
The obligation on all Member States to comply with these measures is contained in Article 25.
“The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”.
The fact that the obligation of Member States to comply with measures imposed by the Security Council under Article 39 supersedes any conflicting international legal obligations is contained in Article 103. Article 103 provides:
“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”.
“The Security Council shall determine the existence of any threat to the peace, breach of the peace or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security” – Article 39 of the United Nations Charter.
The Security Council, in exercising its power under Article 39 to determine whether a threat to the peace, a breach of the peace or an act of aggression exists, has considerable discretion. In the absence of judicial review of Council decisions, the Council has considerable latitude in defining what constitutes a threat to international peace and security.[14] This is compounded by the fact that the Council is under no obligation to make a determination under Article 39, even if it considers that a threat to or breach of the peace exists – Article 39 empowers, but does not oblige, the Security Council to act.[15]
Over the past ten years the Security Council has made determinations under Article 39 that a threat to peace and security exists with great frequency, and in a broader range of circumstances, than previously. Political analyst, Simon Chesterman, raises the point made by some commentators that given the difficulty in establishing what substantive meaning (if any) should be attributed to a ‘threat to international peace and security’, that such a determination is, increasingly, being treated as a formal rather than substantive hurdle. Chesterman argues that ‘a more fundamental difficulty in establishing the limits to this concept is the apparent link between such determinations and the political willingness to take measures in response to particular situations’.[16]
The reference to ‘international peace’ has given rise to difficulties with respect to the circumstances under which an internal conflict could constitute a breach of or a threat to the peace. It appears consistent to interpret Article 39 in the context of the goal of the collective security system (Article 1(1)) and the primary responsibility of the Security Council (Article 24), which are both explicitly restricted to the maintenance of ‘international’ peace and security. This interpretation favours the conclusion that a civil war is not in itself a breach of international peace, even though it might lead to such a breach. In recent practice, however, the Security Council has increasingly dealt with internal conflicts as such, regardless of a possible outbreak of inter-state war and of other inter-state consequences. In the 1990s, it has even shown tendencies to incorporate grave violations of human rights into the concept, thereby applying an ever broader notion of a threat to the peace. This development has significantly broadened the scope of action under Article 39.[17]
Typically, a breach of the peace is characterized by hostilities between armed units of two States. For example, the Security Council regarded the Argentine invasion of the Falkland/Malvinas islands as a breach of the peace. Internal armed conflicts can constitute breaches of the peace once it is accepted that these might pose threats to the peace regardless of any ensuing risk of an international war. If the prospect of a destabilization of the respective country, of human rights violations and of dire humanitarian consequences is considered as the cause of a threat to the peace, a breach of the peace occurs when these consequences manifest themselves. In practice, however, the Security Council has not yet termed such a situation a ‘breach’ but has confined itself to determining ‘threats to the peace’.[18]
Aggression presumes the direct or indirect application of the use of force. An armed attack constitutes aggression and in several cases the Security Council also qualified short-term military actions as falling into this category.[19] However, the Security Council has not distinctly designated what acts will be regarded as acts of aggression. The determination of an act of aggression by the Council is fundamentally a political rather than judicial finding.[20]
This is the broadest and least well-defined concept in
Article 39. In practice, it is almost the only one used by the Security
Council, whereas the existence of breaches of the peace or acts of aggression
are usually not specifically determined, even if obvious. The most typical and
obvious case of a threat to the peace is that of an impending armed conflict
between States, i.e. the imminent danger of a breach of the peace or an act of
aggression. Today, however, the range of situations possibly giving rise to a
threat to the peace reaches far beyond that ‘traditional’ confine, and is not
limited in temporal respect. For example, the Security Council has regarded
post-conflict situations as threats to the peace, and on this basis authorized
peace-building operations in
The paper will now consider three classes of situation that have been recognized by the Security Council as constituting (at least in part) threats to international peace and security: internal conflicts; violations of human rights and humanitarian law, and humanitarian crises; and disruptions to democracy.
Chesterman observes that:
“[t]he most basic transformation in the use of Security Council powers is that it now appears to be broadly accepted that a civil war or internal strife may constitute a threat to international peace and security within the meaning of Article 39”.[22]
In exploring the recognition by the Security Council that
internal conflicts may constitute a threat to international peace and security
within the meaning of Article 39, Chesterman states
‘it is common to trace the recent preparedness to view internal armed conflicts
as threats to the peace back to resolution 688 (1991), which addressed the
repression of Northern Iraq’s Kurds’.[23]
During the military campaign against
“Gravely concerned by the repression of the Iraqi civilian population in many parts of Iraq, including most recently in Kurdish populated areas, which led to a massive flow of refugees towards and across international frontiers and to cross-border incursions, which threaten international peace and security in the region”.
The Council clearly perceived that, in this situation, the
flow of refugees and cross-border incursions, were a threat to international
security. This was repeated in operative paragraph one of Resolution 688 (1991)
of
The Council has determined that fighting within a State on a
considerable scale, with the possibility of outside intervention, can
constitute a threat to international peace and security.[26]
In the former
The Security Council has also held that activities by an
armed rebel group within a State can constitute a threat to international peace
and security. Security Council Resolution 864 (1993) of
The Security Council has since 1992 established a consistent practice in dealing with internal conflicts through its measures in the cases of Somalia,[32] Liberia,[33] Rwanda,[34] Burundi,[35] Zaire,[36] Albania,[37] the Central African Republic,[38] Sierra Leone,[39] and East Timor.[40]
Simma notes that while in some of these cases, the Security Council still made reference to transboundary consequences of the conflicts and their effect on regional stability, in a number of others, both the text of the resolutions and the debates preceding their adoption show that the threat to peace, in the view of the Security Council, was founded wholly in the internal situations (e.g. Angola, Rwanda and Albania). It can therefore be assumed that any internal conflict of a considerable scale could constitute a threat to international peace and security.[41]
In a report by the International Commission on Intervention and State Sovereignty, the Commission comments that Security Council precedent suggests an emerging guiding principle which the Commission terms ‘the responsibility to protect’. The principle in question is that:
‘intervention for human protection purposes, including military intervention in extreme cases, is supportable when major harm to civilians is occurring or imminently apprehended, and the state in question is unable or unwilling to end the harm, or is itself the perpetrator. The Security Council itself has been increasingly prepared in recent years to act on this basis, most obviously in Somalia, defining what was essentially an internal situation as constituting a threat to international peace and security such as to justify enforcement action under Chapter VII of the UN Charter’.[42]
The notion of a threat to the peace has now come to
encompass violations of fundamental norms of international law such as human
rights and humanitarian law. This notion and the wide-ranging measures adopted
have included such innovations as the establishment of the two international
criminal tribunals for the former
Although the traditional view was that the Security Council should not concern itself with the human rights situation in a State, the Council has rejected this approach in its recent practice. As noted above, the Council expressly considered the human rights situation of the Kurdish population in northern Iraq, and concluded that the ‘consequences’ of the repression of that population, including refugee flows and cross-border incursions, constituted a threat to the peace. Since then, the Council has displayed an increasing willingness to consider the situation of the population in the State under consideration as a threat to peace in and of itself, and has placed less emphasis on the need for transboundary effects.
With respect to both
The Security Council determined in Resolution 1101 (1997) of
28 March 1997, that, following Albania’s descent into chaos as thousands of
people lost their life savings following the collapse of a number of officially
sanctioned pyramid investment schemes in March 1997, the situation constituted
a threat to international peace and security. The Council, acting under Chapter
VII, authorized
The
Security Council determined by its
Resolution 1264 (1999) of 15 September 1999 that the situation facing East
Timor following the outcome of the popular consultation of 30 August 1999
constituted a threat to international peace and security. In the preamble of
Resolution 1264 (1999), preceding its determination, the Council, inter alia, expressed its deep concern at the deteriorating
security situation and the continued violence against and large-scale displacement
and relocation of East Timorese civilians, stated that it was appalled by the
worsening humanitarian situation in East Timor, and expressed concern at
reports indicating that systematic,
widespread and flagrant violations of international humanitarian and human rights law had been committed in East Timor.
Security Council practice suggests that severe and
widespread suffering of a civilian population in armed conflicts can give rise
to a threat to international peace and security.[48]
The Security Council has unanimously adopted statements to the effect that ‘the
deliberate targeting of civilian populations or other protected persons and the
committing of widespread violations of international humanitarian and human
rights law in situations of armed conflict may constitute a threat to
international peace and security’.[49]
However the existence of a situation of an ‘armed conflict” appears to be an
important element due to the nature of the Security Council’s power under
Chapter VII. It is unlikely that the Council would invoke Chapter VII in
response to a humanitarian crisis unless it occurs in a time of conflict.
However, the Council’s action in
Chesterman notes that although the
initial grounds for the Council’s determination of a threat to the peace in
internal armed conflicts were premised on transboundary
implications, such as refugee flows (e.g. Iraq, Somalia and Rwanda), the
Council has, in the last decade, also determined that ‘serious’ or ‘systematic,
widespread and flagrant’ violations of international humanitarian law may
contribute to a threat to international peace and security. This is illustrated
by the Council’s resolutions establishing the International Criminal Tribunals
for the former
The Security Council has taken action with a view to
enforcing democratic principles in two specific instances. In 1993 and 1994,
the Security Council determined that
In both cases, the undemocratic change of government was
part of a dangerous overall situation which included the severe destabilization
of the country concerned, a decline in the humanitarian situation, and an
increase in refugee flows. The case of
Security Council Resolution 940 (1994) of
In brief, Jean-Bertrand Aristide was elected President of
Haiti in 1990 with 67% of the popular vote in an internationally-monitored
ballot. Aristide was removed from office by a coup d’etat
on
The Security Council’s embargo led the Haitian military
junta to accept the Governors Island Agreement (GIA), which provided, inter alia, for Aristide to be returned to power. Sanctions
were lifted on
In February 1994, Aristide reversed his previous position
and publicly signaled support for an intervention to overthrow the de facto government
and restore him to power. On
In Chesterman’s analysis of the
action taken by the Security Council against
There is no doubt that the practice of the Security Council in determining situations which constitute a threat to international peace and security has recently broadened to include internal conflicts, gross violations of fundamental norms of international law such as human rights and humanitarian law, humanitarian crises, and disruption to democracy. Most determinations have not rested only on one of these factors; usually the Council relies upon a combination of two or more of these factors.
Despite the Council’s broader approach to the determination of threats to peace and security, the Council has not taken action in respect of a number of country situations which would appear to qualify, and which are arguably analogous to those already on the Council’s agenda. This reluctance is primarily due to a lack of political will on the part of Council members, and/or the obstruction by one or more of the five veto-wielding permanent members.
The following section applies the recent practice of the
Security Council to the situation in
Based on the Security Council’s recent practice, the
argument can clearly be made that the Council could and should determine that
the current situation in
The essential element is the requisite political will to
bring
The May 30 attack on Daw Aung San Suu Kyi, her convoy and
supporters in Central Burma by purportedly thousands of men, the majority from
the pro-government militia (the Union Solidarity and Development Association
(USDA)), armed with sticks, clubs and rocks resulted in a large but unknown
number of deaths, detentions, arrests and disappearances.[61]
The military regime arrested Daw Aung San Suu Kyi after the attack and have
insisted that she is being held in ‘protective custody’ to ‘ensure her safety and for the sake of national
security.’[62] Scores
of NLD members and supporters have been arrested by authorities in the months
following the attack. The NLD headquarters in
Reports received indicate the premeditated nature of the attack and
crackdown. United
States embassy officials in Rangoon visited the scene of the attack and upon
return on 5 June reported that they had found signs of ‘great violence’ and
believed the attack was premeditated: ‘Clearly, orders were given for a violent
attack’ - weapons were ‘clearly prepared before the fact.’[63]
Responsibility for the attack can be
attributed directly to the top general in the junta - Senior-General Than Shwe, who is also the chairman of the USDA.[64] Senior-General Than Shwe has held the positions of prime minister, head of state, SPDC chairman, minister of defence and supreme commander, since 1992. He recently
ceded the position of prime minister to another member of the SPDC, General Khin Nyunt.[65]
Despite the outcry and condemnation by the international
community of the military regime’s treatment of Daw Aung San Suu Kyi, her
colleagues and supporters, the regime has refused to release, grant access or
confirm where she is being held. The Special Envoy of the Secretary-General for
Daw Aung
San Suu Kyi is being detained under section 10(a) of
In a historic departure from past practice, the Association
of South-East Asian Nations (ASEAN) departed from its strict principle of
non-interference in the internal affairs of Member States during the 36th
ASEAN Foreign Ministers meeting and the 10th ASEAN Regional Forum meeting in
The disruption of a promised peaceful negotiated transition
to democracy by the military regime in
Since independence in 1948, the regime’s troops have battled
a variety of ethnic insurgencies. Ethnic insurgent groups have sought to gain
greater autonomy or, in some cases, independence from the ethnic
Burman-dominated State. Since 1989, 17 groups have concluded cease-fire
agreements with the regime. Under the agreements, the groups have retained
their own armed forces and performed some administrative functions within
specified territories inhabited chiefly by members of their ethnic groups.
However, a few groups remain in active revolt – especially in Shan, Karen and
The Burmese army commits a wide range of human rights
violations in the context of its counter-insurgency activities in the ethnic
areas. There is a strong correlation between militarization, human
rights abuses and lack of adherence to humanitarian law in
Government displacement programs have taken place at least
since the late 1960s. Known as the ‘Four Cuts’ policy to cut links between civilians
and armed groups, supplies of food, funds, recruits and intelligence to
opposition forces are cut thereby reducing the impact of armed resistance
groups. Villages and food supplies are burnt in areas where resistance forces
are active, and civilians are forcibly relocated into
Since 1996, over 2,500 villages are known to have been
relocated or burnt down in the States and Divisions adjacent to the Thai border
(Shan, Karen, Karenni and
Displaced persons hiding in the jungle and in relocation sites lack basic necessities such as food, appropriate shelter, medicine, access to basic health services, education and security. Rates of malnutrition, infant mortality and deaths from preventable diseases such as malaria, respiratory infections and diarrheal diseases are high.[75] The military launches regular patrols, aimed at seeking out internally displaced persons, destroying their temporary shelters and rice supplies and subjecting them to further serious human rights abuses.[76]
Forced relocations
have generated large refugee flows to neighboring countries or to parts of the
country not controlled by the regime. An
estimated 400,000 Burmese asylum seekers and refugees are currently living in
neighboring countries (
Another transboundary consequence
of
The forced use of citizens as porters by the Burmese army - with attendant mistreatment, illness, and sometimes death - remains a common practice.
In 2000 the International Labour Organisation (the ILO) determined that the regime had not
taken effective action to deal with the "widespread and systematic"
use of forced labor in the country and, for the first time in its history,
called on all ILO members to review their relations with the regime and to take
appropriate measures to ensure that the regime would not be able to take
advantage of such relations to perpetuate or extend the system of forced labor.
In February 2002 an ILO team visited the country and an agreement was reached
to establish a permanent ILO office in
Human rights groups and the ILO continue to receive
allegations of forced labor from around the country, including
The ICFTU reported that women, children (including orphans and street children), and elderly persons were required to perform forced labor; that porters often were sent into dangerous military situations, rarely received medical treatment, and almost never were compensated; that forced laborers frequently were beaten; and that some women performing forced labor were raped or otherwise abused sexually by soldiers. There were no accurate estimates of the number of citizens forced to provide labor each year but the practice was common. The regime has taken some limited measures toward eliminating the practice; however, the measures did not appear to have reduced significantly the use of forced labor, especially by the military.[83]
Following a full-day
debate on children and armed conflict on 14 January 2003, the Council
decided to broaden its scrutiny of parties to armed conflict that recruit or use children as soldiers named
not just in the annex to the Secretary-General’s report[87]
to the Council pursuant to resolution 1379 (2001) of 20 November 2001, but also
to the other parties named within his report, which included Burma. The Council requested the Secretary-General to
report by
Women and girls from ethnic groups remain highly vulnerable
to gross human rights violations in
The regime denied the report and ordered three internal
reviews. In August 2002 the junta claimed that no soldiers were involved in the
rapes. In October 2002 the regime stated it continued to investigate the
allegations and had found evidence of five cases of rape similar to those
described in the SHRF/SWAN report. The regime stated it provided copies of its
report on the investigations to the international community and to the United
Nations Special Rapporteur, Paulo Sergio Pinheiro. However, according to Pinheiro,
the investigations were undertaken by military and other regime personnel with
no special skills or experience in investigating human rights allegations. The
investigations reportedly consisted of prearranged, large, collective, and
public meetings with local officials, organized by military personnel. There
has been continued international pressure on the regime to allow an independent
assessment of the allegations and to take appropriate actions to prevent rape
and sexual abuses by the military.[92]
Reports continue to be received by human rights organisations
of rape and other forms of sexual abuse perpetrated against women and girls by
soldiers in the Burmese army.[93]
In a letter dated 30 June 2001, leaked to the press in early
August, all nine United Nations agency representatives in Rangoon collectively
called on their respective headquarters and the international community for a
‘dramatic overhaul of the budget allocations’ for Burma because the country is
‘on the brink of a humanitarian crisis.’[95]
In a letter to the United Nations Secretary-General in 1992, UNICEF described
the situation facing the children of
The discussion below will outline the current humanitarian situation in Burma.
Four decades of military rule and mismanagement have
resulted in widespread poverty, poor health care, and low educational
standards.
The rates of infant mortality and malnutrition among
children are very high, comparing unfavorably with its neighbors. In each of
these areas, the trend within
The maternal mortality ratio in the country is high, with estimates ranging between 230 and 580 per 100,000 live births. Contraception is largely unavailable and it is estimated that the consequences of unsafe abortion account for around 50 per cent of maternal deaths.[104]
The border areas score lower than the national average on
most social indicators, with
Official HIV surveillance data in
Included among the major direct human factors contributing to this incidence are: injecting drug use (around 60% in 2000), direct and indirect commercial sex (38% in 2000), and male and female STI infections.[112] Overall, HIV levels in blood donors have been rising slowly but steadily over the past decade.
The known impact of HIV/AIDS is most severe along the north,
Eastern and Southern border areas of
An increasingly high number of young girls are being
trafficked to
Specific challenges to effective HIV/AIDS control and prevention in Burma include: risk factors associated with mobile and transient populations; limited condom use and availability (condoms were outlawed until 1992 and usage remains very low due); limited access to high-risk and at-risk populations, the inadequate involvement of people living with HIV/AIDS; inadequate behavioral research; limited supportive laboratory capacities; and limited resources to support blood safety programs.[114] Only recently has the regime publicly acknowledged concern about HIV/AIDS and publicly named the epidemic as one of the top three priority public health issues, along with malaria and TB.[115]
In the absence of any significant bilateral and multilateral
donors, the United Nations system in
Several international NGOs have been subcontracted by the United Nations or have their own programs on HIV/AIDS prevention and care.[116] All of the United Nations co-sponsors have funded and partnered with at least one of these NGOs for HIV projects. Though international NGOs are reported to be generally effective, their geographical and population reach is very limited.[117]
Low
educational attainment is a serious social, economic and political problem.
Only three out of four children enter primary school, and of those only two out
of five complete the full five years. In other words, only 30% of Burmese
children get proper primary schooling, let alone secondary and tertiary
education.[119]
According to a study conducted by
UNICEF and the regime, the single greatest obstacle to school attendance in
Access to primary education is highly politicized. In many townships, NLD members are prohibited from participating in Parent Teacher Associations. Therefore, aid projects implemented through Parent and Teacher Associations invariably exclude on the basis of extraneous political considerations – the children of families the regime considers to be supporters of the democracy movement.
In addition to dropping out of school for financial reasons, thousands of children are forced to drop out, or interrupt, their education for reasons associated with conflict due to: lack of an educational infrastructure; few teachers; security concerns; constant transience due to forced relocation; and ‘Burmanization’ policies that force the closure of non-Burman schools in ethnic areas. Other factors include: forced labor requirements; burning of villages by the military and subsequent free-fire zones; extra-judicial killing or arbitrary arrest of parents; and the general disruption of village life by military authorities who view all civilian activities as subordinate to military and state interests. [122]
Reports
from
While
The Burmese army continues to be directly responsible for
the most severe violations of the right to food. Violations of the right to
food in
Landmines
Landmines are now believed to affect 9 out of 14 of the
states or divisions of
Although landmine casualties appear to be increasing, especially during the last five to six years, the total number of landmine casualties in Burma remains unknown as information is limited.[127] There is currently no centralized agency collecting statistics on landmine incidents or survivors within Burma.
“The problems of
Vital indicators – health, education, development status and
the human rights situation – have all deteriorated under the successive
military regimes that have ruled
There is no evidence of sufficient political will within the regime to address the underlying causes of the crisis. The causes underlying the crisis situation are well-known and well documented. This paper has already highlighted a few of the major causes – the on-going conflict which has resulted in violence against and large-scale displacement and relocation of civilians, flows of refugees and gross human rights abuses and violations of international humanitarian law. One of the other major causes which has not yet been discussed is the military regime’s economic mismanagement.
The Asian Development Bank (ADB) stated in a report on the
Burmese economy in November 2001 that the country's economy is on the verge of
collapse, as the military government struggles to provide basic services. It
reveals a country that has suffered from massive economic mismanagement,
instability and stagnation under decades of military rule. The report argues
that
The ADB’s Asian Development
Outlook 2002 report criticized the SPDC for delaying reforms and pursuing
haphazard economic policies. The report states: ‘There are no clear prospects
for the introduction of necessary widespread economic reforms by the government
of
Among the
military regime’s policy mistakes is its decision to dedicate scarce resources
to military acquisitions, rather than to providing essential services to the
people of
As the ADB has stated in previous reports,
An analysis of the Security Council’s recent practice
illustrates that the severe and widespread suffering of a civilian population
in a situation of armed conflict can give rise to a threat to international
peace and security. As illustrated above, the civilian population in the ethnic
areas in
Recent events signify that the fragile political progress
witnessed last year has stalled and the regime has once again reneged on its
promise to negotiate a peaceful transition to parliamentary democracy. The
situation is at an impasse. Either the country will implode, which could result
in a blood bath, or will be subject to further repression (if that is
possible). The people of
If the Council cannot or does not put Burma on its agenda for action, then another possible course is for the United Nations Secretary-General Kofi Annan to utilize his authority under Article 99 of the Charter to ‘bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security’. This course of action will be discussed in the following section.
Article 99 of the United Nations Charter empowers the Secretary-General to bring to the attention of the Security Council any matter which in his or her opinion may threaten the maintenance of international peace and security. Commentators have noted that the Secretary-General has formidable but much underutilized authority under Article 99.[134] In practice, Article 99 has been invoked in respect of matters which in the opinion of the Secretary-General constituted a direct or imminent threat to international peace and security. That having been said, successive Secretaries-General have rarely invoked Article 99 expressly or by implication.[135] However, the Secretary-General has been encouraged by Member States to utilize the powers conferred upon him under Article 99. If the Security Council fails to act in the case of Burma, then the Secretary-General should consider using Article 99 to bring to the Council’s attention the situation in Burma – Daw Aung San Suu Kyi, other senior officials and members of the NLD, and the other approximately 1,300 political prisoners,[136] must be released and the process of national reconciliation and transition to democracy resumed.
On 29 and
“[i]ncluding sending fact-finding missions to conflict regions, holding more open debates on specific issues and continuing to put Article 99 of the Charter into practice by encouraging the Secretary-General to play his due role. All these commendable practices have, in one way or another, enriched the Council’s experience in handling issues bearing on international peace and security and should be affirmed”.[137]
“there should be greater recourse to the use of preventive diplomacy and the good offices of the Secretary-General…The Secretary-General is well placed to bring to the attention of the Council early evidence of threats to international peace and security, genocide and other manifestations of systematic and widespread human rights violations and other developments affecting international peace and security for its consideration and for appropriate action.
“This particular role of the Secretary-General in providing information to the Council is in conformity with the provisions of Article 99 of the Charter.”[138]
The
“to make liberal use of his authority under that Article [99], including when the matter he wishes to bring to the Council’s attention has not yet reached its cross-border potential”.[139]
On
“The Security Council emphasizes the important role of the Secretary-General in the prevention of armed conflicts. The Council expresses its readiness to consider appropriate preventive action in response to the matters brought to its attention by States or by the Secretary-General and which it deems likely to threaten international peace and security. It invites the Secretary-General to present to the members of the Council periodic reports on such disputes, including, as appropriate, early warnings and proposals for preventive measures. In this regard the Council encourages the Secretary-General to improve further his capacity to identify potential threats to international peace and security and invites him to indicate any requirements to fulfil these capacities, including the development of the Secretariat’s expertise and resources”.
Secretary-General Kofi Annan has made one explicit reference to Article 99 in a recommendation to the Security Council in his 1999 report on the protection of civilians in armed conflict. The Secretary-General recommended, in his section on conflict prevention, that the Council
“13. …strengthen the
relevance of Article 99 of the Charter by taking concrete action in response to
threats against peace and security as these are identified by the Secretariat”.[144]
When the Security Council determines there is a ‘threat to
the peace, breach of the peace, or act of aggression’ within the meaning of
Article 39, the powers conferred to the Security Council under Chapter VII of
the Charter are extremely far-reaching and subject to few express limitations.
Such action could consist of making recommendations or ordering provisional
measures (Article 40), or of such measures as embargoes, sanctions and the
severance of diplomatic relations (Article 41), or it may resort to or permit
the use of military force (Article 42). Measures taken under these articles are
binding on Member States if the Security Council so decides.[145]
For the purposes of this paper, the measures taken under Article 41 will be
discussed as military force will only be used when all other avenues have been
exhausted. It is therefore premature in
Article 41 provides the legal basis for all non-military enforcement measures:
“The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations”.
The list of measures included in Article 41 is illustrative and does not preclude other measures that the Security Council may wish to decide upon short of committing the use of armed force. As sanctions measures may run counter to domestic legislation in Member States, the primacy of States’ obligations under the Charter is made clear in Article 103.[146] In other words, these measures override other treaty obligations.
The first part of this section will discuss coercive
measures generally – the evolution of the Security Council’s practice under the
article, the concern over effectiveness and the humanitarian consequences which
has led to ‘targeted’ sanctions, and features of sanctions regimes. The second
part of the paper will develop a model targeted sanctions regime for
Since the end of the Cold War, enforcement action under
Article 41 has become a common instrument of peace maintenance. It is used as
an action ‘between words and wars’.[147]
Starting with the Iraqi invasion of
While this approach had some success, the unintended side-effects on the civilian population became increasingly evident.[148] Sanctions produced unintended humanitarian, social and economic consequences for the civilian population of the targeted country. The toll exacted upon the civilian population by such sanctions tended to be greatly disproportionate to the likely impact of the sanctions on the behaviour of the principal players. Concerns about the appropriateness and effectiveness of comprehensive economic sanctions in general were most widely and vocally expressed in response to the disastrous humanitarian situation of the Iraqi people (arguably aggravated by the Iraqi government). This situation led the United Nations Secretary-General to call sanctions a ‘blunt instrument’.[149]
The international community was clearly unwilling to tolerate the unintended negative effects of comprehensive economic sanctions. Since the mid-1990s economic embargoes were used much more cautiously and in a more limited way, and attempts were made to develop ‘targeted’, or ‘smart’ sanctions. In 1999 the Security Council declared that in the area of sanctions, special attention should be given to their effectiveness ‘while avoiding negative humanitarian consequences as much as possible’.[150] Although easier said than done, it provides for a general weighing of the interest in peace maintenance and the humanitarian consequences, and thus for a general proportionality test. This has led to the adoption of more ‘targeted’ instead of comprehensive sanctions, and of improved procedures and time-frames for their termination.[151] Simma notes that recent resolutions also include an explicit reference to mechanisms for the review of the humanitarian impact of measures under Article 41, and they pay specific attention to the access of humanitarian organisations to the population of the target State.[152]
The purpose of targeted sanctions is to modify the behaviour of specific actors which have been determined by the Security Council to threaten international peace and security. The key features of targeted sanctions are their focus on:
The wording in Article 41 leaves open the range of possible
measures that can be taken against an offending
In the military area:[154]
In the economic area:
In the diplomatic area:
The Security Council has established a Sanctions Committee
for each sanctions regime (except in the case of
Simma notes that ‘implementation
of measures under Art. 41 has proven to be generally unsatisfactory…[as] their
actual enforcement depended upon the will and capabilities of the member States
concerned. Centralized mechanisms were mostly weak, but began to be
strengthened by the end of the 1990s’.[166]
The Security Council took several initiatives in the mid-1990s to address
implementation concerns. It has encouraged on-site visits, established specific
bodies such as expert panels for advice and inquiry, and in several instances
has charged the Secretary-General or subsidiary organs to administer its
measures instead of leaving the implementation to member States.[167]
The Security Council established an informal Working Group on General Issues on
Sanctions to develop general recommendations on how to improve the
effectiveness of United Nations sanctions. This was in response to a note by the President of
Existing Sanctions Against the Burmese Regime
Before outlining a
‘model’ sanctions regime for
Before the 30 May 2003 incident, United States (U.S.)
sanctions included an arms embargo; a ban on all new U.S. investment in Burma
since 1997;[171] the
suspension of all bilateral aid, including
counter-narcotics assistance; the withdrawal of Generalized System of
Preferences (GSP) privileges; the denial of Overseas Private Investment
Corporation (OPIC) and EXIMBANK programs; visa restrictions on Burma’s
senior leaders; and a vote against any loan or other utilization of funds to or
for Burma by international financial institutions in which the U.S. has a major
interest. The
Following the
According to President Bush's executive order, such steps
are necessary due to the military junta's ‘continued repression of the
democratic opposition in
The import ban will continue until the President determines
and certifies to Congress that the SPDC has made ‘substantial and measurable
progress to end violations of internationally recognized human rights including
rape’.[175] The
bill also requires that the Secretary of State consult with the ILO's Secretary General and relevant nongovernmental
organizations and report to the appropriate congressional committees that the
SPDC ‘no longer systematically violates workers rights, including the use of
forced and child labor, and conscription of child-soldiers.’ It also requires
the President to declare that the SPDC has made ‘measurable and substantial
progress toward implementing a democratic government.’ Benchmarks for lifting
the ban on Burmese products would include: ‘releasing all political prisoners;
allowing freedom of speech and the press; allowing freedom of association; and
permitting the peaceful exercise of religion.’ Finally the SPDC would have to
reach an agreement with the NLD and other democratic forces in that country,
including
The EU
Common Position on
In April 2000, the Council strengthened the Common Position, by (a) adding a ban on the export from the EU of any equipment that might be used for internal repression or terrorism, (b) publishing the list of persons affected by the visa ban, and (c) imposing a freeze on the funds held abroad by the persons named in the list.
On
The Common Position was strengthened when the EU found no
credible reasons for the regime not to agree on a definite timetable for the
return of democracy to the country and found that the positive steps taken so
far were insufficient to address the economic, humanitarian and political
problems in the country. However the EU decided to suspended the implementation
of the new expanded sanctions until on or before
After the
30th May incident and subsequent events, the EU decided on
The EU does not have a ban on investments and imports.
Any targeted sanctions regime implemented by the Security Council must target senior officials of the military regime and the State Peace and Development Council (SPDC) (and former members of the State Law and Order Restoration Council (SLORC)), officials of the Union Solidarity Development Association (USDA), the United Wa State Party, managers of state enterprises and other groups, entities or individuals linked to the economic or political activities of the SPDC associated with the military regime who formulate, implement or benefit from policies that are impeding Burma's transition to democracy.
In brief, the following model could be implemented.
In the military area:
In the economic area:
In the political/diplomatic area:
[1] Foreword in, Democracy and Deep-Rooted Conflict: Options for Negotiators, (Institute for Democracy and Electoral Assistance, 1998).
[2] See
e.g., Senate Leaders Demand UN Security Council ‘Take Up’
“Burma: A Time for Change”, Report of an Independent Task Force Sponsored by the Council on Foreign Relations, (June 18, 2003), p. 11, available online at: http://www.cfr.org/pdf/Burma_TF.pdf; ALTSEAN-Burma, “Briefing: Black Friday & The Crackdown on the NLD”, 24 June 03, available online at: http://www.ibiblio.org/obl/docs/BlkFriupdatejun24.doc; and the Joint Statement of the National Coalition Government of the Union of Burma and the National Council of the Union of Burma,
‘'The Political Intervention of the International Community is Critical’', 7 July 03.
[3] The military staged a bloody coup during the pro-democracy demonstrations in Sept. 1988 and established a new dictatorship under martial law called the ‘State Law and Order Restoration Council’ (SLORC). In Nov. 1997, the SLORC renamed itself the ‘State Peace and Development Council’ (SPDC) – the three most senior members of the SLORC retained their posts in the SPDC. The change was viewed largely as cosmetic.
[4]
Purportedly thousands of men armed with sticks, clubs and rocks were part of
the attack. The majority were members of the SPDC’s
‘civil’ organization, the Union Solidarity and Development Association (USDA).
Chairman of the USDA is the most powerful general in
[5] The
regime claims 4 were killed and 50 injured. The Assistance Association for
Political Prisoners,
[6]
[7] Copy of letter is with author.
[8] The
General Assembly has consistently called on the regime to honour
the results of the 1990 election in its annual resolution on the human rights
situation in
[9] See
Amnesty International Report 2003:
[10] “
[11]
[12]
[13] See http://www.un.org/Docs/sc/unsc_background.html for general background information about the Security Council.
[14] See the Report of the International Commission on Intervention and State Sovereignty, “The Responsibility to Protect”, December 2001, p.50 [hereinafter “The Responsibility to Protect”].
[15] See Bruno Simma, The Charter of the United Nations: A Commentary, (Vol. I), OUP, 2002, at p. 719.
[16] See Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law, (OUP, 2001), Chapter 4, p. 211.
[17] Simma, commentary on Article 39, op cit, p. 720.
[18] Ibid, p. 721.
[19] See for
example, the condemnation of the Israeli air raid on PLO targets in
[20] Simma, op cit, p. 722.
[21] Ibid, pp. 722-723.
[22] Chesterman, op cit, p. 212. See also Simma at p. 723, “it seems now widely accepted that extreme violence within a State can give rise to Chapter VII enforcement action”.
[23] Op cit, p. 215.
[24]
S/PV.2982 (1991) 6
[25] See Chesterman, op cit, pp. 215-219 for detailed discussion of the Iraqi treatment of the Kurds in 1991.
[26] Op cit, p. 723.
[27]
Confirmed in SC Res. 724,
[28] Op cit, p. 221.
[29] SC Res.
834 (1993) of I June 1993 and SC Res. 851 (1993) of
[30] SC Res. 864 (1993) B, preamble.
[31] Chesterman, op cit, pp. 226-228.
[32] SC Res.
733,
[33] See SC
Res. 788 of
[34] SC Res.
918 of
[35] SC Res.
1072 of
[36] SC Res.
1078 of
[37] SC Res.
1101 of
[38] SC Res.
1125 of
[39] SC Res.
1132 of
[40] SC Res.
1264 of
[41] Simma, op cit, pp. 723-724.
[42] “The Responsibility to Protect”, op cit, p. 16.
[43] SC Res.
794 (1992) of
[44] SC Res.
929 (1994) of
[45] SC Res.
929 (1994), preamble and operative paras. 2 and 3.
See Chesterman, op cit, pp. 237-243 for detailed
analysis of the Council’s handling of the genocide in
[46] See Chesterman, ibid, pp. 243-244.
[47] See ibid, pp. 244-246.
[48] Simma, op cit, p. 725.
[49] SC Res.
1296 (2000) of
[50] SC Res.
808 (1993) of
[51] SC Res.
1264 (1999) of
[52] Chesterman, op cit, pp. 249-250.
[53] SC Res.
841 (1993) of
[54] SC Res.
1132 (1997) of
[55] Simma, op cit, p. 725.
[56] This section is a summary of Chesterman, op cit, pp. 251-256.
[57] SC Res.
841 (1993) of
[58] S/1994/905, Annex. This was regarded as insufficient, however, and so a letter was sent stating the ‘agreement’ of the Aristide Government with the draft resolution: S/1994/910 (1994).
[59] Ibid, p. 262.
[60] The
General Assembly has consistently called on the regime to honour
the results of the 1990 election in its annual resolution on the human rights
situation in
[61] The
regime claims 4 were killed and 50 injured. The Assistance Association for
Political Prisoners,
[62]
[63] U.S.
Reports Signs of Deliberate Attack on Burmese Activist's Motorcade (State
Department news release),
[64] The
military regime and its sponsored civil organization, the Union Solidarity and
Development Association (USDA), steadily increased its harassment of the NLD on
Daw Suu Kyi’s tours throughout the country and
threatened civilians not to support her or the NLD. The patron of the USDA is
Senior-General Than Shwe. In the weeks prior to the
attack, the regime increased riot and weapons training and increased
surveillance on NLD members. On May 24, the War Office in
[65]
[66] UN Special Envoy Razali Ismail met with Daw Aung San Suu Kyi for half an hour at a military location under close military supervision on the last day of his visit (10 June). A representatives of the ICRC was granted access to Daw Aung San Suu Kyi on 29 July.
[67] SG/SM/8747 (10 June 2003) Secretary-General welcomes report from Myanmar Envoy that Daw Aung San Suu Kyi is uninjured; urges her release. See also UN PR (31 May 2003) Annan urges dialogue in Myanmar as envoy prepares to visit Yangon; SG/SM/8733 (2 June 2003) Secretary-General ‘worried’ by continued detention of National League for Democracy leaders in Myanmar; SG/SM/8729 (2 June 2003) Secretary-General concerned about situation in Myanmar, renews call for dialogue between Government and the National League for Democracy; SG/SM/8738 (6 June 2003) Secretary-General’s Special Envoy arrives in Myanmar; SG/SM/ 8760 (23 June 2003) Secretary-General gravely concerned at report concerning detention of Daw Aung San Suu Kyi in Myanmar; and SG/SM/8783 (16 July 2003) Secretary-General emphasizes need for immediate release of Daw Aung San Suu Kyi in meeting with Myanmar’s deputy Foreign Minister.
[68]
[69]
[70]
According to the report of the International Commission on Intervention and
State Sovereignty, “The Responsibility to Protect”, different manifestations of
“ethnic cleansing” include the systematic killing of members of a particular
group in order to diminish or eliminate their presence in a particular area;
the systematic physical removal of members of a particular group from a
particular geographical area; acts of terror designed to force people to flee;
and the systematic rape for political purposes of women of a particular group
(either as another form of terrorism, or as a means of changing the ethnic
composition of that group), (December 2001, p. 33). These manifestations are
present in
[71] See Shan Women’s Action Network & Shan Human Rights Foundation report, “Licence to Rape”, June 2002 and Refugees International, “No Safe Place: Burma’s Army and the Rape of Ethnic Women”, April 2003.
[72] See
Burmese Border Consortium, “Internally Displaced People and Relocation Sites in
Eastern
[73] UN General Assembly, 22 August 2000, Situation of Human Rights in Myanmar (UN symbol: A/55/359); U.S. Department of State, Burma Country Report on Human Rights Practices, March 31, 2003, section 2(d).
[74] See
Burmese Border Consortium, “Internally Displaced People and Relocation Sites in
Eastern
[75] Burma
UN Service Office, “Humanitarian Assistance to
[76] Ibid, p. 15.
[77]
[78] Released in March 2002, available online at: www.state.gov/g/inl/rls/nrcrpt/2001/rpt/8483.htm.
[79] Since
May 2003, 2,500 people have been killed in
[80] See for example, ICFTU, “Burma – Forced Labour: ICFTU submission to ILO Committee of Experts, November 2001” (29 November 2001); EarthRights International, “We are not Free to Work for Ourselves: Forced Labour and Other Human Rights Abuses in Burma”, June 2002; Human Rights Documentation Unit of the NCGUB, “Burma Human Rights Yearbook, 2001-2002: Forced Labour”, September 2002; EarthRights International, “Forced Labour and the Shwe Gin River in Burma”, 13 September 2002; EarthRights International, “Entrenched: An Investigative Report on the Systematic Use of Forced Labour by the Burmese Army in a Rural Area”, June 2003. EarthRights International reports can be found at: www.earthrights.org/pubs.
[81] ICFTU
Annual Survey of Violations of Trade Union Rights 2002,
[82] “
[83] ICFTU
Annual Survey of Violations of Trade Union Rights 2002,
[84] The report is available online at: http://hrw.org/reports/2002/burma/.
[85] “Adult
Wars, Child Soldiers: Voices of children involved in armed conflict in the
[86] “Child Soldiers 1379 Report”, available online at: http://www.child-soldiers.org/.
[87]
S/2002/1299 –
[88] See
Human Rights Watch press release, “U.N. Spotlights Child Soldiers”, (
[89] The report can be accessed at: http://www.ibiblio.org/obl/docs/License_to_rape.pdf.
[90] Of the 173 documented incidents, in only one case was a perpetrator punished by his commanding officer. More commonly, the complainants were fined, detained or tortured by the military. These crimes have been committed with impunity.
[91] “
[92] See
General Assembly resolution 57/231 of
[93] See for
example, ALTSEAN-Burma, “Women’s Report Card on
[94] This
section is extracted from the Burma UN Service Office’s report, “Humanitarian
Assistance to
[95] Copy of letter is with author.
[96] See,
International Crisis Group humanitarian assistance report at page 9 quoting
World Bank,
[97] Available online at: http://www.undp.org/hdr2003/indicator/cty_f_MMR.html.
[98] ICG
humanitarian assistance report, at p. 10, citing UN Country Paper.
[99] ADB Nov 2001 report, at p. 6.
[100] See ICG HIV/AIDS report, at p. 8.
[101] See, ‘Report on the situation of human rights in Myanmar, prepared by Mr Paulo Sergio Pinheiro, Special Rapporteur of the Commission on Human Rights, in accordance with Commission resolution 2001/15’, UN Doc. E/CN.4/2002/45 [hereinafter ‘Pinheiro’s CHR 2002 report’], at para. 94.
[102] ICG humanitarian assistance report, at p. 10 quoting UN Country Paper, January 2002.
[103]
See UNICEF, Children and Women in
[104] See UNFPA 2001 report, para. 5 and UNAIDS/WHO 2000 (revised) report, p. 3.
[105] ADB Nov 2001 report, at p. 6.
[106] ICG humanitarian assistance report, at p. 11.
[107] See ICG HIV/AIDS report, overview.
[108] UNAIDS, Report on Global HIV/AIDS Epidemic, June 2000.
[109]
Dr C Beyrer, ‘War in the Blood: Sex, Politics and
AIDS in
[110] ICG HIV/AIDS report, at p. 2 and UNAIDS/WHO 2000 (revised) report, p. 3.
[111]
UNAIDS, “United Nations Response to HIV/AIDS in
[112] UNAIDS Joint Plan of Action, id, at 6 and ICG HIV/AIDS report, at 2.
[113]
See U.S. State Department, ‘Victims of Trafficking and Violence Protection Act
of 2000: Trafficking in Persons Report’, (Released by the Office to Monitor and
Combat Trafficking in Persons) June 5, 2002, available at: http://www.state.gov/g/tip/rls/tiprpt/2002/.
Also see U.S. Department of State, Burma Country Report on Human Rights
Practices,
[114] UNAIDS Joint Plan of Action, at 6.
[115] USAID HIV/AIDS 2002 report, at page 6.
[116] The UN agencies are: UNDP, UNFPA, UNICEF, WHO, UNDCP. All UN agencies are coordinated through UNAIDS. The INGOs are: the ICRC; World Vision; CARE; Save the Children (UK); Population Service International; Medecins du Monde; Medecins sans Frontieres (Holland); Marie Stopes International; World Concern, and; the Population Council.
[117] See ICG HIV/AIDS report, at p. 6.
[118] See U.S State Department’s 2002 human rights report, section on children.
[119] ICG humanitarian assistance report, at p. 9.
[120]
UNICEF and Myanmar Department of Labor, Report on Working Children and Women in
[121]
UN Working Group, Human Development in
[122] Human Rights Documentation Unit of the NCGUB, Human Rights Yearbook Burma 2000-2001, 326-7.
[123] Ibid, at 328.
[124] ICG humanitarian assistance report, quoting UN/Myanmar, Food Security in Myanmar: A Proposal to Deal with Natural Shocks, January 2000, internal report, and the People’s Tribunal on Food Scarcity and Militarization in Burma, ‘Voice of the Hungry Nation’, (found at: www.hrschool.org/tribunal/index.htm), at p. 10.
[125]
See Landmine Monitor 2002 Report (
[126] See Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), Geneva, 2 July 1998, at paras. 300, 319, 327-9, 300 found at: http://www.ilo.org/public/english/standards/relm/gb/docs/gb273/myanma3a.htm#(1)%20Portering. See also Landmine Monitor reports 1999-200.
[127]
Landmine Monitor 2002 report, quoting Handicap International, “Mine Casualties Survey Report;
[128]
Daw Aung San Suu Kyi, Foreword to the Working Paper prepared for the Workshop
on Humanitarian Aid to
[129]
See Asian Development Bank report found at http://aric.adb.org/aem/myanmar.pdf
and ‘
[131]
Roger Mitton, ‘The Arms Deals:
[132]
[133]
See Asian Development Bank 2001 report found at http://aric.adb.org/aem/myanmar.pdf
and ‘
[134] Report of the International Commission on Intervention and State Sovereignty, “The Responsibility to Protect”, December 2001, p. 35.
[135]
These rare occasions include the Korean operation in 1950, the
[136]
See Amnesty International Report 2003:
[137] S/PV.4072, p. 14.
[138] Ibid, p. 20.
[139] Ibid, p. 29.
[140] Ibid, p. 40.
[141] Ibid, p. 41.
[142] S/PV.4072 (Resumption 1), p. 6.
[143] S/PRST/1999/34.
[144]
S/1999/957 of
[145] Simma, op cit, p. 705.
[146]
Department of Peace and Conflict Research, Making Sanctions Effective:
Guidelines for the Implementation of UN Policy Option,
[147] Ibid, p. iii.
[148] Simma, op cit, p. 738.
[149]
See Supplement to and Agenda for Peace, UN Doc. A/50/60-S/1995/1,
[150]
UN Doc. S/PRST/1999/34,
[151] See “Making Targeted Sanctions Effective” and papers covering the debate on smart sanctions available at www.smartsanctions.ch.
[152] Simma, op cit, p. 746, referring to SC res. 1302 of
[153] Making Sanctions Effective, p. 9, 91 & 97.
[154] This section has been taken from “The Responsibility to Protect”, p. 30-31, and Simma, op cit, p. 741.
[155] Simma, op cit, p. 741. Arms embargoes were adopted in the
cases of
[156] “The Responsibility to Protect”, op cit, p. 30.
[157]
See SC res. 841 of
[158]
For prohibitions on the import of oil – Southern Rhodesian and the Haitian case
– see SC res. 232 (1966) of
[159] For export prohibitions on diamonds, see the cases of Angola, Sierra Leone and Liberia, SC Res. 1173 of 12 June 1998; SC Res. 1306 of 5 Jul. 2000; SC Res. 1343 of 7 Mar. 2001.
[160] See SC Res. 748 of 31 Mar. 1992, on Libya; SC Res. 917 of 6 May 1994, on Haiti; SC Res. 1127 of 28 Aug. 1997, on Angola; SC Res. 1333 of 19 Dec. 2000, on Afghanistan.
[161]
See SC Res. 1267 of
[162] See SC Res. 748 of 31 Mar. 1992, on Libya; SC Res. 757 of 15 May 1992, on Yugoslavia; SC Res. 1054 of 26 Apr. 1996, on Sudan; SC Res. 1333 of 19 Dec. 2000, on Afghanistan.
[163] See SC Res. 917 of 6 May 1994, on Haiti; SC Res. 1132 of 8 Oct. 1997 and 1171 of 5 June 1998, on Sierra Leone; SC Res. 1343 of 7 Mar. 2001, on Liberia.
[164] Sanctions often severely affects third States, particularly neighbouring States, when trade relations with the targeted State are restricted.
[165] See Simma, op cit, pps. 548-550, for table of the Sanctions Committees and general overview, and p. 748.
[166] Ibid, p. 746.
[167] For example, with the UN Compensation Commission for Iraq, with the international criminal tribunals for the former Yugoslavia and Rwanda and with the UN administrations in Eastern Slovakia, Kosovo, and East Timor.
[168]
S/1999/92 of
[169]
S/2000/319 of
[171]
Since May 1997, the U.S. Government has prohibited new investment by
[172] Bureau of East Asian and Pacific Affairs , “Conditions in Burma and U.S. Policy Toward Burma for the Period September 28, 2002 – March 27, 2003”, April 11, 2003, available online at http://www.state.gov/p/eap/rls/rpt/burma/19554.htm.
[173]
80% of garments made in
[174]
See Department of State, ‘U.S. Imposes Financial Services Freeze on Burmese
Regime’,
[175]
Department of State, ‘Bush Applauds Passage of Burmese Freedom and Democracy
Act’,
[176] Ibid.
[177] Such as the start of a substantive dialogue with Daw Aung San Suu Kyi and the NLD, the release of political prisoners, and a reduction of violence and human rights violations - particularly in ethnic minority areas.
[178]
See EU’s relations with Myanmar/Burma available
online at: http://europa.eu.int/comm/external_relations/myanmar/intro/
and
[179]
See Burma UN Service Office’s report, “Humanitarian Assistance to