Collins, L.

Kirabira, T.

Lee-Winter, F.

English

UEL Research Repository at University of East London

The Right to Live under ThreatFiza Lee-Winter, Laura Collins, TonnyKirabira 2021-04-08T09:00:35Just hours before Myanmar’s newly elected government sat in for their firstparliamentary session on 1st February, 2021, Daw Aung San Suu Kyi and otherNational League for Democracy (NLD) leaders were arrested and detained ina Tatmadaw-led coup d’état. Besides its military might, the Tatmadaw is also asignificant force politically, through its guaranteed 25 per cent share of the seats inMyanmar’s parliament, and economically, due to the “shadow economy” they controlthat “extends its tentacles into the country’s most profitable industries.”In this Bofax, we argue that the Tatmadaw’s actions have potentially irreparableramifications for the people of Myanmar and, particularly ethnic minorities includingthe Rohingyas. One only needs to look into Myanmar’s history under decades ofmilitary rule as proof of the Tatmadaw’s blatant disregard for human rights and asan indication of what may be to come. More specifically, we suggest that as longas the Tatmadaw remains in power, the people’s right to life and, given its intricatelink with other rights, including the right to health, the right to an adequate standardof living, and the right to just and favourable working conditions, among others, arethreatened.Myanmar’s Positive & Negative Legal ObligationsThe actions of the military have implications on Myanmar’s commitments underinternational human rights law—specifically the right to life—a non-derogableright under the ICCPR (see Art. 4(2)) which cannot be suspended even duringstates of emergency. Even though Myanmar is not a state party to the ICCPR,the right is enshrined in various other universal and regional human rights treatiesand recognized as international custom. Additionally, the right to life is universallyacknowledged as a fundamental human right because “the enjoyment of the right tolife is a necessary condition [for] the enjoyment of all other human rights.”The right to life is interpreted as creating both negative and positive obligationson the state. The government of Myanmar, therefore, is not only obligated torespect and protect this right, but also act affirmatively to fulfil it (see HRC GeneralComment No. 6: Article 6 (Right to Life). The former requires the state to refrainfrom conduct that leads to unlawful deprivation of lives e.g., killing of protestors.On the other hand, there are positive state obligations to implement measures toprotect the people from foreseeable threats from non-state actors like armed groups.Such protection is vital in Myanmar, due to the history of armed conflicts and staterepression.In Myanmar, ethnicity has an intrinsic bearing on the enjoyment of human rights.Myanmar’s ethnic minorities endure long-standing structural violence, wherebythe societal structures and systems within which they live, harm their ability to- 1 -meet fundamental needs, making them inherently vulnerable. The continuedcentrality of ethnicity in Myanmar politics and heightened ethno-nationalism has onlycompounded this reality. Beyond the violence against the Rohingya, the coup hasalready triggered fresh rebellion of Myanmar’s ethnic armed organisations (EAOs)in Kachin state and the borderlands. The Tatmadaw is unable to provide securityin much of the regions where ethnic armed groups operate; yet, the state haslegal obligations to the people in these territories. Similarly, the lack of democraticrepresentation of ethnic minorities exacerbates violence. Observers further notethat “ethnic peoples now view insurgency as the only effective means of achievingpolitical goals such as enhanced autonomy and equitable access to resources.”Beyond the Rohingya situation, the military has followed a hard-line stance on otherethnic groups, thus fuelling ethnic violence in Myanmar. There is thus a heightenedneed for the government to restore democratic rule.More specifically, the fundamental right to life illustrates the indivisibility andinterrelatedness of all human rights, in particular, the right to life (the right for ahuman being not to be deprived of its  life, unlawfully or arbitrarily, an area of civiland political rights) and the right to live (or preservation of life, the right of everyhuman being to have the appropriate means of subsistence and a decent standardof life, an area of economic, social, and cultural rights) (see F. Przetacznik, “TheRight to Life as a Basic Human Right.” 9 Revue des droits de l’homme/HumanRights Journal, 589, 603 (1976)). The UN Human Rights Committee (HRC) inGeneral Comment No. 36 interprets the right to life expansively,linking it to the notionof human dignity (Paras. 2–3, 6), evoking entitlement to certain standards of livingand access to services. As empirical studies point out, for example, the Rohingyaslink dignity with self-reliance in meeting their social and economic needs.The Indivisibility and Interrelatedness of Rights in the Burmese ContextBased on the normative interpretation under HRC General Comment No. 36, thereare other separate rights whose protective scope partly overlaps with the right tolife: In particular, the rights to work and to just and favourable conditions of work(ICESCR Art. 6 & 7), the right to an adequate standard of living (ICESCR Art. 11),and the right to health (Art. 12)—these are rights, which Myanmar has a duty touphold in order to protect life (in particular para. 26). As observed by the UN Officeat the High Commissioner for Human Rights (OHCHR), the right to life is particularlyvital in the protection of such fundamental human rights during periods of conflict.Therefore, the dignity dimension of the right to life can also be applied to protecteconomic, social and cultural rights.On ICESCR Art 6 & 7The Tatmadaw has violated the right to work guaranteed under Article 6 of theICESCR through the arbitrary imposition of a state of emergency alone. Similarly,the elements of just and favourable conditions of work (Art. 7) are dependent onthe existence of free movement of labour and absence of threats to their lives.Closely linked to this right, Myanmar’s membership of the International LabourOrganization (ILO) requires the respect for other related rights like freedom ofassembly. Immediate impacts on the ground, which have further exacerbated- 2 -Covid-19’s effects, have already pointed to violation of both—more than 60,000workers have become jobless due to the pandemic; and this number is only trendingupward with civil servants and other workers protesting and demanding democracybe restored. Simultaneously, the Tatmadaw has established the State AdministrationCouncil (SAC) which has “dictated key revisions to the country’s legal system thatcriminalize even peaceful protests, and enable violations of the right to privacy andarbitrary arrests and detention.”On ICESCR Art 11 The right to adequate standards of living is enshrined under Article 11 of theICESCR and interpreted to include aspects of health, family, food, clothing, housingand security (see para 1, Committee on Economic, Social and Cultural Rights(CESCR) General Comment 12). Under Tatmadaw rule, Myanmar remained isolatedand one of the poorest countries in the world. However, since its liberalization in2011, poverty rates fell sharply between 2005 and 2017; this progress is now underthreat. As asserted in General Comment No. 12, “the right to adequate food isindivisibly linked to the inherent dignity of the human person” (see para. 4). TheTatmadaw coup has already affected the supply chain as evidenced by escalatingfood and fuel prices. Whether the Tatmadaw’s actions have done so directly orindirectly, the effects are felt all the same, occurring as a result of this state actornot fulfilling its obligations—“violations of human rights lead to lower investment,which will in turn lead to lower rates of economic growth and thus to lower per capitaincome.” In essence, job and job opportunity losses and rising food prices adverselyimpact living standards.On ICESCR Art 12 The right to an adequate standard of living necessitates the enjoyment of theright to health (see CESCR General Comment No. 14, paras. 2–3). Additionally,“health” is not defined narrowly (paras. 8–11): “[It] takes into account both theindividual’s biological and socio-economic preconditions and a State’s availableresources…[and]…socially-related concerns as violence and armed conflict.” In lightof COVID-19, Article 12(2)(c) of the ICESCR provides an important guideline whichlinks the enjoyment of the highest attainable standard of health with “the prevention,treatment, and control of epidemic, endemic, occupational and other diseases.” Theright to access essential healthcare and drugs merits immediate attention. However,post-coup, nationwide civil obedience campaigns threaten this, further exacerbatingcoronavirus spread and fatalities.In sum, the Tatmadaw’s actions amount to a violation of political, as well aseconomic, social and cultural rights of the people. The rights discussed above,when interpreted through the lens of on-the-ground impacts, are corollary to theright to life. Just like the ongoing peace process, the democratisation process inMyanmar has been further imbued with serious challenges—the links betweengrowth and development, and respect for human rights are intricate and interwoven.Yet, for western countries, from the UK to the US, their immediate response tothe coup came in the form of sanctions. Whether targeted or not, sanctions mustbe viewed through a critical lens given the possibility of unintended effects. Given- 3 -Myanmar’s precarious context, targeted sanctions against high-ranking membersof the Tatmadaw would arguably only serve as a powerful rhetorical tool. Theinternational human rights regime exemplifies the relevant basic standards andobligations that need to be followed, something the Tatmadaw does not intend touphold, as elucidated by their actions. Bearing the hallmarks of Thailand’s 2014coup, the Tatmadaw could cling to power beyond the stipulated one-year stateof emergency, which will likely have devastating consequences for the people ofMyanmar, threatening the right to live with dignity. The “Bofaxe” series appears as part of a collaboration between the IFHV andVölkerrechtsblog.- 4 -

The Right to Live under Threat: On the Armed Forces (The Tatmadaw) Taking Power in Myanmar

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The Right to Live under Threat: On the Armed Forces (The Tatmadaw) Taking Power in Myanmar

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