By Daniel I. Wu, Intern, CSIS Southeast Asia Program

Burma has long been regarded as the recalcitrant eyesore of Southeast Asia, a fast-growing region attracting increasing international attention and investment. Burma is a member of ASEAN and its actions indisputably reflect on the whole of the dynamic regional group. In that context, Burma’s human rights abuses preclude easy solutions. The military junta’s seemingly lack of concern towards its people and unwillingness to cooperate with concerned countries seeking to provide assistance has frustrated policymakers and observers for decades.

Forced labor, religious persecution and systematic rape by Burmese army officers are widespread against the Rohingya, according to the Irish Centre for Human Rights (2010) “Crimes against Humanity in Western Burma” report. While on July 23, 2010, the Democratic Voice of Burma reported that more than 500 people were displaced in eastern Karen state’s Hpapun township after their village came under artillery fire from Burmese army troops who also burnt down most of the houses in the village.

The pattern is unmistakable. Burma’s record suggests that government killings of other ethnic groups constitute at least crimes against humanity, if not genocide, as stated in Article 7 of the Rome Statute. These largely overlooked violations are unacceptable to humanity and Southeast Asia’s budding democracy.

Why ASEAN?

Despite Burma’s membership in the UN, the organization has failed to induce the precipitate democratization or ethnic reconciliation within the state. With 192 members including five with veto privileges, deadlock and discord has prevented any meaningful action against Burma. For example, during the 2007 Burmese pro-democracy protests, China and Russia vetoed a U.S.-backed resolution criticizing Burma’s deadly reaction to protesters. It is unrealistic to assume that great powers will share similar foreign policy goals and ideology, as demonstrated by strained Sino-U.S relations over the South China Sea dispute.

Chapter VIII of the UN charter, responses by regional actors, is an underutilized theme for crises response and management. As The Stanley Foundation (2008) wrote in “Actualizing the Responsibility to Protect,” there is a growing trend in Latin America, Africa, and Southeast Asia to deal with violent crises at the regional level first. Regionalism can be perceived as an alternative to globalism, a superior substitute to the principle of universality. According to Inis Claude (1971) in “Swords into Plowshares,” within a region, “adaptations of international or regional solutions can be intelligently carried out, and commitment by states to each other can be confined to manageable proportions and sanctioned by clear bonds of mutuality.”

Yet, Article 53 of Chapter VIII in the UN Charter states that “no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.” ASEAN, like all regional organizations, is only a supplement to the UN framework. However, the renewed commitment to build an Asian regional security framework reaffirmed at the Shangri-la Dialogue in Singapore on June 2010 represents a potential opportunity for the transfer of responsibility to ASEAN. While the U.S. and China maintain an active presence and increasing interest in the region, entrusting regional security to ASEAN will empower organization to take ownership of Southeast Asia’s shared future and assert its primacy as a regional protector.

Many often dismiss ASEAN’s leadership in resolving mass atrocity crimes in Burma due to the organization’s non-interference policy and resultant deplorable human rights record. However, ASEAN has engaged Burma behind the iron wall of sovereignty, with the most recent example being the establishment of the Tripartite Core Group. Created during Cyclone Nargis in 2008, the Group convinced the military junta to allow international humanitarian aid to enter the state. ASEAN’s geographical, political, cultural, and economic relations and engagement with Burma must no longer be overlooked. Furthermore, at the 43^rd ASEAN Ministerial Meeting in July 2010, Burma was given an “earful” from ASEAN foreign ministers, signaling the possibility of a break from ASEAN’s traditional protocol of non-interference.

ASEAN’s Iron Wall of Sovereignty

The fundamental notion of sovereignty defines a government’s absolute and indisputable power over its subjects in a specific territory. From the ASEAN perspective, forcible intervention in sovereign States, in light of the ASEAN Charter and Article 2(4) of the UN Charter, is a violation of international law that would result in grave and negative implications for regional peace and security. In contrast, the shadows of Cambodia, Rwanda, and Serbia gave rise to the notion of universal respect for human rights as a precondition for a stable national and international order. If ASEAN’s “iron wall” is impenetrable from the outside, a solution must then come from within. As John Worth (2004) succinctly postulates, “Commentaries that disregard State sovereignty as an eradicable hindrance to denationalization fail to recognize the possible benefits to be gained by simply redrawing the balance between sovereignty’s empowering and limiting aspects.”

As Thomas Hobbes wrote in the “Leviathan”, the sovereign is “one person, of whose acts a great multitude,… to the end he may use the strength of them all,…for their peace and common defense.” The modern state assumed explicit responsibilities to protect its populations in the Geneva Convention, the UN Charter, and in the UN Universal Declaration of Human Rights, as well as in the various conventions governing mass atrocities, such as the Genocide Convention.

In reality, sovereignty in the Westphalian standpoint has weakened from the increasing internationalization of human rights. Despite ASEAN’s norm of non-intervention, the post WWII trials of Nuremburg and Tokyo have demonstrated that perpetrators of mass atrocities cannot escape accountability behind the iron wall of sovereignty. As a result of changes in international justice and value of humanity, state sovereignty today is increasingly viewed from the point of view of responsibility. As Francis Deng (1995) said, “The transfer of responsibility is premised on the notion that a state that cannot protect the basic rights of its population has forfeited its sovereignty, and the international community has a duty to re-establish it.”

Additionally, many national boundaries in Southeast Asia do not coincide with ethnic, religious or cultural distribution, and consequently leads to a “spill-over” of conflict, such as refugees from the northern Southeast Asia escaping domestic repression. These new patterns of trans-border conflict mean that traditional “soft” diplomatic engagement may be inadequate where whole populations are threatened with violence by their governments.

No state, however powerful, has been able to shield its affairs completely from external influence, unless the North Korean syndrome plagues the world. Increased scrutiny over ASEAN states and enhanced regional authority is not an abandonment of sovereignty, but a celebration, revitalizing the obligations of the Hobbes’ social contract theory up to the regional level, lest the lives of ASEAN citizens degenerate to being “solitary, poor, nasty, brutish and short.”

While a state still enjoys sovereignty as the preemptive legal norm, globalization and international oversight by the global civil society has already delimited the boundaries of sovereignty. Whether through humanitarian aid or engaging relevant stakeholders in debate, the de facto coalitions of global and transnational NGOs and international organizations are playing an expanding role in shaping the political landscape of Southeast Asia. The traditional lines of state-to-state interaction have long been supplemented, even augmented, by the participation of non-state actors. To ignore the developing awareness for human rights of the growing educated population is to squander the potential grassroots support for greater regional cooperation and integration.

Sovereignty is not only the right from external interference; it is also the freedom to allow certain forms of interference. ASEAN’s historical respect for sovereignty can be upheld; redefining the principle not only prevents thorny disputes over ASEAN’s authority, but also paves way for greater collaboration of the protection of human lives.

The excerpt is part of a longer published piece in the Dialectics on ASEAN’s role in spearheading regional Responsibility to Protect.

Daniel I. Wu was a summer 2010 intern at the CSIS Southeast Asia Program. He graduates from Franklin and Marshall College in May 2011 with a B.A. in Economics and Government. The author can be reached at daniel.ic.wu@gmail.com.