Wuhan University

School of Law

Myanmar and Ratification of International Treaties

LAET YIN Win

Student ID: 2019271060022

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Introduction

International human rights treaties lay down obligations binding governments to act in

certain ways or to refrain from certain acts, in order to promote and protect human rights and

fundamental freedoms of individuals or groups. The ratification of these international treaties

and conventions is a crucial step for a country as it reflects the recognition of norms and morals

of the international community, respecting and promoting the human rights of its citizens.

Myanmar in International Law

Through Myanmar is a party to relatively few international treaties, nevertheless retains

certain obligations under Customary International Law (CIL), including the law on state

responsibility, as well as international humanitarian law and international criminal law.

Article 53 of the Vienna Convention on the Law of the Treaties states, peremptory norms

are “Rules of conduct that prohibit what has come to be seen as intolerable because of the

threat it presents to the survival of states and their peoples and the most basic human values.” 1

Treaty Obligation

Myanmar has ratified and accepted the obligations of a number of international treaties.

By ratifying a treaty, Myanmar is obligated under international law to comply with the

provisions of the treaty in good faith and cannot use domestic laws to justify a failure to comply

with treaty obligations.2

The most important treaty of Myanmar is a party of the UN Charter, which is considered

a “super- treaty” because Article 103 of the Charter mandated that any conflict between Charter

obligation and those under any other international agreement be resolved in favor of the

Charter. Other treaties include the Genocide Convention, the four Geneva Conventions, the

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the

1
United Nations, Vienna Convention on the Law of the Treaties between States and International Organizations or
between International Organizations, Article 53, March 12, 1986
2
Vienna Convention on the Law of Treaties, article 26, January 27, 1980
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Convention on the Rights of the Child (CRC) and the Treaty in the Non-Proliferation of Nuclear

Weapons (NPT).

Ratification

There are three categories concerning treaties in which states may be categorized:

(1) Treaties ratified

(2) Treaties signed but nor ratified

(3) Treaties not signed nor ratified

The Vienna Convention on the Law of Treaties, a treaty is define as “An international

agreement concluded between states in written form and governed by international law,

whether embodied in a single instrument or in two or more related instruments and whatever

its particular designation”.3

Ratification defines the international act whereby a state indicates its consent to be

bound to a treaty if the parties intended to show their consent by such an act. 4 In the case of

bilateral treaties, ratification is usually accomplished by exchanging the requisite instruments,

while in the case of multilateral treaties the usual procedure is for the depositary to collect the

ratifications of all states, keeping all parties informed of the situation. The institution of

ratification grants states the necessary time- frame to seek the required approval for the treaty

on the domestic level and to enact the necessary legislation to give domestic effect to that

treaty.5

When there are more than two Contracting Parties to a treaty, it is customary to have

only one original text of the treaty, which is signed by the negotiators and deposited either in

the archives of the State where it was signed, or in the archives of the international organization

under whose auspices it was concluded, each of the other parties being furnished with a

certified copy. The instruments of ratification are then as a rule deposited with whichever

government or international organ has been designated as the ‘depositary’. Amongst the duties

3
Article 2, Vienna Convention on the Law of the treaties, 1969
4
Articles 2(1) (b), 14 91) and 16 of the Vienna Convention on the Law of Treaties 1969
5
Articles. 2 (1) (b), 14 (1) and 16, Vienna Convention on the Law of Treaties, 1969
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of the depositary will be to deliver a formal acknowledgement of each deposit to the State

concerned, and to notify the other States Parties or States entitled to become parties. The

procedure to be followed in these cases is normally laid down in the treaty itself.6

Myanmar and ratification of Treaties

Myanmar joined the United Nations (UN) after gaining independence on April 19, 1948

and thus she becomes the 58th member state of the UN.

By ratifying a treaty, Myanmar is bound under international law to comply with the

provisions of the treaty. Moreover, as a state by the Vienna Convention on the Law of the

Treaties, to which Myanmar is party to, Myanmar must comply with the provisions of the treaty

in good faith and cannot use domestic law as a justification for failing to comply with treaty

obligations. Upon ratification, states are obliged to ensure their domestic is consistent with the

aims and provisions of the treaty. Many international treaties and conventions also require

governments to subject themselves to regular reporting and scrutiny by the UN and related

human rights bodies. If a state party is found to have breached any of the provisions under a

treaty or convention they have ratifies, they are considered to have acted in violation of

international law. Becoming signatory to an international treaty or convention represents a

state’s endorsement of the agreement, but does not give rise to any binding legal obligation.

Signatory states are obliged to ensure they refrain from acts that undermine or contradict the

intent of the treaty. Ratification of international treaties and covenants is the most concrete way

that a state can demonstrate its intent and commitment to the upholding human rights through

international law.

Myanmar has ratified various international conventions on human rights and

humanitarian law, and as a State party it must respect its international obligations. Myanmar

has ratified the Geneva Conventions (ratified in 1992), Convention on the Prevention and

Punishment of the Crimes of Genocide (ratified 1949), Convention for the Elimination against all

form of discrimination against women (ratified 1997), Supplementary Convention on the

6
Art 77 of the Vienna Convention on the Law of Treaties
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Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (ratified

1957), Convention on the Rights of the Child (ratified 1991), and Convention concerning Forced

or Compulsory Labour (ratified 1955). 7 As well as respecting its international obligations,

Myanmar has an obligation to respect and comply with customary norms, such as the

prohibition of crimes against humanity, war crimes, and torture.

Under international law, crimes against humanity are acts committed as part of a

widespread or systematic attack directed against any civilian population, with knowledge of the

attack. These include murder, enslavement and forcible transfer of population, torture and rape,

enforced disappearance of persons as well as persecution against any identifiable group or

collectivity on political, racial, national, ethnic, cultural, or religious grounds.8

International Human Rights Treaty

The United Nations stipulates that recognition of the inherent dignity and of the equal

and inalienable rights of all members of the human family is the foundation of freedom, justice

and peace in the world. The Universal Declaration of Human Rights (UDHR) is a declaration

adopted by the United Nations General Assembly on December 14, 1948.9 The UDHR represents

the first global expression of rights to which all human beings are inherently entitled. It consists

of 30 articles which have been elaborated in subsequent international treaties, regional human

rights instruments, national constitutions and laws. While not a treaty, UDHR forms part of

customary international law. Myanmar voted in favor of the Declaration on December 10, 1948.

There is also a framework of international human rights and humanitarian law that

prohibits torture and other forms ill treatment. The Rome Statute defines torture as “the

intentional infliction of severe pain or suffering, whether physical or mental, upon a person in

the custody or under the control of the accused; except that torture shall not include pain or

suffering arising only from, inherent in or incidental to, lawful sanctions”. Because the legal

principles within this definition of torture have been recognized in previous international

7
Myanmar: International Treaties Status
8
Article 7, Crime against Humanity
9
Universal Declaration of Human Rights, 1948
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treaties, including the Geneva Conventions, State parties who are signatories of such prior

treaties are obligated to adopt necessary and corresponding national legislations in conformity

with these treaties; as a signatory, Myanmar is legally responsible for the creation of legislation

that prohibits such acts. Torture is also included in the UDHR (Article 5), stating that “no one

shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.

Although Myanmar has not ratified the UN Convention against torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment, the convention has been widely accepted as

part of customary international law, meaning that States are required to refrain from

committing torture, even if they have not signed particular international treaties. Cruel,

Inhuman or Degrading Treatment or Punishment requires that there must be official

involvement in, or consent to, the acts of torture in order for a State to be considered to have

perpetrated the crime of torture. International law requires that States take affirmative steps to

prevent torture, and that they act to provide justice and accountability should torture or ill

treatment take place. The prohibition of torture is recognized as a peremptory norm, known as

jus cogens, which means that at no time can torture be justified; not in a time of war; under

threat of war; when facing internal instability; or in a state of emergency. Under these

international standards, the prohibition of torture is absolute and binding on all nations at all

time.

Benefits of Ratification

For Myanmar, there would be nationwide benefits arising from the ratification of

international human rights treaties. Ratification would improve respect for human rights, the

rule of law and credibility of the Government. Ratifying international law also establishes

systems of monitoring and review, fostering greater transparency and governmental

accountability, as well as important complaint mechanism, allowing individuals to pursue

human rights infringements. In addition, securing greater protection for human rights also

improves people’s sense of security, thereby increasing opportunities for productivity and
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economic development in the country.10 Since human rights and humanitarian challenges are

often interconnected and mutually reinforcing, improving the situation of human rights would

have a far reaching impact. Guaranteeing individuals’ rights through the ratification of

international human rights treaties would help remedy a range of important humanitarian

challenges, such as hunger, access to education, access to health care, gender equality, poverty,

child labour, as well as legal and justice reform.11

Ratifying key international treaties will also garner support for Myanmar from the

international community, opening important channels for strategic and diplomatic

communication. Improved international cooperation enhances a state’s capacity to tackle

complex issues by sharing knowledge, perspectives and best practices with other states.

Ratifying human rights treaties may also alleviate remaining sanctions on Myanmar which

prevent it from rejoining international economic and political spheres. Though many

international economic and political sanctions on Myanmar have been lifted, especially from

European Union (EU), still remain in some country. Regaining international support, earning

credibility and the respect of fellow states as well as rejoining the economy should be of high

priority for the NLD on pursuit of greater freedoms, economic development and democracy.

Treaties and conventions strengthen domestic provisions that govern the use of force in

relation to internal armed conflict. Myanmar’s armed forces have been embroiled in a civil war

with numerous ethnic armed groups for decades. The conflict has been the source of

widespread displacement of people, as well as the precursor to vast amounts of human rights

violations and breaches of humanitarian law, including rape and other forms of sexual violence,

forced labour, arbitrary arrest, torture and other forms of ill treatment, landmine use and the

recruitment of child soldiers.12 Ratifying international human rights treaties would be a tool for

the Government to address the human rights abuses that have arisen and continue to arise as a

result of armed conflict in Myanmar, preventing them from occurring in the future, in order to

10
United Nations Trust Fund for Human Security. Human Security Handbook: an integrated approach for the realization
of the Sustainable Development Goals and the priority areas of the international community and the United Nations
System, January, 2016
11
Alston, P and Robinson, M. (2005). Human Rights and Development: Toward Mutual Reinforcement
12
Amnesty International. Amnesty International Annuak Report 2016/ 2017
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secure a pathway with numerous ethnic armed groups for the peace and national reconciliation

processes.

Myanmar’s binding Obligations under International Law

The foundation of international human rights is rooted in the UN Declaration of Human

Rights (UDHR), which universally recognizes the basic fundamental freedoms inherent to all

human beings. Through not legally binding itself, the UDHR is the basic for numerous legally

binding International human rights treaties and compels UN Member states to adhere to its

principles. As a UN member state, Myanmar has pledged its faith in fundamental human rights

and to achieve, in cooperation with the UN, the promotion of universal respect for and

observance of human rights and fundamental freedoms.

Myanmar derives treaty responsibilities through its membership to the Association of

Southeast Asian Nations (ASEAN). Myanmar has been a member of ASEAN since 1997 when it

signed the ASEAN Charter, which codifies the norm, rules and values of its members. States that

are party to the ASEAN Charter must adhere to the principles and provisions as stated in Article

2, which states that ASEAN and it Member States shall “Adhere to the rule of law, respect

fundamental freedoms, and promote and protect human rights’. 13 Myanmar must fulfill its

obligations enshrined in the ASEAN Charter, which forms the basis for its membership to the

organization, and guarantee the rights of its citizens. Singing and ratifying core international

human rights treaties such as the UNCAT and ICCPR would be conducive to this obligation.

ASEAN Declaration is the founding document of Association of Southeast Asian Nations

(ASEAN), which was signed on August 8, 1967. While ASEAN adheres to the principle of non-

interference in internal affairs, the ASEAN Charter calls on member states to respect human

rights and adhere to the Rule of Law. The founding charter of ASEAN lists as one of its aims and

purposes “to promote regional peace and stability through abiding respect for justice and the

rule of law in the relationship among countries of the region and adherence to the principles of

13
The ASEAN Charter, Article 2
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the United Nations Charter”. 14 Furthermore, according to the ASEAN Charter, one of the

purposes of ASEAN is “to strengthen democracy, enhance good governance and the rule of law,

and to promote and protect human rights and fundamental freedoms”.15 Moreover, the aims of

the ASEAN Intergovernmental Commission on Human Rights (AICHR) include “to uphold the

right of the peoples of ASEAN to live in peace, dignity and prosperity” and “to uphold

international human rights standards as prescribed by the Universal Declaration of Human

Rights, the Vienna Declaration and Programme of Action, and international human rights

instruments to which ASEAN Member States are parties”.16 Despite the fact that grave human

rights violations continue to go unchecked inside the country, Myanmar was handed the ASEAN

chairmanship in October 2013.17 As the chair of ASEAN in 2014, Myanmar should arguably be

required to act in accordance with the principles enshrined within the ASEAN charter.

The Convention on the Rights of the Child requires the ratifying states to respect and

ensure the rights of each child, including ensuring that no child is subjected to torture or other

cruel, inhuman, or degrading treatment or punishment. The government of Myanmar has

publicly affirmed its legal commitment to protect children as evidenced by its ratification of the

Convention on the Rights of the Child in August 1991, as well as its enactment of the Child Law

in 1994 and rules of procedure in 2001. Myanmar has also ratified the Convention concerning

Forced or Compulsory Labour of the International Labour Organization (ILO) in 1955, and thus

bound itself under international law to suppress the use of forced or compulsory labour in all its

forms.

State’s International human rights Law obligations

Like all States, Myanmar has a duty to respect and to protect the human rights of all

persons within its jurisdiction. Myanmar’s international human rights obligations arise from the

1945 Charter of the United Nations, human rights treaties, and general and customary

international law.

14
ASEAN aims and purposes
15
Article 1 (7), ASEAN, 2008, p. 4
16
AICHR, 2009, pp. 3-4
17
Pomfret, J., October 2013
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Myanmar’s security forces, under the command of the Myanmar Army have a duty to

respect and to protect the human rights of all persons in northern Rakhine State, as in any

territory that is part of Myanmar or otherwise under its jurisdiction, regardless of their official

citizenship or residency status, without any form of discrimination. This responsibility does not

absolve other State agents, including civilian authorities, from their obligations under

international law.

Even recognizing the legal and practical limitations on the exercise the civilian authority

over security operations, the National League for Democracy (NLD)- led civilian government

remains bound to do everything in its power to protect human rights during security operations

in Myanmar. Principles of State responsibility affirm that all organs of government are bound by

a State’s international law obligations and that governance arrangements cannot excuse a

failure to perform these obligations.

Myanmar is party to four of the principal international human rights treaties and one

Optional Protocol: the Convention on the Elimination of all forms of Discrimination Against

Women (CEDAW), the Convention on the Rights of the Child (CrC) and its Optional Protocol on

the sale of Children, child pornography, the Convention on the Rights of Persons with

Disabilities (CRPD) and as of 6th October 2017, the International Covenant on Economic, Social

and Cultural Rights (ICESCR). These international treaties create clear obligations upon the

State including rights pertaining specifically to the rights of women, the rights of children and

the rights of persons with disabilities.

Myanmar is a party to the 1948 Convention on the Prevention and Punishment of the

Crime of Genocide. Under article 1, States undertake to prevent and to punish genocide,

whether committed in time or peace or in time of war. Article 3 identifies the following acts as a

punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to

commit genocide; (d) attempts to commit genocide and (e) complicity in genocide.

Myanmar is also a party to the four 1949 Geneva Convention relating to international

humanitarian law. Many of the rights reflected in instruments such as the Universal Declaration
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of Human Rights (UDHR) and the International Covenant on Civil and Political Rights, from part

of general international law and customary international law, and are also applicable in

Myanmar.

In order to conform to its international human rights law obligations the Government of

Myanmar, in all its organs, must desist from conduct that constitutes or gives rise to violations

to the State’s international human rights law obligations. The governmental administration and

responsible authorities are obliged to take measures to protect the right to life, including by

allowing immediate humanitarian access to those in need.

International human rights law also binds the government to establish necessary

institutional arrangements to respect and protect human rights, through measures including:

the reform or repeal of laws inconsistent with rights obligations, including laws that enable and

facilitate impunity for human rights violations; the use of the courts to ensure compliance with

the law of both private and public persons, including the military; the enforcement of

administrative and judicial sanctions for rights violations; and ensuring access to effective

remedies for persons affected by human rights violations by organs of the States or affected by

rights abuses by non- state actors.

The violence in northern Rakhine States does not fulfill the criteria necessary to classify

the situation as an armed conflict according to international law. The fact that military forces

were employed to carry out security operations are taken pursuant to an armed conflict within

the meaning of international law.

In the absence of armed conflict international humanitarian law does not apply and

international human rights law requires that any security concerns be addressed only through

criminal justice and other measures that fully comply with the State’s ordinary international

human rights obligations. In the absence of armed conflict, the State’s ordinary international

human rights restricted to law enforcement operations governed by criminal law and human

rights law rather than military operations governed by international humanitarian law.
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Even if the situation in northern Rakhine State were to be determined as constituting an

armed conflict that invoked the application of international humanitarian law, international

human rights law would continue to apply, subject only to any permissible derogations the

State can justify. Some elements of international human rights law, such as the prohibition of

torture and other ill- treatment, always apply with full force and are subject to no form of

derogation or limitation even in situations of armed conflict. The right to life would also

continue to apply in situations of armed conflict, although what constitutes an arbitrary

deprivation of life may in a situation of armed conflict depend on whether it was consistent with

international humanitarian law.

How the Government of Myanmar solves the issue of Rakhine State

While the government is working to establish peace, stability and a democratic federal

Union, there are many challenges. For over 70 years, previous governments have been trying to

resolve the issues in Rakhine State, which have been shouldering in the background. This is the

reason why the transition to democracy has been slow, as the current government is trying to

take care of the Rakhine issue first.

The necessary arrangements for repatriation, relief and resettlement have now been

undertaken in accordance with the bilateral arrangement signed by Myanmar and Bangladesh

on 23 November 2017.18

The Independent Commission of Enquiry (ICOE) consisting of two well-known

international personalities and two local experts was established in accordance with the law.

This Commission is tasked to investigate allegations of human rights violations and the related

issues of terrorist attacks. There will be cooperation and collaboration among relevant

departments and organizations, the security forces and the ICOE.

Myanmar respects the sovereignty and dignity of each individual nation, and therefore it

will continuously work towards fostering closer friendships that will contribute towards global

18
Arrangement on Return of displaced Myanmar persons sheltered in Bangladesh on 23 November 2017
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peace and the improvement of international relations. In this regard, it is also crucial to follow

international laws and agreements.

In order to handle the Rakhine issue, peaceful coexistence through diversity will be

implemented. However, if mind-sets and perspectives remain the same as when the conflicts

and tension occurred, we will not be able to resolve these issues. Thus, the issue should be

addressed with a new approach, taking into consideration regional and international

perspectives, in accordance with 21st century globalization. We will only be able to overcome

the unfair challenges and pressures with the unity of our citizens. The Rakhine situation is a very

complex and sensitive issue.

The government would like to express its gratitude to the public for its understanding,

trust and support during this difficult and stressful period as it is trying its utmost for the future

development of the nation. The government continues to strive to amend laws that are no

longer agreeable to democratic values and accepted human rights standards.

Conclusion

The Union Government aims to institute the rule of law, through the development and

promulgation of laws, rules and regulations, law enforcement, and the administration of justice

through the legal system to promote good governance.

The government’s plans are now in place to implement the strategic plan for anti-

corruption and bribery. At the same time, in order to protect individual rights and the basic

rights of citizens, the protection of human rights is being implemented as a matter of great

importance.

The Myanmar National Human Rights Commission is ensuring greater understanding,

promoting awareness and protection. Legal aid for people who cannot afford legal

representation has been established. Legal aid is given to citizens who are poor and unable to

defend for themselves, such as children, women, the elderly, disabled, and people suffering from

communicable diseases.