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Rights-claiming in a rule of law vacuum

The Salween River famously remains the longest free-flowing river in Southeast Asia. On one of its more remote upper stretches in a Thai national park, there is a large sign tacked up on the opposite bank. It is written incongruously in English, red painted on white, its prominent elevated bankside location intended to capture the attention of any foreign journalists, NGO staff or improbable tourists venturing here.

On the rough-hewn wood, it simply says: ‘No Dam’, with a skull where the ‘O’ should be.

The purpose of such a sign is clear. It is a shout and a protest against development-induced displacement where it manifests without warning, accompanied by threats, in an atmosphere where there are neither formal channels through which to vent grievances and where collective experience with recent violence militates against voicing complaint.

Common sayings in Burmese language reveal the caution with which people speak freely: ‘If you’re talking during the day, look behind you. If you’re talking at night, check under the house.’ Another belies the ingrained distrust between communities: ‘For Karen people, before you finish your plan, don’t let the Burmese see.’ When it comes to business and development projects, traditional reservations against open communication manifest in the wholesale exclusion of local communities from project planning, and their being informed frequently without warning and accompanied by threats, that a new project will necessitate their relocation.

A rigorous new report from the Karen Human Rights Group released last week details forced displacement by government and non-state actors over the last two years for new hydropower dams, military camps, plantations, ‘model’ villages, gold, coal and antimony mines, and the infamous Dawei-Kanchanaburi highway.

It should come as no surprise that, given the persistently closed nature of political and legal institutions in Burma, villagers attempt to prevent displacement or secure some form of tangible redress through informal rights-claiming strategies like negotiation, non-compliance, complaint and open protest.

What is surprising however is the development agenda’s persistent focus on support for state institutions, rather than for the concrete ways in which communities are already attempting to claim rights without institutional support. While civil society and NGOs tend to laud the increased space since the advent of civilian government in March 2011, this is often space for their own engagement with policymakers, rather than for village-level grievance airing or access to remedy.

[pullquote] “Protests are cropping up and breaking the silence surrounding long-established projects” [/pullquote]

The assumption remains that the claiming of rights vis-à-vis business will predominantly be shaped by the internalisation of international norms into domestic laws, not to mention voluntary exposition of principles in corporate charters. While this is well and good, and the exposition of sound regulatory frameworks in Burma to be welcomed, the lack of clarity that plagues business and human rights norms, not to mention the enforcing role of National Human Rights Institutions (NHRIs), will long hinder attempts to institutionalise them, even in non-transitional contexts.

There nonetheless exists in Burma enormous opportunity for well-crafted programmatic measures that go far beyond institutional capacity building. Community rights-claiming strategies are directed not only at states or political institutions but at corporate or even non-state armed actors with financial stakes in business. They represent nascent movement towards rule of law in a transitional context. Their persistent portrait as untouchably ‘political’ and oppositional in relation to the state is flawed and hinders vital programmatic support that aims inexorably at apoliticism.

The new KHRG report offers telling examples of some of the different ways in which rights-claiming manifests independently of institutional trappings in a rule-of-law vacuum. In turn, these illustrate the abundant opportunity there exists for programmatic measures to build on these strategies and so strengthen communities’ stance on the negotiating field.

In the absence of widely accessible formal complaints mechanisms, protests are cropping up and breaking the silence surrounding long-established projects, with villagers seeking retrospective redress for past grievances.

Back in 2005, when construction began on the Toh Boh dam near Tantabin, residents of 15 villages displaced at the dam site formed a committee and approached local military commanders to complain. They were informed that the orders were not local and threatened with arrest if they continued to seek compensation. Compare that to 25 September 2012, when residents of the affected villages organised a public protest, coordinating with local civil society organisations and media, to demand retrospective compensation for inundated homes and agriculture.

In remote areas in which numerous armed groups operate, open protest or failure to comply with forced displacement orders is a dangerous option, yet rights-claiming nonetheless manifests. In the T’Nay Hsah area to the east of Hpa’an town, villagers long-accustomed to paying a land cultivation fee to local military authorities were confronted with wholesale eviction in March 2012 to make way for rubber plantations, but refused to sign the documents or to give up their land.

Challenges to complaint also exist where villagers may not know who is sanctioning the project that is displacing them, let alone to whom they can apply to complain or seek redress. Given the diverse areas of state and non-state control, permission may be granted in one quarter and denied in another.

A prime example concerns the forced displacement in June 2012 of villagers from a site in K’Ter Htee, a town on the western bank of the Yunzalin River south of Papun town, for the construction of a military barracks. Tatmadaw Border Guard troops told villagers in the area that the Karen National Union (KNU) had sanctioned and received compensation for the project.

Upon hearing that the project had been sanctioned by the KNU, some villagers vacated their land in K’Ter Htee in exchange for a nominal fee. When they sought subsequently to complain to the KNU, a commander in the group’s armed wing, the Karen National Liberation Army (KNLA), told the villagers that the KNU had not given permission for the project or met with the Border Guard and that the displaced villagers had been duped by the Border Guard’s lies.

Where there is a lack of transparency as to who the project implementers are, where legal channels are closed, where language barriers prevent overt engagement, and where the prospect exists of violent retribution, the fact that these kinds of rights-claiming endeavours manifest at all is itself remarkable.

Villagers in rural Burma do not have time to wait for the institutionalisation of norms into domestic policy. For those seeking to secure some tangible remedy at the community-level, programmes that foster community empowerment and confidence building now provide a powerful complement to existing strategies.

The cases mentioned briefly above begin to demonstrate the potentially rich rewards that grassroots human rights documentation training, bolstering of existing information-gathering networks and availability of grassroots legal support and awareness-raising might reap in combatting unjust and exploitative displacement, even in the restrictive institutional environment that persists across Burma.

There is a pressing need for further research and for research-driven programmatic measures that seek not merely to build the capacity of institutions, but also to bolster informal and viable avenues for rights-claiming. Well-framed legal and political institutions are not the sole prerequisite from which effective rights-claiming will flow.

In eastern Burma, state institutions will remain shaky, and their enforcing role peripheral, for many years to come. Strong programmatic measures undertaken in the interim must not ignore informal strategies as inherently ‘political’ and therefore untouchable, but rather capitalise on the integral role they play in securing recognition for rights norms where they would not otherwise emerge.

Jill Davison is an independent researcher, analyst and former research coordinator at the Karen Human Rights Group. Follow on Twitter @jilldkaav

-The opinions and views expressed in this piece are the author’s own and do not necessarily reflect DVB’s editorial policy



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