 Hello, I'm Marcus Brandt. I'm the Head of Mission of International Idea in Myanmar, and we are conducting a series of talks with experts on international law, human rights law, and constitutional law in the context of building federal democracy in Myanmar. And today we have an expert friend from the United Nations, James Roderhaver, from the Office of the High Commission for Human Rights, who has been leading the work of the OHCHR for Myanmar for the past three, four years already. James has a long history of engagement with human rights in transitional and conflict settings. You've worked in and on Afghanistan, Syria, Bosnia, Kosovo, and many other places that have gone through crisis and conflict in an effort to help also bring accountability and fight impunity, but also building structures, state structures that actually can protect and ensure guaranteed human rights. And this is what we want to talk about today. So thank you very much for being with us today, James. And I first of all wanted to ask you sort of when you look back at all of the engagement of the UN system, OHCHR, various international organizations at Myanmar, we clearly see that human rights, it's still very much at the beginning of effective protection. Where do you see we have made some progress over the years in terms of instilling more of a human rights culture or more of an awareness of human rights and where do you see sort of the opportunities and challenges in the coming months in particular and years in that regard? I guess I would just start by saying that I think that the primary area of advance has been in the understanding of the people of what human rights are or can offer and the fact that they are entitled. They have these rights that are part and parcel of their humanity. And you can see that hunger and determination in the people in the way that they have resisted the seizure of their democracy. And I think that's a very positive sign even if it has led to disastrous consequences for the people. And what I think it has laid bare is just how deep the challenges the people will face moving forward, that there has to be a civil service and government institutions that also recognize these rights and that know most importantly how to give tangible voice and action to these rights. How to help the people to realize their rights. And that will be the number one challenge for any future transitional government to build the credibility so that people both understand that government is there to help them realize their rights and then actually have the skills and capacity to deliver. So it is very much a question of awareness of a political culture and also the relationship between the state and the people. When we look at the previous constitution, the 2008 constitution, we see that it actually did include a section on human rights and it even included a way to appeal to the court mechanism to defend these rights. Now what was wrong with that kind of system or to what extent did this not sufficiently provide the human rights protection for the people of Myanmar? Well the problem with the 2008 constitution is that first and foremost it did not address some of the systemic root causes of conflict that had plagued the country for years previous, particularly in the role of the military in the country. The fact that it gave a protected status to the military both within government structures which then effectively made them untouchable and the fact they were not accountable to a civilian authority and then that put them in the position to at any time of course do what they have now done which is to say we don't like the direction the government is going so we will take that government away and when the people resisted they then say we will then use the force that is at our disposal to stop people from opposing us and those the roots of that misuse and abuse of power are in the 2008 constitution. Now in terms of the human rights provisions in the constitution themselves yes there are several flaws with that constitution particularly in the fact that it does not address you know the the rote discrimination against not just the Rohingya community but they of course are perhaps the most emblematic group but the the fact that it still you know protects the differentiations that are made between different communities and ethnicities in the country rather than guaranteeing absolute equality for all people so there is that issue there is also of course that there are not clear separation of powers within the constitution that there is not this clear notion vested in the in the constitution that the judiciary which is of course the primary remedy that people have in the country whenever a right is violated that judiciary is not independent of all the other institutions working in the country and that absolutely is critical to ensuring that the remedies that are at people's disposal are effective. So it takes a lot more than just looking at the list of human rights mentioned in the human rights section but you have to look at appeal support enforcement mechanisms and in fact the whole constitutional system as such so things like the separation of powers independent judiciary can you explain a bit more how exactly a judiciary a justice system effectively helps to ensure and protect human rights. Well you know of course it's critical because you know first of all anytime that you have a constitution that that is supposed to protect human rights it has to be it has to convey the full force of the notion that the constitution is there to give voice to the people and to give you know tangible tangible force to their rights that has to be the first and primary purpose of a government is to to fulfill the rights of the people now some people say no no the first the first goal of a government is to provide security well security is one of those core it's an aspect of those core human rights so it's really about does the does the constitution itself gives sort of the the right packaging does it does it properly package you know the purpose of government and and give voice and and as I say form to to the rights of the people and then and in so doing you know the judiciary plays that absolutely critical role because you can have nice words in law but the thing that gives them meaning and and form or of course the actions of government and if the government doesn't act or if they act in a way that violates the rights of the people the only or the not the only but the primary place that they can turn to to help them regain their rights or to get some form of compensation is the court system and you know and that's at the heart of of ensuring that that rights have force and that they have meaning and that they're not something that people take away lightly or without sanction and and that's so that's critical and now when you look at very complex conflict and transition situations like the countries that you have also worked on you have also seen that this is often very difficult to build to rebuild independent judicial capacity after conflict so what are some of the examples that you would mention good examples or bad examples of that that Myanmar should take into account when when trying to build judicial structures for the future right well I've encountered numerous very poor examples there there is usually a reflex whenever there is a transition in place to to bring back people who had previously been part of a governing structure sort of saying that it's better to bring in people with experience than to start fresh or from scratch and that often means that people come back into office and capacity and they have not been held accountable for their own failure to do their job in past or to address abuses that they committed whenever they were judicial officials and so and that so that's the first big problem that one has when you're rebuilding the judiciary the second aspect is making sure that you have people that actually have a an understanding and a respect for the law as it is now written and the probably the first and most challenging thing that Myanmar will have to do in a new transition is revisit its some of its core legal structures including the constitution so you need to make sure whoever is brought back into office has a full and fully developed understanding of of what the purpose of the new laws to be put in place are going to be and that infers a fuller understanding of human rights and and what are their responsibilities as independent judicial officials to ensure that the government and that the military structures are held accountable for past abuses and abuses moving forward and and that is of course that implies a certain level of sophistication of training and and and the capacity also for institutions within the judiciary to hold the judiciary accountable and so that those are several layers of of checks and balances that you need or at least of a of a more sophisticated understanding of of the judicial ethical professional capacities and duties that that the new judiciary will have to have what also makes this doubly challenging is that you need to bring in judiciary who are ready and capable of trying in some cases some very complex crimes and and of course they're primarily I'm thinking of war crimes and crimes against humanity some of the core international crimes and one hopes that there will be the capacity to give proper advice and training to judicial officials to do this now as I say in several places I have worked it this transition has been handled poorly because they've brought in former judicial officials in the case of Myanmar I think what needs to happen or what should happen is that they rely on the rich pool of young lawyers and talent to rebuild the judiciary people that have had more recent training that are have had a broader array of jurisprudential training so that they've actually been trained not only in the law and judicial history of Myanmar but also in other systems including international legal systems whether it be at the you know the international court of justice the ICC the international criminal court or or other bodies that have helped national judiciaries handle this problem of accountability so we should probably already start with a massive rollout of a capacity building program for building up this future judicial capacity for Myanmar to be able to exercise this effective role of a judiciary in order to protect human rights we'll get to the international dimension briefly but first I want to ask you also about the role of national human rights institutions such as a human rights commission how does that complement the role of a judiciary all right well the national human rights commission is you know it is yet another institution that can help serve as a complaints mechanism a body a you know a body that works in the public service so works in the interest of the people to have an independent voice with an investigative capacity that can hear complaints or allegations of human rights violations and then provide advice to the judicial structures on how those complaints should be handled they can actually do a proper investigation they can bring the process further along so that a judicial system particularly a judicial system that will likely be beset with a huge number of cases to start out with they will actually have an independent body that's looked at these claims and they've been able to say is this a valid claim or not is there are there is there evidence are there underlying you know reasons why this case has much more credible than others and so it should help them approach a variety of cases that involve human rights violations in a strategic way so that a judiciary can actually say okay these are cases that should have greater priority or these are cases that we know we can try quickly so that's one role of a national human rights commission to be this complaints body that can already be looking at cases and recommending potential solutions so so that's that's one aspect of how it can work it's also a body that should be out there working in the public interest to educate not just the government but also the people on what their rights are what they can expect to have and provide advice on the creation of policy so that again whenever you're trying to give a tangible you know form to the rights of people you're only as good as the policies that you make as a government are you properly prioritizing the people who are most in need whenever you're delivering services there is going to be a huge need to really put in place a a social welfare capacity in the country that can look after help look after the elderly the young the sick the the the just the country the communities in the country that have been impacted by these years of conflict and violence um and so it'll be a question of social welfare capacity it'll be a question of health the provision of health services um you know psychological and social health services uh there and of course education so uh the national human rights commission should be able to help provide you know basic levels of human rights education and of course pressure the government to make the right choices in the creation of policy the other aspect the national human rights community provides is also it serves as sort of a coordinating center of gravity for civil society so that you make sure that communities that are served by civil society organizations that they have voice within the the commission the commission can work through civil society work with civil society help improve their capacity and also their reach into communities throughout the country and so uh there are a variety of ways that the the commissions if they're run properly can be a huge help to to the people but also to the government in addition to the national institutions judiciary uh supreme court the regular courts and the national human rights institution there is of course the international system of human rights in the human rights machinery of the united nations in some areas in the world also at the regional level uh now the relationship between international law international human rights law and national constitutional law is different in different countries and uh in Myanmar that also is still under discussion to what extent international law will uh in the future uh have direct effect for instance uh in the international uh jurisprudence but uh what maybe you could already describe is what is actually available to Myanmar already at this point so Myanmar has signed and ratified a number of international human rights conventions treaties not all there are some notable exceptions but the national unity government has of course announced that it will be ready to exceed to uh in particular the iccpr and the torture convention uh maybe you can just describe a bit what would that mean and what what kind of access to human rights protection does that give to citizens of Myanmar in addition to uh what is available at the national level uh the treaty bodies the the various systems that exist and what can be and cannot be expected from those okay well the the international uh human rights treaty system is is one that is primarily intended to be uh you both an advisory and an accountability uh function for states you know so it's supposed to help um provide states first of all more detailed more detailed understanding of what their obligations are under the different rights provisions uh in the treaty that they have agreed to be bound by um you know particularly the international covenant on uh economic social and cultural rights uh it is you know the treaty that sort of provides you with an overview of what the core minimum obligations of a government should be uh to meet the social and economic needs of its people and and then by extension also provide a framework under which they can report regularly back on how they're helping get better over time and then this body of experts that services this treaty body and and and all the other treaties have their own expert committees they can then provide advice on whether or not what the state is doing is enough or perhaps other things the state should try to improve their performance so that they're actually meeting their human rights obligations whether it be on the the right to um uh to to you know organize uh in labor relations uh the right to have access to social assistance or or forms of social welfare uh you know help you have the right to to help and a healthy environment so some of these sort of core uh rights that really affect the the conditions that you live in on a day-to-day basis these these bodies can help you uh can help the government understand how to fully or more fully improve their performance in delivering the on these rights uh there are also of course the other treaties that that Myanmar belongs to such as the the the convention on the rights of the child or the convention on the elimination discrimination against women where again it helps them to recognize what more they can do to address uh the you know discrimination against women how they can better realize equality um and uh and then for children of course to better understand the range of areas where the government should be providing tangible uh assistance to children to ensure their rights are met now the other function that some of these conventions these committees provide under these conventions or treaties is they provide a complaints function so and what this essentially is is it's a uh it's a it's a a port of last resort uh where if there is a sense that the national institutions are not meeting their obligations to an individual and these individuals have tried to address these issues in the the national mechanisms or or institutions and have not been helped in any way or if their case has not been resolved they can then take it to these committees and say you know my rights have been violated i have tried to address this to the government i have tried to address it to the courts i have gotten no assistance and then the committee can actually provide an expert opinion on whether they think the convention has been violated or not whether the state has violated their obligations to the individual or not and then so it also provides that level of of accountability or at least uh an additional you know lifeline to the individual if they really feel that their rights have been taken away or violated in some way so that that system it provides several different layers then where a state if it's failing to meet its obligations they have ways to to both seek help and assistance and guidance and of course have a an objective independent uh review uh from time to time to say you know have you done enough you know where do you need to do more how can you do more and and then the last sort of one of these mechanisms that are interrelated is the universal periodic review which is a function of the human rights council of the united nations which is one of the the you know uh multi-state you know uh bodies or mechanisms of the united nations uh multilateral bodies of the united nations provided for in the un's own charter in which states agree to be examined by their peers by by other states and then they go through not only the different recommendations and guidance and and advice that's been given by those treaty bodies but they also then you know offer their own opinions and advice to states so it's really states holding states accountable and uh so what that does is it also gives an extra layer of sort of uh scrutiny to what states do so it what it means is that really if a government is being um honest and if it's being if it's open to you wanting help and seeking advice there's no shortage of ways in which they can get advice on uh on a detailed expert level on areas where they should focus if they want to improve their human rights performance so there are basically these two avenues the treaty based treaty body related uh track yes in which governments uh can even be questioned by on individual cases and then you have the charter based universal review where all states talk to each other but in both cases it is actually the government that represents that state that country to the united nations that is the actor in in that international system that's now how does that work when a country is very is federal and very decentralized or has autonomous regions that run their own security system their own judiciary etc that are not as such represented in the united nations that are represented by let's say a union or federal government how does that connection work and how for example when Myanmar that signed up to all these human rights treaties and I presume will continue to be bound by them even when they pass a new constitution uh how will that obligation actually trickle down to the new let's say emerging federal units local governments how does the internal organization of a country get reflected in these international human rights obligations well that's where you have again it as you say it's the role of a government and so you know even a decentralized federal state you know it has to have and retain that capacity to to first of all communicate effectively with those decentralized units of government to let them know look you might be separate but you have these same obligations that we do and so you know they should be there to make sure that those obligations are clear that they are helping them understand and and to provide your strategic guidance coordinated guidance to all layers of government you know federal and local to make sure that they understand how they can best meet those obligations so it shouldn't just be that the government issues edicts or so forth it also has to be in terms of how they provide funding how they coordinate the the provision of advice or the creation of policy how they bring all of those different autonomous units together around core principles and that's another reason why I think it's critical that human rights not just be an isolated section of a constitution but it be the core rationalization as to why the government exists and government at all levels not just the the federal government the chapeau government that gets the attention internationally but at all layers of government they realize their power flows from the people and it's their role and obligation to meet the rights of the people to ensure that their rights are not violated to make sure that the people have an ability to understand their rights and realize their rights and that to me is a critical role of any federal government that they make sure that that be the organizing force and power of the policy that they issue of the coordination and the leadership they provide but also the policies that they work and the guidance they provide so an individual citizen in any given part of the country let's say a federal state that has a large degree of autonomy whose rights may be violated by that local or regional government must have access to recourse judicial recourse at the national level but then also indirectly to the international level in order to guarantee their human rights well yes they should have let's say yeah there should not be a shield I mean in the end a court system is only works well if it's accountable to a higher level now of course at some point there will be a supreme court to issue final decisions but you know there should be recourse to you know an appellate mechanism that's a that's a core aspect of what makes a remedy effective and have you seen examples of where that is problematic let's say in decentralized countries or like the limits of where the reach of the national judiciary and the local government sort of match that is probably a very contested area in many countries yeah and yes it is and you know in especially countries that have been impacted by by conflict now it's I have to say that I've usually seen that in countries where it's been ethnic ethnically based conflict you know internecine conflict where you have you know violence in which you know one ethnic group is fighting another and so they distrust the institutions that might be led by or dominated by another ethnic group in Myanmar there is such a common purpose right now among different ethnic groups I would hope that they could avoid that now you have examples such as in Bosnia and Herzegovina where you have you know a real conflict in terms of how the the the temporary or transitional constitutional structures have been formed and it means that that there are three separate at any given time three separate you know court structures having to try to work together in order to provide you know guidance to citizens who who bring cases of human rights violation and Bosnia of course still also has international representatives in some of its judicial bodies yes it does as a result of the dating peace agreement yes and and of course that is something that would probably be unlikely to happen in in Myanmar so I'm not sure that Bosnia is ever a useful example in terms of particularly how government is structured but I will say that Bosnia perhaps has one of the better track records at how they built their court system and the professionalism their court system both with an influx of younger professionals and how they worked constructively with the international community to build the capacity of all levels of the judiciary they also had a even though not as as good a vetting process as I think they should have they have over time vetted out some judicial officials that were either incompetent or who had perhaps an unsavory past that disqualified them from really you know being an honest voice in the judiciary because of involvement in past violations thank you well I think we have to wrap it up already James but I think we would like to also highlight the very good resources that are available from OHCHR on human rights education in general but also specifically on the role of human rights in constitution building processes that is a document that is also available in Burmese language and so we will add it as a link to this video and any other documents and reports that you may share there is a huge number of reports available on on the treaty bodies site the whole set of official reports by member countries to these various conventions lots of guidebooks about the different conventions so there is a very rich material available with OHCHR and we hope that we can also work together in the future for the people of Myanmar to spread the word to provide human rights education and to ensure that these emerging institutions following the transition will actually be able to protect human rights effectively so thank you very much James and with that thank you also to the audience and we will invite you to access the links and hopefully you will follow us again in the future thank you thank you