ASEAN INTER-PARLIAMENTARY MYANMAR CAUCUS

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THE ABUSED NOTION OF NON-INTERFERENCE It is time for ASEAN to stop hiding behind the rhetoric of non-interference. For years now, ASEAN has invoked its commitment to non-interference in member states' internal affairs to explain why it chooses not to engage Myanmar. This sounds like a valid excuse in principleafter all, what country wants other countries interfering in its internal affairs?but, in reality, it does not apply to the Myanmar situation. ASEAN's commitment to non-interference is enshrined in several of the association's founding documents and declarations. The 1976 Treaty of Amity and Cooperation in Southeast Asia, for example, recognizes as fundamental principles "the right of every State to lead its national existence free from external interference, subversion or coercion" and "[n]on-interference in the internal affairs of one another." Other documents repeat these same themes. But the principle of non-interference does not define itself. What exactly qualifies as "interference"? The unlawful use of force is surely interference. But is offering an opinion on a neighbor's trade practices interference? Is encouraging a neighbor to improve its environmental practices interference? Is demanding that a neighbor allow nuclear weapons inspectors to enter its territory interference? Some might even ask whether extending formal recognition to a government that lost a free and fair popular election is interference. In order for the principle of non-interference to be meaningful, it is important to understand what it means and what it does not mean.

WHAT IS NON-INTERFERENCE? Some ASEAN governments seem to interpret interference to mean that they must refrain from criticizing anything the Myanmar generals do, no matter how outrageous. This cannot be right. ASEAN was established in recognition of the fact that the countries of Southeast Asia are interdependent. If all countries are open and cooperative with each other, all will prosper. If one country falters, the rest of the region will be held back. The purpose of ASEAN is to help all countries in the region realize their full potential, by giving them a forum to discuss their common interests and concerns. Obviously, this purpose will be frustrated if any country can suppress uncomfortable discussions by invoking a vaguely defined non-interference principle. Used in this way, the non-interference principle becomes more of a protective screen for regimes that are acting in improper ways than a meaning rule of international law. If all countries are to

prosper, they must be able to frankly discuss tough issues and engage each other over their differences. Moreover, the distinction between internal and external affairs does not hold up under scrutiny. It is not at all clear where one ends and the other begins. Some activities that seem quintessentially "internal"such as economic policyare the very thing that ASEAN was formed to influence. Indeed, the message of globalization is that "internal" and "external" are hopelessly intertwined concepts. The better reading of the non-interference principle, and the one in harmony with ASEAN's founding commitments and international law, is that countries are prohibited from coercively intervening in each others' affairs. Three examples should make it clear that this better understanding of the non-interference principle is, in fact, what the world has committed itself to.

NON-INTERFERENCE IN INTERNATIONAL LAW AND PRACTICE First, the major non-interference case in international law drew the line dividing impermissible interference from permissible actions between actively supporting an antigovernment insurgency and pressuring a government through economic measures. In Military and Paramilitary Activities in and Against Nicaragua, the International Court of Justice held that the United States had violated international law by providing funding and training to the Contra rebels, who sought to violently overthrow the Nicaraguan government. Just as importantly, however, the Court held that a trade embargo, cessation of economic aid, and other economic measures did not violate the principle of noninterference. If economic pressure on a government does not amount to "interference" under international law, then surely a variety of measures short of that would not violate the non-interference principle either. Second, two important regional groupings have expressed an understanding of noninterference that accords with the one laid out here. The Organization on Security and Cooperation in Europe (OSCE) and the Organization of American States (OAS) have both made commitments to non-interference in member state affairs, just as ASEAN has. Yet they have also publicly pledged to take action to reverse unconstitutional seizures of power within democratic member states. It is impossible to reconcile these two positions unless one understands non-interference to permit certain non-forcible measures to encourage change. Finally, and most importantly, ASEAN itself has implicitly endorsed this conception of non-interference. The very same documents that commit ASEAN member states to noninterference also emphasize that ASEAN's purpose is to enhance regional peace, growth, security, and stability. ASEAN member states have engaged each other in the past over what they viewed as threats to regional interests. For example, ASEAN was very proactive in encouraging Cambodia's government to reform as a precondition for admittance to the grouping. In addition, several ASEAN states were very vocal when

Indonesian forest fires created a regional haze. If ASEAN truly means what it says about non-interference in the Myanmar context, it should have kept silent about these "internal" political and environmental affairs. But, of course, that would have been illogical turmoil in Cambodia and forest fires in Indonesia affect all of Southeast Asia, just as the despotic regime in Myanmar does. It is high time for ASEAN to recognize that non-interference does not mean silence. It permits a wide array of actions and inducements to ensure that no ASEAN member pursues a course of action that is detrimental to the interests of the group. ASEAN was formed to protect mutual political, economic and security interests, not to create an excuse for one country to threaten the prosperity and security of the rest of the region.

Prepared for AIPMC by: David Ginn AIPMC Legal Intern Harvard Law School