Depriving the Myanmar junta of narcotics income: the international community’s, States’ and NGOs’ obligations and opportunities
Myanmar is the largest provider of narcotics in Asia, and probably the whole world. Since the military junta’s coup d’état in February 2021, the country has aslo been suffering from ferocious oppression and civil war. Given the persistence of broad-based civilian protests and multiple well-organised ethnic armed groups, the situation in Myanmar may escalate to an all-out civil conflict.1
The two facts are not unrelated: the military junta is heavily involved in the production and trade of narcotics. While sanctions imposed on Tatmadaw-affiliated businesses by the UN, US, EU and other entities has affected the junta’s revenues, drug production and trade, already illegal, is inherently resistant to the creation of new sanctions regimes. It is therefore vital to identify and effectively use all possible legal mechanisms to combat drug production and trafficking in Myanmar, not only as a global health issue, but also as a human rights priority.
A recent United Nations Office on Drugs and Crime (“UNODC”) report underlined that Myanmar, on the verge of civil war, must deal with the illicit drug economy.
“There is a longstanding connection between drugs and conflict in Myanmar, and any meaningful action to address the conflict will require breaking this cycle,” noted Jeremy Douglas, UNODC Regional Representative for Southeast Asia and the Pacific. He added, “The money generated has fueled a corrosive political economy and continued militarization, and it is clear that poor opium farming areas require better security and sustainable economic alternatives. The fact is that opium and heroin still remain an important source of income for organized crime even as the production of methamphetamine and other synthetic drugs has again increased. It is important to develop strategies to address the overall drug economy.”2
According to the International Crisis Group and Nikkei, a Japanese newspaper, the Tatmadaw negotiates ceasefires with ethnic militias in exchange for giving them free rein to produce and trade drugs in the territories they control.3 The rapprochement between the Tatmadaw and the Karen Border Guards Force is a case in point.4
Opium and opioids have long been a major economic activity in Myanmar, especially in the Shan region that borders Laos and Thailand as part of the so-called Golden Triangle. What is new, however, is Myanmar becoming the largest methamphetamine provider for Thailand, Laos, China, and Japan, and quite probably the whole world.5 Methamphetamine production is the highest-value element of Myanmar’s informal economy, and practically the only economic engine in regions such as Shan State.6 According to a 2019 estimate, methamphetamine accounted for $61 billion out of a total $71 billion generated by narcotics production and trafficking in the region.7
The junta should be rendered unable to continue instrumentalising methamphetamine to solidify its power, partly by securing sources of income and partly through bargaining with ethnic groups. Yet this should be done in line with international standards. Economic and human rights considerations are vital for uniting the country against the junta. UNODC and, separately or jointly, the National Unity Government (“NUG”) might be in position to take the lead in reducing narcotic production and trade in Myanmar and thereby secure both domestic and international support. The following sections outline legal options against the Tatmadaw; against China; and elements and features of a potential positive plan for replacing the methamphetamine economy without alienating currently dependent minorities.
1. Practical steps to restrict the Tatmadaw’s income from narcotics production and trade
Myanmar’s international obligations related to drug production and distribution are based mostly on the 1961 Single Convention on Drugs, amended in 1972 and ratified by Myanmar in 2003. Particularly relevant are Art.s 4 (general obligations), 14 (enforcement), 29 (manufacturing), 31 (export and distribution), and 35 (prevention of illicit trafficking). Another key instrument is the 1988 United Nations Convention against illicit Traffic in Narcotic Drugs and Psychotropic Substances, to which Myanmar acceded on 11 June 1991 with the following reservation: “”The Government [of Myanmar] further wishes to make a reservation on article 32, paragraphs 2 and 3 and does not consider itself bound by obligations to refer the disputes relating to the interpretation or application of this Convention to the International Court of Justice.”8
More recent salient recommendations are in the 2016 UNGASS outcome document,9 the 2016 Outcome document of the thirtieth special session of UNGA, entitled “Our joint commitment to effectively addressing and countering the world drug problem (Resolution S-30-1), and the 2019 Ministerial Declaration by the Commission on Narcotic Drugs.10
Myanmar incurs international responsibility for failing to comply with the aforementioned provisions inter alia through state organs’ participation in the manufacturing or distribution of drugs, and the State’s lack of due diligence in preventing the manufacture and distribution of drugs by private persons.
An effective way to raise these issues is through the International Narcotics Control Board (INCB), an independent and quasi-judicial monitoring body for the implementation of UN drug control conventions. The INCB examines information provided by governments, UN organs, specialised agencies, other intergovernmental organisations and international NGO’s with direct competence in the subject matter and ECOSOC consultative status.
The INCB should (a) ask for explanations in the event of apparent violations of the treaties, (b) propose appropriate remedial measures to Governments that are not fully applying the provisions of the treaties or are encountering difficulties in applying them and, where necessary, (c) assist Governments in overcoming such difficulties.
If the INCB notes that the measures necessary to remedy a serious situation have not been taken, it may call the matter to the attention of the Parties concerned, and the Commission on Narcotic Drugs and the Economic and Social Council. As a last resort, the treaties empower INCB to recommend to Parties that they stop importing drugs from a defaulting country, exporting drugs to it, or both. Moreover, the Board undertakes a number of country missions every year to discuss with competent national authorities measures taken and progress made in various areas of drug control.
With regard to methamphetamine, another relevant factor is precursor control, the control of chemical precursors used to manufacture methamphetamine. This is particularly relevant to Myanmar, since cartels there have “started to produce their own drug precursors, which previously had to be sourced from India or China. By using unregulated ingredients to make restricted precursors, they can bypass the international regulatory regime.”11
Under Art. 3 the 1988 UN Convention against illicit Traffic in Narcotic Drugs and Psychotropic Substances, State parties “shall […] establish as criminal offences under its domestic law, when committed intentionally” for the manufacture, transport or distribution of chemical substances used for producing drugs knowing that they are to be used for illicit purposes.12
Regarding precursors, INCB calls on Governments to partner with industry to effectively and quickly identify suspicious shipments.13 Successful operations have been conducted under the aegis of Projects Prism and Cohesion.14 Resources have been developed, such as PEN Online, PICS and practical, precursor-related recommendations from the Board’s annual reports on precursors, which actively and effectively support Governments in working towards the objectives of the Convention.15 Some of these resources are only available to responsible Competent National Authorities.
With respect to pre-precursors or non-scheduled precursors, the INCB highlights the importance of international cooperation among law enforcement authorities, the timely sharing of information and intelligence, and affirms that there “is a shared responsibility to ensure that each and every national precursor control system is fit for its purpose and does not present a target for traffickers.”16
2. Third States’ international responsibility: e.g. China and Thailand
As briefly noted above, methamphetamine production and trade involves both foreign non-State actors (armed groups, transnational criminal organisations, private corporations) and State actors in the South-East Asian region and beyond. The question of international responsibility is not limited to Myanmar alone. The proximity of Myanmar’s methamphetamine-producing regions to China and India is a factor in the massive scale of narcotic production in the country.
China has considerable economic interests in Myanmar, including control over criminal transnational groups that sponsor and operate the drug route between Myanmar and the rest of the region. For instance, CNN recently reported a major seizure of methamphetamine pre-precursors en route to Myanmar via Thailand.17 Note that a substantial share of chemical components that triggered the opioid crisis in the United States came from territories under Chinese jurisdiction.18 In 2018, the Chinese Government launched stringent measures to reduce the scope of drug traffic within its borders due to US pressure.19 The relatively successful Chinese crack-down is one reason why methamphetamine production has skyrocketed in Myanmar. In legal terms, the PRC by and large fulfilled its obligations to control drug trafficking within its territorial jurisdiction, but that it has not met standards of putative responsibility for the extraterritorial effects of illicit operations in which Chinese criminal organisations and entities are involved abroad.
That said, Chinese operations have not been entirely successful in eliminating domestic methamphetamine production, which even in Myanmar still relies partly on precursors and pre-precursors that originate in China. The International Crisis Group recommends that:
“Myanmar’s neighbours should stop illicit flows of precursors, the chemicals used to manufacture drugs, into Shan State. As the main source of such chemicals, China has a particular responsibility to end this trade taking place illegally across its south-western border. It should also use its influence over the Wa and Mongla armed groups controlling enclaves on the Chinese border to end their involvement in the drug trade and other criminal activities.”20
China has invested immense sums in the development of critical infrastructures in Myanmar, including deep-sea port projects along an economic corridor meant to link China’s South-Western interior to the Ocean, in the context of China’s global Belt and Road Initiative (BRI). A Memorandum of Understanding was signed between the President of China and Aung San Suu Kyi in January 2020 to this effect.21 One of the BRI projects is the deep-sea port of Kaukpyu on the Western coast of Myanmar, which serves strategic Chinese interests.
It is reasonable to posit that Chinese-sponsored and -controled critical infrastructure under development would considerably augment long-running Chinese involvement in the Myanmar drug production and trade. There is sufficient evidence and nexus to raise significant questions of international responsibilities and liabilities for China.22
3. Elements and features of a solution
From an international law perspective, the junta as the ostensible Government currently holds international responsibility for the drug economy. UNODC is an ideal position to support and coordinate, and NUG is in a strong position to initiate, legal proceedings to hold the junta accountable.
Any realistic plan must take into account that significant regions, ethnic minorities, and segments of the population depend on the production and trade of narcotics; and must be provided with viable alternative sources of income.
Concerning possible alternatives, in the context of replacing cocaine and opium production the UN has promoted the plantation of alternative crops through subsidies. One example is the $300 million agreement signed in 2017 with Colombia. A similar approach has been put in place in Afghanistan.
The downside of this approach in the case of Myanmar is that methamphetamine is not produced through extensive plantations but through chemical processes. One solution might be to adapt the UN approach by encouraging the production of other chemical substances that can be legally used in medicine or industry. A detailed plan would have to take into account applicable international legal regimes, including Art. 4 of the 1961 Single Convention on Drugs23 read together with Art. 5 of the 1971 UN Convention on Psychotropic Substances24.25 Such a strategy, despite great initial challenges, would also permit the legitimate civilian authorities of Myanmar to advance drug prevention and control as well as the right to health of the population, as protected by a series of international instruments (e.g. UHRD, Art. 25; Constitution of the WHO; Convention on the Rights of the Child, Art. 24; ICESCR, Art. 12). In addition, an alternative strategy could take a leaf from Art. 14(2) of the 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,26 and Art. 33 of the UN Convention on the Rights of the Child.27
Some experts have criticised the alternative crops approach and suggested instead focusing on alternative livelihoods, whereby the State, in combination with UN agencies, invests in human capital, job creation and security in rural communities. This approach is inspired by Thailand’s experience, where the Government began reconstruction by developing education and healthcare access in rural communities, as well as investments in infrastructure, land titles and microcredit. These measures were on the whole successful in reducing illicit crop production. UNODC has recently stated that poor opium farming regions in Myanmar require better security and sustainable economic alternatives, as well as strategies to address the overall drug economy.28 UNODC has been supporting alternative development projects in Myanmar and Laos over the past 10 years. UNODC and, separately but ideally jointly, NUG and NGOs could integrate these systems into a detailed plan of action for the methamphetamine producing areas of Myanmar.
UNODC, NUG, and/or NGOs should also strategically develop an alternative approaches to transitioning away from methamphetamine production to other forms of chemical or industrial production. This would increase pressure on the Tatmadaw and on China by actualising their legal responsibilites and reducing their income from narcotic production and trade. If this strategy is well-framed (e.g. neither unrealistic nor authoritarian, but reliant on providing alternative income to the population), it could gain international and domestic support. In addition, alternative approaches can garner universal support by avoiding adverse effects of drug criminalisation policies, long criticised for neglecting core human rights principles.29 A conventional approach based on criminalisation and forceful methods would not only alienate key regions and ethnic minorities domestically, but also abandon the hundreds of thousands who currently depend on the drug economy.
3 International Crisis Group, “The Cost of the Coup: Myanmar Edges Toward State Collapse”, 1 April 2021, at https://www.crisisgroup.org/asia/south-east-asia/myanmar/b167-cost-coup-myanmar-edges-toward-state-collapse, under III., C. “A Post-coup Economy: Natural Resource Rent Seeking and Illicit Economy”.
4 https://www.theguardian.com/world/2021/jun/01/rise-of-armed-civilian-groups-in-myanmar-fuels-fears-of-civil-war; Asia.nikkei.com, “Myanmar coup provides drug traffickers with ideal conditions”, 28 May 2021, at https://asia.nikkei.com/Spotlight/Myanmar-Coup/Myanmar-coup-provides-drug-traffickers-with-ideal-conditions.
5 Ibid.; TheGuardian.com, “South-east Asia’s biggest synthetic drug raid: 200m meth tablets found in Myanmar”, 19 May 2020, at https://www.theguardian.com/world/2020/may/19/south-east-asias-biggest-drugs-raid-200m-meth-tablets-found-in-myanmar.
6 International Crisis Group, “Fire and Ice: Conflict and Drugs in Myanmar’s Shan State”, 8 January 2019, at https://www.crisisgroup.org/asia/south-east-asia/myanmar/299-fire-and-ice-conflict-and-drugs-myanmars-shan-state.
8 United Nations Treaty Collection, Narcotics Drugs and Psychotropic Substances, Vienna, 20 December 1988, Status as at 2 June 2021, at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=VI-19&chapter=6&clang=_en#EndDec.
11 Asia.nikkei.com, “Myanmar coup provides drug traffickers with ideal conditions”, 28 May 2021, at https://asia.nikkei.com/Spotlight/Myanmar-Coup/Myanmar-coup-provides-drug-traffickers-with-ideal-conditions; France24.com, “Meth precursors fuelling Myanmar’s unstoppable drug trade”, 7 November 2018, at https://www.france24.com/en/20181107-meth-precursors-fuelling-myanmars-unstoppable-drug-trade.
16https://www.incb.org/documents/PRECURSORS/TECHNICAL_REPORTS/2016/PARTITION/ENGLISH/2016PreARr_E-Prevention_of_chemical_diversion_beyond_regulatory_controls_the_role_of_law_enforcement.pdf, paras. 187-92.
17 CNN.com, Asia’s multibillion dollar methamphetamine cartels are using creative chemistry to outfox police, experts say”, 4 May 2021, at https://edition.cnn.com/2021/05/03/asia/golden-triangle-precursors-intl-hnk-dst/index.html.
18 Asia.nikkei.com, “Myanmar coup provides drug traffickers with ideal conditions”, 28 May 2021, at https://asia.nikkei.com/Spotlight/Myanmar-Coup/Myanmar-coup-provides-drug-traffickers-with-ideal-conditions.
20 International Crisis Group, “The Cost of the Coup: Myanmar Edges Toward State Collapse”, 1st April 2021, at https://www.crisisgroup.org/asia/south-east-asia/myanmar/b167-cost-coup-myanmar-edges-toward-state-collapse, under III., C. “A Post-coup Economy: Natural Resource Rent Seeking and Illicit Economy”.
21 Financial Times, “China and Myanmar sign off on Belt and Road projects”, 18 January 2020, at https://www.ft.com/content/a5265114-39d1-11ea-a01a-bae547046735.
22 Maria Adele Carrai, “China’s Malleable Sovereignty Along the Belt and Road Initiative: The Case of the 99-Year Chinese Lease of Hambantota Port”, New York University Journal of International Law and Politics, 2019, pp. 1061-99.
23https://www.unodc.org/documents/commissions/CND/Int_Drug_Control_Conventions/Commentaries-OfficialRecords/1961Convention/1961_OFFICIAL_RECORDS_Volumne_II_en.pdf, p. 302, Art. 4 “General obligations”.
24https://www.unodc.org/documents/commissions/CND/Int_Drug_Control_Conventions/Commentaries-OfficialRecords/1971Convention/1971_OFFICIAL_RECORDS_Volumne_I_en.pdf, p. 120, Art. 5 “Limitation of use to medical and scientific purposes.”
25 Richard Lines, Drug Control and Human Rights in International Law (CUP, 2017), p. 83: “In large part, the 1971 Convention simply expands the control measures established for plant-based narcotics under the 1961 Convention to also include synthetic psychotropic substances. Therefore, for example, Article 5 of the 1971 Convention, which calls upon States to limit to medical and scientific purposes of the psychotropic substances listed in that treaty, complements the General Obligation in Article 4(c) of the 1961 Convention ‘to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs’.”
26https://www.unodc.org/documents/commissions/CND/Int_Drug_Control_Conventions/Commentaries-OfficialRecords/1988Convention/1988_OFFICIAL_RECORDS_Volume_I_en.pdf, pp. 190-1, Art. 14 “Measures to eradicate illicit cultivation of narcotic plants and to eliminate illicit demand for narcotic drugs and psychotropic substances“, (2): “Each Party shall take appropriate measures to prevent illicit cultivation and to eradicate plants containing narcotic or psychotropic substances […]. The measures adopted shall respect fundamental rights[…].”
27 https://www.unicef.org/child-rights-convention/convention-text-childrens-version, Art. 33 “Protection from harmful drugs”: “Governments must protect children from taking, making, carrying or selling harmful drugs.”
29 E.g. Richard Lines, Drug Control and Human Rights in International Law (Cambridge, 2017).