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The Legal Politics of Jurisdiction: Understanding ASEAN's Role in Myanmar's Disaster, Cyclone Nargis (2008)

Published online by Cambridge University Press:  16 May 2014

Karin LOEVY
Karin LOEVY*
Affiliation:
New York University, United States of Americakarinloevy@gmail.com
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Abstract

This paper exposes the limited perspective that we have over the problem of jurisdiction in emergencies. In the classic theory of emergency powers, sovereign control over borders is assumed, and jurisdictional problems are acknowledged when threats come from outside those borders or when they are handled outside. However, what characterizes many emergencies is not the exercise of sovereign jurisdiction but rather contestations over problems of jurisdiction and competing jurisdictional claims. To illustrate the need for a broader perspective over emergencies’ jurisdictional politics, this paper tells a multilayered story about a successful intervention by the Association of Southeast Asian Nations (ASEAN) in one of Myanmar's natural disasters (Nargis 2008). ASEAN's role in its Member State's disaster should be understood in view of its unique regional solution to the jurisdictional problem that this disaster raised—the problem of access by foreign aid to a domestic area affected by a natural disaster.

Type
Articles
Information
Asian Journal of International Law , Volume 5 , Issue 1 , January 2015 , pp. 55 - 93
Copyright
Copyright © Asian Journal of International Law 2014 

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Footnotes

*

JSD (NYU); Coordinator, JSD Program, NYU School of Law. The author extends her deep gratitude to the organizers and participants of the 3rd NUS AsianSIL Young Scholars Workshop 2012 at the National University of Singapore, and the 41st Annual Conference of the Canadian Council on International Law (CCIL): International Law in Times of Crisis and Emergencies, Ottawa, Canada, 2012; and particularly to Simon Chesterman, Youna Lion, Tan Hsien-Li, Stefan Gruber, and two anonymous reviewers for their invaluable comments on earlier drafts. Special thanks are owed to Mattias Kumm, Stephen Holmes, David Garland, Robert Howse, Jasper Fincke, and Yuen Fong Khong for helpful input on this case-study at different stages of its development.

References

1. ASEAN Secretary-General, Surin PITSUWAN, in his forward to ASEAN's report Compassion in Action: The Story of the ASEAN-led Coordination in Myanmar (Jakarta: ASEAN Secretariat, August 2010) at 7 [Compassion in Action].

2. The chorus that recognized ASEAN's role in Nargis is overwhelming and transcends ideological divides. It consists of such distinct entities as (just to name a few) the UN and its relief agencies on the one hand (see e.g. J. HOLMES, Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator: “The leadership role of ASEAN, with the Government of Myanmar and the UN, in the response to the devastation brought by Cyclone Nargis on 2 and 3 May, has been critical to the effectiveness of the relief effort. ASEAN has been instrumental in facilitating a coordinated response to the needs of the people most affected”, online: 〈http://www.aseanpostnargiskm.org/about/asean-humanitarian-task-force〉); and international media on the other (see e.g. “Myanmar to Let UN Helicopters Deep into Country” CNN (20 May 2008), noting expressed international encouragement from ASEAN's leadership role, online: 〈http://www.cnn.com/2008/WORLD/asiapcf/05/20/myanmar.helicopters/〉); the government of Myanmar on the one hand (see “International Humanitarian Assistance Should not be Politicized: Prime Minister Addressing Briefing of Relief and Rehabilitation Measures” The New Light of Myanmar (23 May 2008), online: 〈http://burmalibrary.org/docs4/NLM2008-05-23.pdf〉, expressing appreciation and gratitude to the ASEAN-UN contribution); and Human Rights Watch (HRW) on the other (HRW, “ ‘I Want to Save My Own People’: State Control and Civil Society in Burma After Cyclone Nargis” (2010) at 37–43, online: 〈http://www.burmalibrary.org/docs08/I_want_to_help_my_own_people.pdf〉 [HRW Report], the chapter which describes the phase of the disaster in which the “access” problem was solved attributed to ASEAN and titled “Breaking the Deadlock: ASEAN's Intervention and the Opening of Humanitarian Space”). ASEAN itself has largely contributed to the narrative of a success story with an unprecedented volume of publications that assess and analyze its own activities from almost every conceivable disaster management angle. These vast survey publications include: Compassion in Action: The Story of the ASEAN-Led Coordination in Myanmar, which chronicles the events that led to ASEAN's decision to launch the ASEAN-led operation; Charting a New Course: ASEAN-UN Post-Nargis Partnership, which highlights the partnership between ASEAN and the UN; Post-Nargis Needs Assessment and Monitoring ASEAN's Pioneering Response, which describes the monitoring and assessment activities that were carried out in response to the Cyclone; Bringing ASEAN Closer to the People: The Experience of ASEAN Volunteers in Myanmar focuses on how the volunteers from different ASEAN Members supported cross-cultural exchange in the recovery initiative; Voices of Nargis Survivors: The Story of Survivors from Cyclone Nargis tells stories of Burmese survivors in the disaster and in the recovery process; A Humanitarian Call: The ASEAN Response to Cyclone Nargis—a Two-year Final Report [A Humanitarian Call]; all available on ASEAN's Post-Nargis Management Portal, online: 〈http://www.aseanpostnargiskm.org/〉).

3. See e.g. International Crisis Group (ICG), Burma/Myanmar After Nargis: Time to Normalize Aid Relations (ICG Asia Report 161, 20 October 2008)Google Scholar at ii, online: 〈http://www.crisisgroup.org/~/media/Files/asia/south-east-asia/burma-myanmar/161_burma_myanmar_after_nargis___time_to_normalise_aid_relations.pdf〉, calling for further regional integration of Myanmar through the normalization of the Post-Nargis aid mechanisms.

4. See e.g. HAACKE, Jurgen, “Myanmar, the Responsibility to Protect, and the Need for Practical Assistance” (2009) 1 Global Responsibility to Protect at 156–184CrossRefGoogle Scholar; STOVER, Eric and VINCK, Patrick, “Cyclone Nargis and the Politics of Relief and Reconstruction Aid in Burma (Myanmar)” (2008) 300 Journal of American Medical Association at 729–731CrossRefGoogle Scholar; III, Julio AMADOR, “Community Building at the Time of Nargis: The ASEAN Response” (2010) 28 Journal of Current Southeast Asian Affairs at 3–22Google Scholar.

5. See e.g. the shift in the position of The Economist's Asian desk from suspicion over ASEAN's mechanism as “covering” for the Myanmar government in July 2008: “Myanmar's neighbours in ASEAN have made a big deal of leading a ‘coalition of mercy’ to organize the international aid effort. But there has been little sign of it so far” in “Asia: A Month of Misery; Myanmar” The Economist (5 July 2008), online: 〈http://www.economist.com/node/11496996〉, to a year later, acknowledging an actual change in aid relations after the removal of access barriers by the “regional bloc” (see: “Asia: When the Help Dries Up; Myanmar After the Cyclone” The Economist (30 April 2009)), online: 〈http://www.economist.com/node/13576272〉. This paper relies on this broad consensus regarding ASEAN's success. It does not aim to question it or to develop general criteria for success in disaster relief missions. Instead it accepts the success narrative as it is and focuses on ASEAN's own expression of its role and actions. It does so because it aims to describe and make sense of (rather than evaluate and judge) the particular solution that ASEAN was attempting to provide to the disaster's jurisdictional question.

6. For an example of this interpretation, see The Economist's quite cynical reading of ASEAN's moves: “much of the credit is due personally to George Yeo, the foreign minister of Singapore (ASEAN's current Chair) and Surin Pitsuwan, ASEAN's secretary-general, who are ‘pushing the envelope’ of the block's rule of non-interference.” ASEAN, it is hinted, took political advantage of the aid block to strengthen its positions of non-interventionism (“ASEAN and the Temple of Doom” The Economist 24 July 2008), online: 〈http://www.economist.com/node/11792512〉; that Myanmar responded genuinely to fears of foreign intervention, see SELTH, Andrew, “Even Paranoids Have Enemies: Cyclone Nargis and Myanmar's Fears of Invasion” (2008) 30 Contemporary Southeast Asia at 379–402CrossRefGoogle Scholar; See also Haacke, supra note 4, arguing that ASEAN was only rhetorically influenced by the Responsibility to Protect (R2P) discussions and so its intervention is limited to the aid context of natural disasters and will not extend to other humanitarian contexts.

7. This suggestion is behind many of the legal analyses of the “responsibility to protect” in the context of Nargis. First and foremost, see BELLAMY, Alex J. and BEESON, Mark, “The Responsibility to Protect in Southeast Asia: Can ASEAN Reconcile Humanitarianism and Sovereignty?” (2010) 6 Asian Security at 262CrossRefGoogle Scholar, arguing that the responsibility to protect was operationalized and localized by ASEAN's intervention in the crisis.

8. This interpretation can be found in Amador, supra note 4 at 3–22. ASEAN, it is argued, should benefit from the institutional and administrative lessons of its involvement in Nargis to better its response capacities in future crises; see also the recommendations in the ICG Report, supra note 3.

9. See e.g. ASEAN's report, Compassion in Action, supra note 1 at 70: “It is hoped that this new space will improve receptivity for future engagement. Myanmar authorities will be more inclined to work with the international community, and the international community will explore new opportunities to collaborate with Myanmar.” For some indications that back ASEAN's prediction connecting Nargis's regional intervention to the improvement of Myanmar's relations with international organizations, see infra notes 73–4. More generally, some academic commentators argue that the humanitarian space that ASEAN helped open remained open after the former aid mission was over (see e.g. KOVACH, Tim, “The Politics of Disaster Response: Disaster Diplomacy and the Responsibility to Protect after Cyclone Nargis”, Working Paper, April 2013)Google Scholar, online: 〈http://timkovach.com/wp/wp-content/uploads/2013/05/Kovach-Cyclone-Nargis-Research-Paper_041913.pdf〉.

10. In the much quoted opening remark in Carl SCHMITT, Political Theology: Four Chapters on the Theory of Sovereignty; trans. George Schwab (Chicago: University of Chicago Press, 2005) at 5–6: “Sovereign is he who decides on the exception” and also “It is precisely the exception that makes relevant the subject of sovereignty, that is the whole question of sovereignty.”

11. In the US domestic context, it is strongly entrenched in the theory of executive powers, Commander-in-Chief powers and “inherent powers” for foreign affairs and security (see the doctrinal evolution described in Jules LOBEL, “Emergency Powers and the Decline of Liberalism” (1989) 98 Yale Law Journal 1385 at 1404). More recently, see, in the context of post-9/11, the revival of emergency powers theory: “When a terrorist attack places the State's effective sovereignty in doubt, government must act visibly and decisively to assure its terrorized citizens that the breach was only temporary and that it is taking aggressive actions to constrain the crisis and to deal with the prospect of its recurrence” (Bruce ACKERMAN, “The Emergency Constitution” (2004) 113 Yale Law Journal 1029 at 1037).

12. For example, in the framework of derogations in international human rights law, the idea is that a state's human rights obligations, in times of crisis, must recede for national sovereignty concerns. Whenever decisions concerning the existence of emergency are reviewed by international judicial institutions, governments tend to fare rather well because, in the words of Oren Gross and Fionnuala Ní Aoláin, “the issues involved in emergency-related cases go to the very heart of a state's autonomy … the evidence to date is that these issues … are beyond the pale of self-defined judicial boundaries when emergencies come before either international, regional, and domestic courts” (GROSS, O. and AOLAIN, F. NI, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge: Cambridge University Press, 2006)CrossRefGoogle Scholar at 267).

13. This is true in the context of domestic debates (as in the US controversy over federal/state response to Hurricane Katrina); in extra-territorial constitutional context (as was made clear by post-9/11 attempts to strip federal courts of jurisdiction over Guantanamo detainees’ habeas corpus and the judicial response to such attempts); and it is true in international contexts (as this case clearly reveals). The significance of jurisdictional contestations in emergencies is also true in the context of different types of crisis. If post-9/11 habeas corpus jurisdiction controversies have taken place in the context of managing a security crisis (and Katrina, as Cyclone Nargis, was a natural disaster), economic crises raise different jurisdictional debates and contestations—a well-known example is the way that the Great Depression led to reformulation of doctrines regarding federal-state jurisdiction in US constitutional interpretation.

14. See the definition in the Oxford English Dictionary: the “extent”, “range”, and “territory” of judicial and administrative institutions and operations of power.

15. International law commentaries on jurisdiction refer to the capacity of an institution—typically, of states—to control, regulate, or assert power, authority, or competence over certain legally recognized relationships between various subjects: “State jurisdiction concerns essentially the extent of each State's right to regulate conduct or the consequence of events” (JENNINGS, Robert and WATTS, Arthur, Oppenheim's International Law, 9th ed. (London: Longman, 1992)Google Scholar at 456); “power” or “competence” (BROWNLIE, Ian, Principles of Public International Law, 5th ed. (Oxford: Oxford University Press, 1998)Google Scholar at 301); “powers of a state” or that state's courts (AKEHURST, Michael, “Jurisdiction in International Law” (1974) 46 British Yearbook of International Law at 145)Google Scholar; “the capacity of a state under international law to prescribe or to enforce a rule of law” (BOWETT, D.W., “Jurisdiction: Changing Patterns of Authority over Activities and Resources” (1983) 53 British Yearbook of International Law 1CrossRefGoogle Scholar); “all about allocating competence to states so that it is clear which states can exercise authority over whom” (Rosalyn HIGGINS, Allocating Competence: Jurisdiction in General Course on Public International Law (Dordrecht: Martinus Nijhoff, 1993), vol. 5, ch. IV at 89)). For an introduction to the complexity of the term and its operation, see MCVEIGH, Shaun, Jurisprudence of Jurisdiction (London: Taylor and Francis, 2006)Google Scholar.

16. For a helpful classic account of modern territorial jurisdiction, see FORD, Richard, “Law's Territory (A History of Jurisdiction)” (1999) 97 Michigan Law Review 843 at 852–855Google Scholar. The modern concept of territorial jurisdiction, according to Ford, is all about coherence, clarity, and stability: “Question it and all that is solid melts into air” (p. 851). In emergencies, the stable categorization is very often questioned: (1) the categorization of authority by area is questioned because practical authority to respond to the emergency is being tied strongly to a necessity to cope with a reality which might have effects beyond the definitive boundaries which underlie the areal category; (2) similarly, the definitive, “bright line” rules of jurisdiction become ambiguous, flexible in front of anomalous cases or anomalous “times”; (3) the abstract nature of jurisdiction (that it refers to objective measures, rendering social and political relationships impersonal and objective) is challenged in emergencies because jurisdictional activities are tied to the claim about a necessity to handle the crisis, notwithstanding pre-existing objective criterions; and (4) existing gaps of jurisdiction are apparent in emergencies because vulnerability exposes existing holes in the completeness of jurisdictional authority.

17. Note that the problem of access is just one particular “jurisdictional problem”. If jurisdiction is the authority to exercise and administer law within a territory, then the urgent claims for access and the inability of the government in this case to answer them, emphasize the limit of that authority, its threat. Other jurisdictional problems in emergencies may be more state-centred though not less dramatic. In the context of the post-9/11 “War on Terror”, for example, the Bush administration attempted to strip federal courts’ jurisdictions over such overseas military posts as Guantánamo Bay, Cuba. This raised the opportunity for US civil rights organizations to claim, and for the US Supreme Court to establish, that Cuba is “in every practical sense not abroad”, as the Boumediene majority famously held (Boumediene v. Bush, (2008) 553 U.S. 723 at 38). In legally dealing with its threats abroad, what was being determined by managing the jurisdictional problem of extra-territoriality in Guantánamo was the breadth and stretch of US federal and constitutional jurisdiction.

18. It is important to note that although emergencies and emergency measures typically raise jurisdictional problems, obviously not all types of emergency raise the same type of problem. Nargis is a typical case of a natural disaster that had impact within one sovereign territory. Different problems are raised and different solutions proposed, when—as often happens—a natural disaster carries with it transboundary effects. The same should be said about the distinction between a “natural disaster” and a “man-made” disaster—such as war. The analysis below is restricted to the circumstances of Nargis and to the question that was raised as it evolved. However, as we shall see, most solutions provided here draw on experiences learned from different types of emergency and serve to justify particular types of intervention for future emergencies of all types.

19. This paper does not attempt to challenge the claim that ASEAN was successful in solving the problem of access (see supra note 5). It tells a story about how a pressing legal and political problem—the problem of access—generated opportunities for different involved actors to effect its solution. ASEAN was just one actor which expressed its worth in the crisis. This paper concentrates on ASEAN because of the commonplace assumption that it was particularly successful in “breaking the impasse”, not in order to question it, but in order to make sense of ASEAN's “baptism”, its opportunity in the crisis. This is not to say that ASEAN's successful intervention is beyond question or doubt (it certainly is not—see more in Part IV of this paper), only to paint a more plausible picture of what it was and how it came to be.

20. K. KIKUCHI et al., “Genesis of Tropical Cyclone Nargis Revealed by Multiple Satellite Observations” (March 2009) 36 Geophysical Research Letters at 1–5CrossRefGoogle Scholar.

21. For an overview of the human toll and economic damage, see Tripartite Core Group, Post Nargis Joint Assessment Report (July 2008), online: 〈http://reliefweb.int/sites/reliefweb.int/files/resources/C675C571D9F845A7C125748D0046C5A3-Full_Report.pdf〉.

22. By referring to “contestation’ and “competition”, I do not mean that the claims made by the different involved responders were mutually exclusive. One could argue that disaster relief organizations, “global community commentators”, local organizations, and regional organizations could work together in calling for access to relief. What is important here is that the different claims for access triggered and motivated each other and that this interaction explains the dynamic politics in this crisis. The different claims are competing in that they are different options for contesting the government's exclusivity over the question of access.

23. Pamphlet distributed by the government at bus stations and along the roads leading to cyclone affected areas, photocopied in colour and published in HRW Report, supra note 2 at 22–3; “ ‘I want to help my own people’: State Control and Civil Society in Burma after Cyclone Nargis” (2010).

24. For a general account of Myanmar's record on human rights abuse and the sanction regime, see STEINBERG, David, Burma/Myanmar: What Everyone Needs to Know (Oxford: Oxford University Press, 2010) at 81–;148Google Scholar; PEDERSON, Morten, Promoting Human Rights in Burma: A Critique of Western Sanctions Policy (Lanham, MD: Rowman & Littlefield, 2008)Google Scholar; also see human rights organizations routinely documenting the level of abuse and misconduct in Myanmar—for example, see HRW Report, supra note 2, online: 〈http://www.hrw.org/publications/reports?topic=All&region=135〉), and The Karen Human Rights Group, online: 〈http://www.khrg.org/reports/reportsbyyear/index.php?rep_year=all〉.

25. See SEEKINS, Donald, “Myanmar in 2008: Hardship, Compounder” (2009) 49 Asian Survey 166 at 169–170Google Scholar.

26. See different accounts about the date and type of warning that Myanmar received: Nyi Nyi KYAW, “The Myanmar Nargis Aftermath: A Disaster in Governance” (16 May 2008) 60 RSIS Commentaries 3, cites two days, whilst S. VORAVIT et al., “After the Storm: Voices from the Delta. A Report by EAT and JHU CPHHR on Human Rights Violations in the Wake of Cyclone Nargis” (March 2009), online: Centre for Public Health and Human Rights at Johns Hopkins Bloomberg School of Public Health 〈http://www.jhsph.edu/research/centers-and-institutes/center-for-public-health-and-human-rights/_pdf/AfterTheStorm_Fullreport_2ndEd_May09.pdf〉 at 65, cites 26 April 2008 as the day the Junta received the initial warning.

27. The Mirror, 2 May 2008 (see HRW Report, supra note 2 at 16).

28. Many reports provide survivors’ testimonies stressing that although they did receive and were aware of some warning, it was blatantly too little to have any effect on preparations. For example, see HRW Report, supra note 2 at 18: “We heard that a storm was coming, but there was no warning about the cyclone in our village. The cyclone started hitting us … We ran to high land. I lost my three children. Our house collapsed. Nothing was left. Everything was washed away … We had no time to prepare” (Human Rights Watch interview with Aye Aye Win, Pyapon township, November 2009).

29. Union of Myanmar National Disaster Preparedness Central Committee, “Record of Activities During the Emergency Relief, Assistance and Rehabilitation Period in Cyclone Nargis-Affected Areas”, quoted in Compassion in Action, supra note 1 at 21.

30. Ibid. Compassion in Action claims that by July 2010 the government had allocated to rehabilitation an estimated seventy billion kyats.

31. As late as two weeks after the disaster, only half of the 2.4 million survivors of the cyclone received any sort of help. Office Coordinating Humanitarian Affairs (OCHA), “Cyclone Nargis. Myanmar” (16 May 2008), OCHA Situation Report No. 12 at 1, online: 〈http://reliefweb.int/sites/reliefweb.int/files/resources/F0CB19EE807698328525744B00760852-Full_Report.pdf〉.

32. ASEAN, Compassion in Action at 22.

33. According to the OCHA, Cyclone Nargis Update of 12 May visa update: since 4 May, for INGOs, of twenty-nine visa applications, only three had been approved; for UN agencies, of twenty-five applications, only one had been approved. See Office Coordinating Humanitarian Affairs, “Cyclone Nargis. Myanmar” (12 May 2008), OCHA Situation Report No. 8, online: 〈http://reliefweb.int/report/myanmar/myanmar-cyclone-nargis-ocha-situation-report-no-8〉. Further delays were caused by a fire at the Myanmar embassy in Bangkok, which partially destroyed the visa section on 26 May (“Fire Rips Through Part of Burma's Embassy” Bangkok Post (27 May 2008) at 1, cited in HRW Report, supra note 2 at 24).

34. Medical relief teams from Singapore, for example, were permitted to travel to the affected areas soon after the cyclone (LATEEF, F., “Cyclone Nargis and Myanmar: A Wake Up Call” (2009) 2 Journal of Emergencies, Trauma, and Shock at 106–113)CrossRefGoogle ScholarPubMed.

35. GHOSH, Nirmal, “Give, but Stay Away” Straits Times (10 May 2008)Google Scholar, see in HRW Report, supra note 2 at 25.

36. Ibid., citing World Food Programme (WFP), “Cyclone Nargis: A Diary of Humanitarian Response” (2009) at 12 and 24.

37. “Anyone may inform if he [sic] witnesses or knows that the cash assistance and relief supplies donated to the storm victims are kept for self-interest, traded, used for particular persons and organizations, or misappropriated for other purposes. We hereby announce that we have made all necessary arrangements to conduct investigation into the cases to expose the offenders and take punitive action against them in accordance with the law” (Nay Pyi Taw, “Legal Action for Any Relief Aid Embezzlement” National Disaster Preparedness Central Committee Announcement on 15 May 2008, The New Light of Myanmar (16 May 2008), online: 〈http://burmalibrary.org/docs4/NLM2008-05-16.pdf〉.

38. See “Emergency Aid Flowing into Relief Camps in Ayeyawady Div” The New Light of Myanmar (16 May 2008) at 5. In the same edition, there is a list of flights from Thailand, India, Laos, China, and Singapore among many others, demonstrating that the air bridge into Rangoon, at least, was working; Aung, HLAING, “Let's Work Together for the Nation to be Able to Rise from Natural Disaster” The New Light of Myanmar (15 May 2008)Google Scholar at 6, online: 〈http://www.myanmars.net/enews/2008/myanmar20080515.html〉.

39. The numbers were in fact much larger.

40. “Burma: Stop Forced Evictions” Human Rights Watch news release (30 May 2008), online: 〈http://www.hrw.org/en/news/2008/05/29/burma-stop-forced-evictions〉; Amnesty International, “Myanmar Briefing: Human Rights Concerns a Month After Cyclone Nargis” (5 June 2008), AI Index: ASA 16/013/2008, online: 〈http://www.amnesty.org/en/library/asset/ASA16/013/2008/en/85931049-32e5-11dd-863f-e9cd398f74da/asa160132008eng.pdf〉.

41. Tim Costello, head of World Vision Australia, in BERGIN, Mark, “Leave No Fingerprints” WORLD Magazine (31 May 2008)Google Scholar, online: 〈http://www.worldmag.com/articles/14061〉.

42. PARSON, C., “France Urges U.N. Council to Act on Myanmar Cyclone” Reuters (7 May 2008)Google Scholar, online: 〈http://www.reuters.com/article/idUSL07810481〉.

43. Compassion in Action, supra note 1 at 22.

44. Prior to Nargis, there were ten international NGOs and one UN agency in the delta. (The World Health Organization, the United Nations Children's Fund (UNICEF), the UN Population Fund, and the UN Food and Agriculture Organization had activities there to varying degrees but sometimes only through partners in the Delta.) As of April 2010, 114 organizations had reported activities in the Delta (based on information presented in Compassion in Action, supra note 1 at 60).

45. These have generally expressed less criticism and resentment towards the government's control. See for example, the experience of the local office of the Red Cross: a day before Nargis made landfall, the local office of the Myanmar Red Cross Society issued a bulletin in which it reported that it was “actively monitoring Tropical Cyclone Nargis and has initiated preparedness and response activities for the possible effects of the cyclone”. It further noted that “with the support of the International Federation it has determined that external assistance is not required at this time, and is therefore not seeking funding or other assistance from donors”. In other words, the Red Cross (1) monitors and identifies risk (as it does regularly as part of its “early warning system”) and then determines (2) its level, and (3) whether external assistance is needed. The Red Cross in Myanmar was clearly as surprised by the extremity of the hit as the Myanmar government was. Three days later, it was already deeply engaged in relief work. In a press release from 5 May 2008, the Red Cross informed us that relief workers “were on the ground soon after the storm hit, assessing the situation in the district of Yangon”. It described its activities in a detailed technical fashion and did not utter even a slight hint of complaint against the government's inaction. It reported on the conditions of the victims on the one hand, and on its own relief activities: “As people struggle to find shelter and food after Cyclone Nargis hit Myanmar on 2 May, the Red Cross is on the ground, distributing life-saving relief items, such as drinking water, clothing, food, plastic tarpaulins, and hygiene kits”, online: 〈http://webarchives.cdlib.org/sw1542jb6v/http://www.ifrc.org/docs/News/pr08/2008.asp〉.

46. The nine initial “clusters” were: food and nutrition, health, protection of women and children, shelter, water and sanitation, early recovery, education, logistics, and telecommunications. On the UN OCHA cluster approach in Nargis, see Julia STEETS et al., “Cluster Approach Evaluation, 2nd Phase Country Study” (April 2010) Global Public Policy Institute (GPPI) at 24–6, Illustrations 2–3 (Findings at 27–57, online: 〈http://www.gppi.net/fileadmin/gppi/GPPi-URD_Cluster_II_Evaluation_SYNTHESIS_REPORT_e.pdf〉.

47. This growing network of international organizations was put in place by governments, international organizations, and non-governmental actors in order to facilitate aid for a very broad range of disasters with the sole, conservative, aim of returning as soon as possible to normalcy (for the authorization sources of these organizations in their mandates as well as in declarations and resolutions, see International Federation of Red Cross and Red Crescent Societies, Law and Legal Issues In International Disaster: A Desk Study, Geneva (2007) at 33–60 [IDRL Desk Study]. The notion of a “growing” network is a prevalent description referring to proliferation in “international disaster response community” and “instruments”—from bilateral aid agreements which presided over a limited field until the middle of the twentieth century to a stream of new instruments and new actors “whose numbers have been growing at an exponential pace in recent years” (IDRL Desk Study, p. 28). Although many in this field are permanent institutions, their activities are all focused on the temporary event: they are placed to facilitate the pre-emption and prevention of a range of extreme threats, and, when disaster comes, they are authorized (limitedly) to identify and declare it, and to ease efficient response to it by assessing the damage and providing alleviation.

48. These activities are organized as institutionally constrained emergency mechanisms: the authority to engage in them is inherently limited to technically managing a temporal reality of threat and disorder for the sake of a lasting reality of an existing order. For a general overview of the legal framework and a broad overview and survey of existing instruments in this field, see the IDRL Desk Study, supra note 47 at 32–88. As will be described below, at the time of Nargis, there were also dense regional engagements, declarations, policy papers, and comprehensive agreements which were the basis for some of ASEAN's activities. Specifically, by May 2008, Myanmar had already acceded to ASEAN's Agreement on Disaster Management and Emergency Response (2005).

49. Quoted in Compassion in Action, supra note 1 at 25.

50. Ibid., at 24. This also brought more attempts by outside agencies to utilize national staff and local organizers because they allegedly could move more freely: “Word spread quickly among Myanmar's humanitarian community that national staff members were able to travel more freely to cyclone-affected areas. Agencies and NGOs, desperate to launch relief operations also began to mobilize Myanmar national staff members from other areas of the country to assist survivors in the Delta”, ibid., at 25.

51. French Foreign Minister Bernard KOUCHNER, Reuters (7 May 2008), online: 〈http://www.reuters.com/article/idUSL07810481〉.

52. Javier SOLANA, before an EU ministers meeting in Brussels, New York Times (14 May 2008), A8, online: 〈http://www.nytimes.com/2008/05/14/world/asia/14myanmar.html?_r=0〉.

53. I refer to this claim as a “global community” jurisdictional claim not because it was truly “global”—it certainly did not express a wide “global” consensus—but because of its aspiration to represent a worldwide commitment to the care of distressed and neglected populations.

54. Unanimously endorsed by 150 heads of state at the 2005 UN World Summit, this principle originated from the unresolved 1990s debates over “the right to humanitarian intervention” and Kofi Annan's plea to the General Assembly in 2000: “If humanitarian intervention is, indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica—to gross and systematic violations of human rights?” (The Secretary-General, Millennium Report of the Secretary General of the United Nations, We the Peoples: The Role of the United Nations in the 21st Century, 48 UN Doc.A/54/20 (2000). For this narrative of the principle's origins, see EVANS, Gareth, “From Humanitarian Intervention to the Responsibility to Protect” (2006) 24 Wisconsin International Law Journal 703Google Scholar.

55. The prevalent view over the responsibility to protect is that it is a “political” rather than a “legal” principle. I believe this distinction is descriptively misleading. In this disaster, as in many other cases of international emergencies, the R2P, although politically debated, carries a specifically legalistic weight embodied in the claim that to be legal, states must practise limited sovereignty (see Evans, supra note 54 at 706–7). The responsibility to protect principle is “legalistic” not because it is tied to positive law (there is in fact very little positive law in this area) but because it attempts to tie positive law to a particular moralistic picture of sovereignty. It is a claim about what the rule of law requires from sovereigns. It is therefore not simply a political principle but rather one which carries significant legal overtones (similar to the way that “the rule of law” as a political concept contains clear legal implications). The responsibility to protect, of course, means much more than intervention. As the ICISS emphasized, it means a continuum of obligations from “prevention” to “reaction”, and “recovery” (“rebuild”). See the International Commission on Intervention and State Sovereignty, The Responsibility to Protect (2001) at 19–44; this range replicates the formal features of crisis management norms (anticipation, response, and mitigation).

56. “France Urges”, supra note 42.

57. R. KAPLAN, “Aid at the Point of a Gun” New York Times (14 May) at A23, online: 〈http://www.nytimes.com/2008/05/14/opinion/14kaplan.html?_r=0〉. One must keep in mind, however, that the “international community” has not reacted in one voice. There were Western governments—such as the US, France, and the UK—who articulated a fierce attack on Myanmar's actions and inactions and threatened Myanmar with military intervention (see also in the US: “In the strongest remarks yet by a high-ranking American official, Defense Secretary Robert M. Gates said on Sunday that Myanmar was guilty of ‘criminal neglect’ for blocking large-scale international aid to cyclone victims, and that more Burmese civilians would perish unless the military regime reversed its policy”; E. SCHMITT, “Gates Accuses Myanmar of ‘Criminal Neglect’ ” New York Times (2 June 2008)). But there were also more friendly neighbours, like China, who stood to defend Myanmar against these allegations (“A Western diplomat said China, Vietnam, South Africa, and Russia had argued during closed consultations against the Security Council getting involved. The diplomat said China's envoy compared the crisis to a deadly heat wave in France in 2003, questioning why the Security Council should step in now when it did not do so in the French case”: “France Urges”, supra note 42). To be even more precise, “Western governments” were not at all united in standing behind a clear call for forced intervention. Some, like the French Foreign Minister Bernard Kouchner, recommended a forceful aid effort and France urged invoking the Responsibility to Protect at the Security Council (“France Urges”, supra note 42), but British Foreign Secretary David Miliband, while agreeing that the principle “could apply”, was more hesitant about the expectancy of French and British fighting their way into Myanmar: he noted, “the regime has 400,000 troops in uniform” (“The UN and Humanitarian Intervention: To Protect Sovereignty, or to Protect Lives?” The Economist (17 May 2008) at 50), online: 〈http://www.economist.com/node/11376531〉). Gareth Evans, one of the original R2P architects, argued against Kouchner that invoking the principle in this case while “wholly understandable as a political rallying cry … had the potential to dramatically undercut international support for another great cause, to which he among others is also passionately committed, that of ending mass atrocity crimes once and for all” (see G. EVANS, “Facing Up to Our Responsibilities” The Guardian (UK) (12 May 2008), online: 〈http://www.theguardian.com/commentisfree/2008/may/12/facinguptoourresponsbilities〉).

58. The UN General Assembly, 2005 World Summit at 138–9, as well as the Security Council Resolution that followed it (Res/1674 (2006)).

59. See Evans, supra note 54 at 709.

60. For example, R. TAKUR, “Should the UN Invoke the ‘Responsibility to Protect?’ ” Globe and Mail (Canada) (8 May 2008) at A21, online: 〈http://www.responsibilitytoprotect.org/index.php/component/content/article/172-asia-pacific/1666-ramesh-thakur-should-the-un-invoke-the-responsibility-to-protect〉.

61. “When a government default is as grave as the course on which the Burmese generals now seem to be set” (Evans, supra note 57).

62. See supra note 57.

63. See, for example, Haacke, supra note 4 at 156–84; CABALLERO-ANTHONY, Mely and CHNG, Belinda, “Cyclones and Humanitarian Crises: Pushing the Limits of R2P in Southeast Asia” (2009) 1 Global Responsibility to Protect at 135–155CrossRefGoogle Scholar.

64. Director of a Burmese humanitarian group, Rangoon (March 2010) (HRW Report, supra note 2 at 7).

65. Human Rights Watch interview with “Myo Nyunt”, Rangoon (March 2010) (HRW Report, supra note 2 at 46).

66. HRW Report, supra note 2 at 44.

67. Ibid., at 8.

68. On the special importance of religious relief activities by monks, the shelter provided by monasteries, and the inter-faith responses spearheaded by Buddhist monks, Christian pastors, and Muslim imams, see HRW Report, supra note 2 at 44-6. Many commentators have emphasized the connection between the 2007 monk-led uprising and the local organization of relief (HRW Report, supra note 2 at 46–9).

69. See e.g. in Wan, KUN, “Monks Succeed in Cyclone Relief as Junta Falters” New York Times (31 May 2008)Google Scholar: “While the government has been criticized for obstructing the relief effort, the Buddhist monastery, the traditional centre of moral authority in most villages here, proved to be the one institution people could rely on for help.” online: 〈http://www.nytimes.com/2008/05/31/world/asia/31myanmar.html?pagewanted=all〉.

70. HRW Report, supra note 2 at 8.

71. Comedian and activist ZARGANAR prior to his arrest, Rangoon (June 2008) (HRW Report, supra note 2 at 53).

72. See MACAN-MARKAR, M., “Burma: Donors View Civil Society in New Light After Nargis” Global Information Network (NY) (3 May 2010)Google Scholar: “Among Burma's 2,200 political prisoners languishing in jails across the country are 21 humanitarian workers who were arrested and jailed for leading the civil society response to Nargis. The most well known is Zarganar, one of Burma's famous comedians, who was part of an ad-hoc group of 420 relief workers that helped 42 flattened villages in the Irrawaddy Delta, which was the hardest hit by the disaster, in the first month after Nargis”, online: 〈http://www.ipsnews.net/2010/05/burma-donors-view-civil-society-in-new-light-after-nargis/〉.

73. Ibid.: “The European Union (EU), which gave 51.8 million U.S. dollars for relief efforts, is among those reflecting this shift in donor assistance. Money for smaller humanitarian programs that cost 10,000 euros (about 13,300 U.S. dollars) was given in addition to the usual flow of funds for larger initiatives by bigger, more established NGOs, which amounted to 500,000 euros (664,980 dollars) from the EU. The bulk of the funding till this policy change was directed towards the 13 United Nations agencies and the estimated 54 international humanitarian agencies and international NGOs (INGOs) operating in Burma. The INGO budget in 2009 was 128 million dollars, up from 48.7 million dollars in 2008 before the cyclone struck.”

74. SAHA, S.R., “Working Through Ambiguity: International NGOs in Myanmar” Hauser Centre for Nonprofit Organizations at Harvard University (September 2011)Google Scholar at 5: “There are today an estimated 214,000 CBOs (several of them faith-based) and some 270 apolitical LNGOs with varying social missions. Most organizations are not officially registered with the government. The government also sponsors GONGOs, the most important of which is the USDA (Union Solidarity and Development Party). GONGOs are a hybrid of LNGOs and political parties; they provide some social services (e.g. bus routes and educational programs) while creating support for the regime”, online: 〈http://www.hks.harvard.edu/var/ezp_site/storage/fckeditor/file/pdfs/centers-programs/centers/hauser/publications/reports/myanmar_report_final_version_2011_09_08.pdf〉.

75. See some examples of report titles: Voices of Nargis Survivors: The Story of Survivors from Cyclone Nargis; Listening to Voices from Inside: Myanmar Civil Society's Response to Cyclone Nargis; Post-Nargis Analysis: the Other Side of the Story (respectively: ASEAN, 2010; Centre for Peace and Conflict Studies, 2008; Akimoto, 2008). As the titles of these reports suggest, whether based inside the country or outside, whether focused on human rights or humanitarian assistance, all were trying to claim that their reports and their recommendations for action represented the true voice of the people. For an overview of this competition, see K.E. BYNUM, “Multiple Discourses: The Mobilization of Trauma Narratives within Burma's Transnational Advocacy Network”, unpublished MA thesis, University of Arizona, online: 〈http://repository.asu.edu/attachments/56465/content/Bynum_asu_0010N_10449.pdf〉.

76. See e.g. ARCHER, Diane and BOONYABANCHA, Somsook, “Seeing a Disaster as an Opportunity—Harnessing the Energy of Disaster Survivors for Change” (2011) 23 Environment and Urbanization 21CrossRefGoogle Scholar, emphasizing “the role designated to relief agencies in creating space, platform, upon which local affected people can come together to ‘instigate change’. The prevailing norm of this field is the promotion of local ‘empowerment’ ‘giving the survivors the reigns to build their lives’. ‘Outsiders’ are urged to improve their sensitivity to local ‘jurisdiction’: The creation of alternative inter-jurisdictional lines through disaster knowledge and capabilities, this paper calls on the international organizations as ‘outsiders’ to improve the way they see and intervene. They must see survivors as agents and intervene by using knowledge and techniques of support ‘to harness energy’ to ‘empower’. It calls on the international community to improve its knowledge of intervention by perfecting a certain sensitivity to local jurisdiction”, online: 〈http://eau.sagepub.com/content/23/2/351.full.pdf〉.

77. The contrast is highlighted by many accounts of ASEAN's position in the crisis; see e.g. Haacke, supra note 4; Stover and Vinck, supra note 4; Amador, supra note 4.

78. Respectively: Emergency Rapid Assessment Team; ASEAN Humanitarian Task Force; Tripartite Core Group; Post-Nargis Joint Assessment; Post Nargis Recovery and Preparedness Plan. See detailed description of the network of institutions, all part of the ASEAN initiatives: A Humanitarian Call, supra note 2 at 28–52.

79. See HRW Report, supra note 2 at 37, describing ASEAN's intervention under the title “Breaking the Deadlock: ASEAN's Intervention and the Opening of Humanitarian Space”.

80. See supra note 1.

81. 3,833 visas according to TCG and ASEAN's Report (Compassion in Action, supra note 1 at 74).

82. Post Nargis Joint Assessment, supra note 21.

83. Ibid. More than 600 million dollars were donated through AHTF mechanisms from May 2008 until July 2010, with major contributions coming from Australia, Canada, the European Union, Japan, Norway, Thailand, the UK, and the US (but also from Belgium, China, Denmark, Finland, France, Germany, Italy, Kuwait, the Netherlands, Saudi Arabia, Singapore, Sweden, and Switzerland). See “ASEAN Concludes Cyclone Nargis Operations in Myanmar” Targeted News Services (13 August 2010): “Notable achievements include having some 623,000 children benefitting from educational humanitarian response and 575,000 children receiving essential learning material packs. The funds also led to 356 multi-purpose building cum-cyclone shelters being built and 3,800 ponds constructed. More than 1.5 million people received agriculture support, 172,960 fishing gears distributed, and 422 health facilities have been rehabilitated under the purview of the AHTF”, online: 〈http://targetednews.com/nl_disp.php?nl_date_id=157202〉.

84. See ASEAN's analysis of the move from the first relief stages to the longer-term recovery where sufficient resources were not available and “donor fatigue set in” (Compassion in Action, supra note 1, 65 at 65).

85. See ICG Report, supra note 3.

86. See references at supra note 7.

87. In the wake of the financial crisis, the “ASEAN Way” was highly criticized: “ ‘(Th)e ASEAN Way’ no longer works” because “the organization's cardinal principle of non-interference has run into the reality of inter-dependence” (“The Limits of Politeness”, The Economist (26 February 1998) at 59, online: 〈http://www.economist.com/node/114305〉); for a legal and institutional critic of ASEAN, see CHESTERMAN, Simon, “Does ASEAN Exist? The Association of Southeast Asian Nations as an International Legal Person”, New York University Public Law and Legal Theory Working Papers, Paper 83, (2008)Google Scholar. See also ALVAREZ, Jose, “Institutionalised Legalization and the Asia-Pacific ‘Region’” (2007) 5 New Zealand Journal of Public and International Law 9 at 17Google Scholar: “Beneath the welter of impressive names/acronyms—ASEAN, ARF and APEC, the Shanghai Five and its Shanghai Cooperation Organization, ASEAN plus Three (APT), the Pacific Forum, the ASEAN Troika, the ASEAN Security Community (ASC), the ASEAN Economic Community (AEC) and the seemingly impressive agreements produced under these organizational auspices … are arrangements that are at the low end of the obligation, precision, and delegation tables … Most of these are easy to dismiss as mere mechanisms for diplomacy, playgrounds of spheres of influence or the exercise of balance of power, venues of dispute resolution through power politics, or vehicles for the venting of hot air.”

88. For those who follow the political interpretation, see supra note 6.

89. For those who follow the institutional, technical interpretation, see supra note 8.

90. I thank an anonymous reviewer for raising this difficulty.

91. The story of ASEAN's success in Nargis is repeated by many—with surprisingly little critical reflection. Its classic telling starts from ASEAN's culture of non-interference, contrasting it with the leadership role that ASEAN assumed in Nargis, summing up ASEAN's contribution as “opening a humanitarian space” and ending with a prescription for other regional organizations to learn from ASEAN's model intervention. For a typical example, see CREAC'H, Yves-Kim and FAN, Lilianne, “ASEAN's role in the Cyclone Nargis Response: Implications, Lessons and Opportunities” Humanitarian Exchange Magazine, Issue 41 (December 2008)Google Scholar: “The Association of Southeast Asian Nations (ASEAN) has in the past been strongly criticised for its position on and relationship with Myanmar, in particular for its policies of ‘non-interference’ and ‘constructive engagement’. In its response to the devastation caused by Cyclone Nargis, ASEAN as an organisation took a bold step by proactively assuming a leadership role, both in convincing the Myanmar government to cooperate with the international community and in managing the response itself. In so doing, it has helped to open up an unprecedented level of humanitarian space. While much work still needs to be done, ASEAN's approach to the post-Nargis response may well offer a model for other regional organisations. Natural disasters such as Cyclone Nargis are likely to become increasingly frequent, and expertise in responding to and managing them will be needed in the future”, online: 〈http://www.odihpn.org/humanitarian-exchange-magazine/issue-41/aseans-role-in-the-cyclone-nargis-response-implications-lessons-and-opportunities〉.

92. This analysis is in line with a constructivist international relations theory, which explains international structures as shaped by interactions within them. This wave in international relations theory, and specifically its Asia-Pacific concentration, acknowledges the limits of realist, liberal, and neoliberal accounts in explaining and predicting political events in regional and international relations. It is the particular cognitive lenses through which actors engage (as opposed to principles or interests) that is understood as the key to explaining behaviours and predicting outcomes. The question is “how norms are produced at time t, diffused at time t+1, internalized at t + 2 and then reproduced and changed through the practices of states at t + 3”: see JOHNSTON, Alastair, “International Structure and Chinese Foreign Policy” in Samuel KIM, ed., Chinese Foreign Policy Faces a New Millennium, 4th ed. (Boulder, CO: Westview Press, 1998)Google Scholar, 55 at 58. See generally RUGGIE, John, Constructing the World Polity: Essays on International Institutions (New York: Routledge, 1998)Google Scholar; KATZENSTEIN, Peter, ed., The Culture of National Security (New York: Columbia University Press, 1996)Google Scholar at 11–17; FINNEMORE, Martha and SIKKINK, Kathryn, “International Norms and Political Change” (1998) 52 International Organization 887CrossRefGoogle Scholar; and specifically in the Asia-Pacific Region, see Alastair JOHNSTON, “Socialization in International Institutions: The ASEAN Way and International Relations Theory” at 107, as well as Thomas BERGER, “Power and Purpose in Pacific East Asia: A Constructivist Interpretation” at 387, both in IKENBERRY, John and MASTANDUNO, Michael, eds., International Relations Theory and the Asia-Pacific (New York: Columbia University Press, 2003)Google Scholar. The analysis here is methodologically connected to that theoretical move because it attempts to describe ASEAN's evolving capabilities as a crisis manager on the basis of the cognitive and normative as well as material effects of regional interactions.

93. ASEAN Declaration, Indonesia, Malaysia, the Philippines, Singapore, and Thailand, Bangkok, 8 August 1967, online: ASEAN 〈http://www.asean.org/news/item/the-asean-declaration-bangkok-declaration〉.

94. Zone of Peace, Freedom and Neutrality Declaration, Malaysia, 27 November 1971, online: ASEAN 〈http://www.icnl.org/research/library/files/Transnational/zone.pdf〉.

95. Declaration of ASEAN Concord, Indonesia, 24 February 1976, online: ASEAN 〈http://www.asean.org/news/item/declaration-of-asean-concord-ii-bali-concord-ii〉; and The Treaty of Amity and Cooperation in Southeast Asia, Indonesia, 24 February 1976, online: ASEAN 〈http://www.asean.org/news/item/treaty-of-amity-and-cooperation-in-southeast-asia-indonesia-24-february-1976-3〉; the first makes explicit ASEAN's interest in political stability and emphasizes the connection between the internal political stability of its members, regional stability, and security; the second provides a code of conduct for interstate relations in the region. The most important guiding principle was “mutual respect for the independence, sovereignty, equality, territorial integrity, and national identity of all nations” (art. 2).

96. SOLINGEN, Etel, Regional Orders at Century's Dawn: Global and Domestic Influences on Grand Strategy (Princeton, NJ: Princeton University Press, 1998) at 15–16Google Scholar; WRIGGINS, W.H., “The Dynamics of Regional Politics: An Orientation” in W.H. WRIGGINS, ed., Dynamics of Regional Politics: Four Systems on the Indian Ocean Rim (New York: Columbia University Press, 1992)Google Scholar, 1–22 at 4.

97. Foong, KHONG Yuen, “The Elusiveness of Regional Order: Leifer, the English School and Southeast Asia” (2005) 18 The Pacific Review at 23–41Google Scholar.

98. Ibid., at 34.

99. A vast literature connects ASEAN's second wave of institution-making to the need to respond regionally to the crisis and the negative effects. See e.g. HYLAND, A., “Asian Exports Feel Threat of War” (2002) Australian Financial Review at 30Google Scholar; TRAN, V.H. and HARVIE, C., eds., Causes and Impact of the Asian Financial Crisis (London: Macmillan, 2000)Google Scholar; TRAN, V.H., The Asia Recovery (London: Edward Elgar, 2001)Google Scholar.

100. Foong, KHONG Yuen and NESADURAI, Helen, “Hanging Together, Institutional Design, and Cooperation in Southeast Asia: AFTA and the ARF” in Amitav ACHARYA and Alastair JOHNSTON, eds., Crafting Cooperation: Regional International Institutions in Comparative Perspective (Cambridge: Cambridge University Press, 2007)Google Scholar, at 32. The ARF was aimed at addressing new security challenges in the wider Asia-Pacific region following the end of the Cold War, while the APT is broadly aimed at creating functional linkages between ASEAN and its three Northeast Asian neighbours, China, Japan, and South Korea. Particularly successful, according to Khong and Nesadurai, was the financial collaboration in the Chiang Mai Initiative (CMI): “A direct response to the trauma of the 1997–1998 Asian financial crisis and dissatisfaction with IMF responses to the crisis, the CMI is a regional liquidity facility aimed at providing short-term financing to support currencies in crises. Hence, it was a project that could not have been undertaken by ASEAN alone given its need for large amounts of financial reserves, which only Japan and China were able to contribute when the project was launched in 2000.” In this context, Khong and Nesadurai also see the enlargement of ASEAN to ten members through the inclusion of Vietnam, Laos, Myanmar, and Cambodia in the 1990s.

101. See Declaration of ASEAN Concord, supra note 95, art. 4.

102. ASEAN Declaration on Mutual Assistance on Natural Disasters, 26 June 1976, online: 〈http://www.asean.org/communities/asean-socio-cultural-community/item/asean-declaration-on-mutual-assistance-on-natural-disasters-manila-26-june-1976〉.

103. The state may then negotiate for their speedy purchase: Agreement on the ASEAN Food Security Reserve, 4 October 1979, online: 〈http://www.jus.uio.no/english/services/library/treaties/13/13-02/asean_food_security.xml〉. Note that no state has ever sought assistance through the Reserve.

104. ASEAN Agreement on Trans-boundary Haze Pollution (2002); Declaration of ASEAN Concord II (2003); Declaration on Action to Strengthen Emergency Relief, Rehabilitation, Reconstruction and Prevention in the Aftermath of the Earthquake and Tsunami Disaster of 26 December 2004. These accords have laid down the policy framework which mandates ASEAN to pursue programmatic disaster management initiatives at both the regional and national levels. See also action plans such as the Regional Haze Action Plan (1998), Vientiane Action Programme 2004–10 on pursuing a comprehensive integration towards a more dynamic and resilient ASEAN Community by 2020.

105. ASEAN Agreement on Disaster Management and Emergency Response, 26 July 2005 (entered into force on 24 December 2009), online: 〈http://www.asean.org/communities/asean-political-security-community/item/asean-agreement-on-disaster-management-and-emergency-response-vientiane-26-july-2005-4〉 [AADMER].

106. ASEAN Secretariat, “ASEAN Disaster Management Agreement to Enter into Force by End of 2009” (16 September 2009)Google Scholar, online: 〈http://www.aseansec.org/PR-AADMER-EIF-End-2009.pdf〉.

107. See ASEAN's Secretary-General's Press Release upon entry into force in December 2009: “AADMER is one of the fastest-negotiated agreements in ASEAN's history, having gone through a mere four months of negotiations … It is also ASEAN's affirmation of its commitment to the Hyogo Framework for Action”, online: 〈http://www.asean.org/archive/PR-AADMER-EIF-End-2009.pdf〉. (See also ALLES, D., “Depoliticizing Natural Disasters to Enhance Human Security in Sovereignty Based Context: Lessons from Aceh (2004) and Yangon (2008)” in B. CHENG GUAN, ed., Human Security: Securing East Asia's Future (Berlin: Springer Science+Business Media B.V., 2012)Google Scholar, Chapter 8.

108. ASEAN had various expert committees for sharing technical information and developing strategies for more than thirty years, but the AHA was the first institution with authority to co-ordinate relief efforts.

109. AADMER, supra note 105, arts. 12 and 14.

110. Ibid., art. 1(1); “disasters” are defined broadly to include “a serious disruption of the functioning of a community or a society causing widespread human, material, economic or environmental losses” (art. 1(3)). “Disaster management” is defined as “the range of activities, prior to, during and after the disasters, designed to maintain control over disasters and to provide a framework for helping at-risk persons and/or communities to avoid, minimize or recover from the impact of the disasters” (art. 1(4)).

111. There remains a question of whether ASEAN had in fact implemented the instruments that it had assumed in this area in Nargis. Generally the answer should be: only sparingly. ASEAN had, and still has, only limited actual ability to implement its rather developed IDRL norms (Amador, supra note 4). The claim here relates only to the process of norm development, which directed ASEAN to acknowledge and to present itself as potentially able because of activities, sensibilities, and commitments it consistently engaged in, in the pre-Nargis stage.

112. See infra notes 125–9.

113. The first sign of involvement was ASEAN's Press Release from 5 May: “ASEAN Members Urged to Support International Emergency Relief for Cyclone Victims in Myanmar”, online: 〈http://www.aseanpostnargiskm.org/events-and-news/press-statements-release/39-ahtf-press-release/155-asean-members-urged-to-support-international-emergency-relief-for-cyclone-victims-in-myanmar〉. The analyses in this and in the following section attempt to be loyal to ASEAN's own expression of its activities. The attempt is to interpret ASEAN's self-explanation in a way that will be in line with expressed intentions.

114. ASEAN's Compassion in Action Report (supra note 1 at 24) reveals a somewhat collegial sensitivity to what is valued as a professional frustration of international agencies and volunteers who are eager to do their job but are blocked by Myanmar's “bureaucratic red tape”.

115. Ibid., at 26.

116. The aid operation activities are detailed mostly in A Humanitarian Call, supra note 2 at 26–111; the “moments of decision” activities are portrayed in Compassion in Action, supra note 1, mostly at 28–45.

117. Compassion in Action, ibid., at 28.

118. Bilateral aid was already accepted by Myanmar's government in the first stages of the disaster (see World Food Programme, supra note 32 at 12).

119. Compassion in Action, supra note 1 at 31.

120. Ibid., at 36: Pitsuwan also recalls his meeting with Robert Zoellick, the Director of the World Bank, on 15 May, who encouraged him and promised partnership: “I like it Surin, we are ready to stand behind you. I know you need help. I know you need support. You can count us in to be with you.”

121. Ibid., at 31.

122. Ibid.

123. Ibid.

124. Ibid., at 35.

125. Ibid.

126. Ibid., at 38.

127. Ibid.

128. Ibid., at 39. The claim here is not that the minister's meeting was in fact the beginning of a new ASEAN, but that it is described by the organization as exerting a type of pressure that exceeds any previous interaction with Myanmar.

129. One may differentiate between ASEAN's form of “intimacy” and, more generally, diplomatic efforts to defuse crises at the international level. What is unique in ASEAN's form of intimacy is not only its “familial” overtones that stretch beyond the diplomatic level to the professional/expert and administrative levels, but even more importantly, that the organization emphasizes intimacy as an ability and takes pride in it (while others might hide this aspect as less rational).

130. “ASEAN Concludes Cyclone Nargis Operations in Myanmar”, Targeted News Service, Washington, DC (13 August 2010).

131. See “ASEAN-UN ESCAP Joint Press Release—ASEAN Book Series on Post-Nargis Response Launched”, Bangkok (31 August 2010), online: 〈http://www.asean.org/news/asean-statement-communiques/item/asean-un-escap-joint-press-release-asean-book-series-on-post-nargis-response-launched-bangkok-31-august-2010〉.

132. The concentration on hazards in their connection to vulnerabilities has also shifted the understanding that recovery activities importantly affect the conditions of resilience of a specific political environment. See OLIVER-SMITH, Anthony, “Anthropology and the Political Economy of Disasters” in Eric C. JONES and Arthur D. MURPHY, The Political Economy of Hazards and Disasters (Walnut Creek, CA: AltaMira Press, 2009)Google Scholar, at 25: “Both in prevention and in reconstruction, people can address those conditions which bring about disaster by undertaking political action to not only hold those responsible for vulnerable conditions accountable but also to reframe human-environment relations and the entire process of development.”

133. A Humanitarian Call, supra note 2 at 28.

134. Ibid., at 33.

135. Compassion in Action, supra note 1 at 49.

136. The Report provides proof to the working of the design in the testimony of UNRC/HC in Myanmar. Parajul: “It was not only the Ambassadors that were extremely committed. They mobilized their capitals. They took their roles very seriously. We met every week and they showed a high level of commitment” (ibid., at 49).

137. Quoted in Compassion in Action, supra note 1 at 51 (emphasis added). This ideal cultural trait of ASEAN's mechanism may be conflated with its more traditional principle of consensus in decision-making. This in itself can be an impediment to effective relief (higher decision-making costs). Not surprisingly, ASEAN is not interested in presenting trade-offs but in prompting a vision of harmony and unity as an appealing interpretation of its conduct in Nargis.

138. Ibid., quoting Chu Cong Phung, the Vietnamese Ambassador on the TCG.

139. Ibid., at 51, quoting Anish Kumar Roy, then Special Representative of the Secretary-General.

140. Ibid., at 54.

141. Ibid.

142. Ibid., at 54–5.

143. Ibid., at 72: “ASEAN worked together with the Myanmar Government and the UN to open up humanitarian access in the Delta, which brought much-needed assistance, expertise and supplies to the survivors of Cyclone Nargis.”

144. Ibid.: “Improved access for the international community created new humanitarian space in Myanmar and new pathways for engagement in both directions.”

145. Ibid.

146. Ibid., at 72 (stressed at 75): “The post-Nargis effort prompted some donors to reassess their policies regarding providing aid to Myanmar and others to increase their contributions significantly”; this shift is also reasoned and promoted: “Myanmar received less Overseas Development Assistance (ODA) than any of the 50 poorest countries in the world in 2007, including North Korea, Zimbabwe, and Sudan. Myanmar received US$4 per person in ODA, according to the Organization for Economic Cooperation and Development; Cambodia and Laos PDR received US$47 and US$65 respectively for the same time period. Increased aid flows into Myanmar following the Cyclone resulted in a dramatic increase in ODA to US$11 per capita in 2008.”

147. Ibid., at 77: “Many humanitarian agencies say they have better working relationships with the Government as a result of working together in the post-Nargis response.” The Report substantiates this claim by quoting a number of relief officials from UN agencies to NGOs (among them Bhairaja Panday, the UN Refugee Agency representative in Myanmar, Win Zin Oo, the director of humanitarian and emergency affairs for World Vision, Vincent Hubin, deputy head of office for the UN Office for the Coordination of Humanitarian Affairs, and more).

148. Ibid., at 72: “Besides being more willing to engage with the international community, the Government's capacity to respond to an emergency has improved. Government authorities have demonstrated a greater appreciation of what it takes to lead a disaster response and willingness to reach out to the international community for support in emergencies”, providing as evidence to support this claimed shift in the government's capabilities, the Reports note efficient and co-operative response by Myanmar in two later disaster events: “[When] landslides killed dozens and displaced thousands in western Myanmar in June 2010, high-ranking Government officials assessed the damage first-hand, conferred with UN agencies and NGOs, adjusted their plans accordingly, delegated duties for aid delivery and quickly authorized aid delivery. When a cyclone once again threatened Myanmar from the Bay of Bengal in April 2009, MoSWRR [Myanmar's Ministry of Social Welfare Relief and Resettlement] appealed for assistance. They alerted Save the Children, World Vision and UNICEF and requested support before it made landfall” (ibid.).

149. One could claim that ASEAN's approach was in fact not very different from the technical, pragmatic, and therefore limited, and conservative approach typical of international disaster relief organizations. They too speak in the language of co-operation and voluntary access. As I have shown in this Part, ASEAN's approach, especially in the response stage, was very different from that of international relief organizations. While its experiences and actual capacity in delivering relief was quite minimal, the intimacy of its relationships internally and externally put it in a position to exert effective pressure on Myanmar. It is not merely a technical claim because it is a claim about common interests, belonging, and friendship. ASEAN presents itself as a unique regional organization if it can credibly stand for both—a political “belonging” and a technical administration of relief.

150. “The Limits of Politeness”, supra note 87.

151. See HAACKE, Jurgen, “ASEAN's Diplomatic and Security Culture: a Constructivist Assessment” (2003) 3 International Relations in the Asia-Pacific at 57–87CrossRefGoogle Scholar. Especially appealing in Haacke's account is the idea that “diffusive reputation”, arising in the context of a discrepancy between the normative values of others and the self-identification of the target actor, is a key motivating, even coercive force, on the targeted actor.

152. In October 2012, Surin Pitsuwan warned that sectarian violence between Buddhists and Muslims and the plight of the Rohingya in Myanmar could potentially destabilize the whole region. However, a year has passed and ASEAN has not proposed initiatives to address this issue, albeit calling for a co-ordinated and immediate regional response that will push the government to do more to ease the plight of the Rohingya (see online: 〈http://www.irinnews.org/report/98477/analysis-in-search-of-a-regional-rohingya-solution〉). For frustrated calls for ASEAN's intervention in this crisis, see e.g. SUNDARI, E.K., “Where is the ASEAN Community?” The Jakarta Post (14 August 2013)Google Scholar, online: 〈http://www.rohingyablogger.com/2013/08/where-is-asean-community.html〉; RASHVINJEET, S.B., “Chandra Muzaffar: ASEAN Must Urge UN to End Persecution of Rohingyas in Myanmar” The Star Online (Friday, 21 June 2013)Google Scholar, online: 〈http://www.thestar.com.my/News/Nation/2013/06/21/Chandra-Muzaffar-Asean-must-urge-UN-to-end-persecution-of-Rohingyas-in-Myanmar.aspx〉; and HUNT, L., “ASEAN Has to Do a Rethink on Burma Rohingya Issue” The Diplomat (10 May 2013)Google Scholar, online: 〈http://thediplomat.com/asean-beat/2013/05/10/asean-needs-to-do-a-rethink-on-burmas-rohingya-issue/〉.

153. ASEAN's contribution in these events was significantly more limited. To help in response to the Thai flooding in 2011, ASEAN sent a very limited mission of five representatives, ASEAN-Emergency Rapid Assessment Team (ERAT) to work under the Thai authorities to assess damages. The team “observed”, “monitored”, and “assessed” but was not engaged in relief operations (online: 〈http://www.asean.org/news/asean-secretariat-news/item/the-asean-emergency-rapid-assessment-team-dispatched-to-respond-to-floods-in-thailand〉). On 3 December 2012, Typoon Bopha struck the southern Philippine island of Mindanao, killing more than 900 people and affecting the lives of more than five million. On 14 December, ASEAN reported that its Centre for Humanitarian Assistance in Jakarta (AHA) sent an ERAT team to help assess the damage. It has also deployed three generators. More relief items, said ASEAN reports, are on the way (online: 〈http://www.asean.org/news/asean-secretariat-news/item/asean-supports-the-typhoon-affected-communities-in-the-philippines〉). On 28 December, ASEAN, through AHA, delivered 3,000 rice bags to the Philippine Department of Social Welfare and Development, by way of a contribution of $100,000 to the United Nations World Food Programme (WFP) (online: 〈http://www.wfp.org/content/philippines-aha-centre-provides-food-support-typhoon-bopha-through-wfp〉).

154. See supra note 1.