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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.

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

I. MAKING SENSE OF EVOLVING REGIONAL CAPABILITIES

Never before had we carried out such an ambitious and large-scale undertaking. But buttressed by the Government of Myanmar and the international community, ASEAN's confidence grew and our association was “baptized” by the Cyclone that wreaked havoc on one of our Member States.

Surin Pitsuwan (ASEAN Secretary-General, 2008–2013)Footnote 1

If there is something that all commentators agree upon with relation to Cyclone Nargis (Myanmar, 2008), it is that the crucial agent in its management efforts—the agent “breaking the impasse”—was not the national government, local non-governmental organizations (NGOs), or international humanitarian organizations, but a regional organization—the Association of Southeast Asian Nations (ASEAN).Footnote 2

ASEAN, it is commonly agreed, made well-timed use of its privileged relationship with both the government of Myanmar and foreign actors to negotiate and facilitate a significant relief effort in an unfavourable political context. Through this experience—so the consensus goes—ASEAN has showed new and improved capabilities, which not only helped drive forward effective international intervention in this case but will possibly affect future integration processes in the region.Footnote 3 For a relatively passive and traditionally non-interventionist organization, ASEAN has shown a remarkable capacity to intervene successfully in a major crisis within its most problematic Member State.Footnote 4 While critics stress the limits of ASEAN's ability and willingness to confront humanitarian crises in more politically contentious areas in Myanmar and beyond, few doubt the positive outcome of this shift or question its significance.Footnote 5

This broad consensus is a good reason for critical reflection. A wall-to-wall consensus on a momentous shift in ASEAN's regional and international position raises natural suspicion. Does the claim stand or is it merely rhetorically constructed? An international actor publicly acknowledging itself as “baptized” by a natural disaster to the praising voices of most involved onlookers is a cause to ask not only whether this transitional claim realistically stands, but mostly what was the context in which it was possible to be made.

One can identify three competing but complementary explanations of the significance of ASEAN's role in managing Nargis. The first is political: Western invocation of the humanitarian principle of the “responsibility to protect” caused a negative reaction from Myanmar's military regime. Perceiving a threat of foreign intervention, it responded by shutting its borders to humanitarian assistance—an invocation of its sovereignty. This opened a political opportunity for ASEAN to strengthen its position both internally (towards Member States) and externally (towards international actors—mostly Western governments and the UN).Footnote 6

The second is normative, or legal: ASEAN's management position on Nargis, according to this interpretation, reflects a normative shift towards the acceptance in Asia of an emerging norm of the responsibility to protect. This global norm, rooted in the idea of sovereignty as responsibility, was localized by ASEAN's stand in the crisis. ASEAN's “baptism” is both a proof of an acceptance of the norm and the mechanism through which the norm was localized.Footnote 7

The third explanation is institutional: what has developed in the crisis was not the political position of ASEAN nor its normative commitments (though both might have been affected too) but an institutional capacity—in reaction to the crisis, ASEAN has successfully put in place a set of institutional mechanisms for handling disaster on a regional level.Footnote 8

Although all these interpretations are helpful, there is something missing in each. The political interpretation is successful in questioning the relevance of ASEAN's new management capacities for other pressing humanitarian crises in Myanmar, namely those that were caused by the Junta's abuses in its struggles against the opposition and in the ethnic armed conflicts. Since the West is not as eager to invoke the responsibility to protect in such cases, it is unlikely that the new regional capacities will be available when they are most needed. Still, understanding ASEAN's humanitarian “baptism” as a façade to the realpolitik of conservative sovereign protectionism too easily rejects the normative claims for regional humanitarianism which are flagged by ASEAN and many others.

The second normative interpretation is particularly sensitive to these self-pronouncements. But it is limited by the fact that ASEAN (as well as almost every other viewer in the region and beyond) effectively rejected the application of the responsibility to protect in this case. ASEAN's capabilities were understood to be a non-legal, diplomatic alternative to that invocation. Arguing that the responsibility to protect was localized by its rejection is a bit of a stretch.

The third institutional interpretation is helpful in highlighting the technical, non-rhetorical aspect of the shift. But it is limited in exposing the political and legal implications that the institutional developments may bring with them. For one, ASEAN's commitment to the normalization of institutional capacities for the sake of regional integration is far from technical.Footnote 9 In fact it has created expectations for legal and political implications not only in Southeast Asia but also globally.

What follows is an attempt to suggest an alternative analytical framework that combines some elements of all these interpretations in order to throw light on a particular type of legal politics that implicated ASEAN's response: the legal politics of jurisdiction. 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.

The claim is twofold. First, I claim that this fundamental jurisdictional problem, the problem of access, is the key to understanding the evolution of Nargis because of the way it politicized and globalized the crisis and at the same time provided opportunities for different involved actors to shape its possible solutions (Part II). On this background, I then claim that ASEAN could present its unique regional capabilities as effective, and legitimate, and to position them as a standing normative option in the emerging legal policy field of global disaster management (Part III). The jurisdictional problem of access generated a politics of opportunity that enabled ASEAN's position to take concrete and promising shape.

Before we move to tell the story of Nargis and describe the shape of its regional management, some theoretical background should be presented in order to clarify the questions and concepts that inform the reading of this case.

In classic legal and political theory of emergencies and emergency powers, emergencies almost belong to sovereigns. Sovereigns are even defined, in Carl Schmitt's famous formulation, as those who decide that there is an emergency and what should be done to handle it.Footnote 10 Even when Schmitt's extreme formulation is rejected, contemporary theory of emergency is still focused on sovereign jurisdiction at the centre of its concern. Emergencies allow sovereigns to manifest the exclusivity of their jurisdiction (in subject areas such as “national security” or in geographical areas such as “sovereign territory”) and this is dangerous to the freedom and rights of their people.

This formulation pulls the debates in this area towards an artificial dichotomy. Either “jurisdiction” is upheld in an emergency and the sovereign successfully assumes power over his territory and deals with the urgency of the situation, or sovereign jurisdiction is challenged when the sovereign fails to do so or abuses his position.

But this assumption, strongly entrenched in the theory of emergency powers both domesticallyFootnote 11 and in international lawFootnote 12 has limited explanatory power. Many emergencies expose problems and contestations over questions of jurisdiction rather than clear sovereign exclusivity and control.Footnote 13 Instead of focusing on the dichotomy between sovereignty and its limits in emergencies, between sovereign control and sovereign abuse, this paper suggests that the study of emergencies should extend its view to the flexible and dynamic politics of jurisdiction, to the possibilities that it raises for the resolution of real-life emergencies, and for the further development and normalization of legal and political norms of emergency response.

But what is jurisdiction? Surely a complex concept, jurisdiction refers in this paper quite simply to the power and the authority to prescribe and enforce laws and to administer operations of power in a given area.Footnote 14 This power or authority is generally exercised by states through their legal institutions rather than by non-state actors such as local community organizations or international and regional organizations.Footnote 15 But in emergencies and crises, this clear-cut assumption may be shaken or questioned—raising what this paper refers to as problems of jurisdiction.

Problems of jurisdiction are challenges to the clear-cut exercise and prescription of law over a territory. Emergencies tend to raise such problems because under extreme conditions of crisis, the underlying coherent and stable logic of modern territorial jurisdiction is often questioned.Footnote 16 A good example for a jurisdictional problem is the problem of access. The urgency of providing relief and the failure of efficient sovereign control over a quickly evolving humanitarian crisis destabilizes the clear-cut exercise of effective control over a jurisdiction (or in this case, makes apparent an existing instability). This, in turn, raises the opportunity for what is called in this paper “jurisdictional politics”, the politics that is generated in the interaction between different responders to a given jurisdictional problem.Footnote 17

The term “jurisdictional politics” relates to the dynamic relations and contestations over the terms of response to a particular jurisdictional problem. It is expected to come into play whenever there is an apparent and urgent jurisdictional problem. At such moments, different actors—not only the state's legal institutions—are presented with opportunities to influence the normative and institutional landscape. That is how these actors may become relevant in solving jurisdictional problems even when territorial jurisdiction is generally exercised by sovereigns. Note that claims of non-state actors, such as local community organizations, international and regional organizations, and even the “global community”, for access are not necessarily claims to replace state jurisdiction, they typically are not. Instead they are often attempts to shape it, or in this case—in the words of all involved in Nargis—to “open it up”. Here they have the opportunity to contest and to influence the shape of the space or spaces of jurisdiction.

To be sure, what follows is not a straightforward legal or normative analysis. It is a purely descriptive attempt to situate ASEAN's involvement in Myanmar's disaster within the legal and political context that this disaster brought to the fore.Footnote 18 Rather than evaluating the weight or judging the justifiability of each “jurisdictional claim” and isolating its influence, the aim here is to expose the story of ASEAN's success in Nargis as embedded in a multiplicity of voices. As the crisis evolved, each claim was confronted by a competing claim and it was this background of contestation that made possible each of the different proposals, including that of ASEAN. Crucially, what is seen by some as an ad-hoc “exceptional” solution to a diplomatic deadlock was much more influenced by the shadow of legal conditions raised by the problem of access and its alternative solutions. This emergency, its development, and the way it was solved, cannot be understood by a theory of emergencies as either proving sovereign control or the lack of it. Rather, while Myanmar's exclusive territorial control was contested here, its sovereign jurisdiction was reframed as “opening up” to the world.

The paper tells the story of Cyclone Nargis in two parts. The first part unravels the jurisdictional politics that this disaster raised. This is the politics of access of aid to the affected area with the central question being how to “open up space” for assistance that would be freely delivered to the suffering victims in view of Myanmar's sovereign control over movement into and within that area. I tell this story by focusing on a range of contesting voices, claims, and practices regarding access. One of these voices, and arguably the one that was most effective in actually solving the problem of access, was that of the regional organization, ASEAN. In Part III of this paper, I try to make sense of ASEAN's successful role by focusing on its expressed capabilities at three different stages of the disaster management—in its anticipation and preparation, in real-time response, and in recovery.Footnote 19

If we want to find a basis for assessment, comparison, and even prediction of the way that regional intervention in crises will vary, we must, I conclude, be particularly sensitive to the capabilities of regional organizations to solve problems of access as well as other jurisdictional problems that emergencies tend to raise.

II. CYCLONE NARGIS: THE EVENT AND ITS JURISDICTIONAL POLITICS

Tropical Cyclone Nargis, the largest natural disaster in Burmese history, started as a deep depression in the East Indian Ocean where it was first identified by the Indian meteorological department on 26 April 2008.Footnote 20 The cyclone then struck Myanmar's Irrawaddy Delta on 3 May 2008, killing approximately 140,000 and leaving much of the region under water with more than two million people displaced.Footnote 21 But contrary to the traditional notion of extreme emergencies calling for and even proving jurisdictional sovereignty, in this case the gravity of the disaster and the urgency of the needed response provided for a dynamic variety of transjurisdictional claims regarding (control over) access of aid to the affected areas. While the Junta's national sovereignty claim for control over its own disaster was almost immediately confronted by a strong international humanitarian call for outside intervention, the jurisdictional question of access was answered in the language of “opening a humanitarian space”. This language became early on in the crisis the common spatial metaphor, “a doctrinal” mantra common to all.

I will now attempt to tell the story of Nargis's evolution as a jurisdictional problem with five different responses that provided distinct and partly-competing solutions: (1) the government's attempts to establish sovereign control over “its own” disaster; (2) the competing but conservative claim for access by international disaster response agencies and organizations; (3) the more radical claim for access of “a global community” based on the responsibility to protect doctrine; (4) the claim of “local”, “community based” access of first responders and survivors; and (5) the regional suggestion which proved particularly successful in enabling “access”.

As the crisis evolved, these competing and often corresponding options unravelled, widening the scope of discussion over access to jurisdictions of disaster, not only for Myanmar's cyclone but also for future crises in Myanmar, in the region, and beyond.Footnote 22

A. Myanmar's Response—Sovereign Jurisdiction over the Emergency

Notice to philanthropists, donors … These days, we have finished providing emergency relief aid to cyclone victims and are helping victims re-establish family life and rebuild their houses. Because philanthropists have been donating items to people along the roads those who are not cyclone victims including both adults and children wait for donors on the streets. This destroys people's motivation to return to their previous vocations. Philanthropists, therefore, should not donate items randomly to people along the roads; instead they should contact cyclone relief aid committees in related townships, quarters, and villages to inform them and to donate items through those committees. This will prevent foreign and local tourists from looking down on Burmese and lowering our dignity. We request that people work with national consciousness. Philanthropists can donate items easily through Hlaing Thaya Township, Dagon Aye Yar Highway Gate administrative office. Township Peace and Development Council.Footnote 23

Myanmar was, at the time of the disaster, an isolated jurisdiction, clearly susceptible to outside criticism of the legitimacy of its rule;Footnote 24 moreover, when the cyclone struck, the Junta was engaged in attempts to boost its legitimacy in the aftermath of the 2007 monk uprising that it brutally suppressed. A constitutional referendum was scheduled to take place on 10 May 2008.Footnote 25 The catastrophe was an extremely unwarranted development on the Junta's agenda.

This was the condition upon which Myanmar first applied its sovereign control over the disaster, which was not a very good place to start. A secluded regime, with very limited resources and a pressing and unpopular timetable for a referendum could easily fail in holding a claim of domestic control over its own catastrophe. With very limited capacity to effectuate it or draw internal support to back it, the gaps in the regime's jurisdiction were already exposed before the cyclone made landfall. And indeed the response was soon seen to be too slow, obstructive, and neglectful.

But sovereign control was exactly what Myanmar was trying to express in this crisis. Two days before the cyclone made landfall, Myanmar's Department of Meteorology and Hydrology received information from the Indian department about a tropical storm approaching.Footnote 26 Though opinions vary on the level and content of pre-Nargis warning, what is clear is that Myanmar's weather agency received the data from the Indian agency and transferred it by state media to the public. On 2 May, The Mirror, a major daily newspaper, published an interview with the head of the department, U Htun Lwin, in which he warned of a storm approaching with 160 kph winds.Footnote 27 But this was manifestly too little.Footnote 28

At 8.30 a.m. on 3 May, Prime Minister Thein Sein turned to the government's default emergency plan—declaring a state of emergency in cyclone-affected regions and activating the National Disaster Preparedness Central Committee (NDPCC) in the capital, Nay Pyi Taw.Footnote 29 This meant assigning rescue, relief, and rehabilitation tasks to ministers and deputy ministers. Later that day, the prime minister, along with high-ranking military officers and cabinet ministers, relocated to Yangon where the NDPCC established an office “to carry out rescue measures, coordinate the disaster response and closely supervise the efforts”. The government also initially allocated five billion kyats to carry out emergency relief operations.Footnote 30

On 5 May, while these initial activities were in motion (but still a very limited portion of the population affected by the cyclone was provided with any kind of assistanceFootnote 31) representatives of the government met with UN officials and announced that Myanmar would accept aid, but only bilaterally.Footnote 32

While negotiations were slow and pressure was escalating, the regime was utilizing its territorial control over the affected areas by managing the entry of foreign help on the one hand and by restricting movement within the areas affected on the other.

These were not particularly extraordinary measures in the context of Myanmar's governmental practices of decision-making. The decision was taken by the Myanmar embassy in Bangkok to remain closed on Friday 9 May (then the normal weekend closure), and on Monday 12 May, a scheduled holiday.Footnote 33 The government gave entry preference to Asian over Western staff, in particular to relief organizations from ASEAN states.Footnote 34 Cumbersome customs clearance procedures and bureaucratic delays were, again, not unusual behaviour for the Myanmar government. On 9 May, the UN World Food Programme (WFP) temporarily halted its airlift supplies because government authorities had attempted to seize the shipments and control its distribution.Footnote 35 Later that day, following negotiations, the government agreed that the WFP could distribute its own aid but many other bureaucratic obstacles were maintained.Footnote 36 On the local front, the government very early on started to erect road and river checkpoints to regulate aid and population movement within and into the affected areas. Allegations that military officers diverted aid supplies for personal, political, or military purposes were strongly denied and the NDPCC announced that it would investigate and punish any offenders.Footnote 37

While obstructing the inflow of outside relief, the government also controlled the media, extensively covering its own relief operations and portraying the military clearing trees and debris, handing out supplies, and visiting survivors.Footnote 38 Foreign media was denied access to affected areas.

Finally, the government also attempted to manage the movement of displaced survivors. Two days after the cyclone, Prime Minister Thein Sein announced that there were over a million displaced and that they had been rescued and sent to temporary shelters at twelve frontline camps, fifteen transit camps, and five base camps.Footnote 39 Later in May, authorities started to force the displaced to return to their original villages, mostly uninhabitable.Footnote 40

These were the only strictly “territorial” practices that played any significant role in Nargis's management: slow, obstructive, controlling. Almost immediately, classic emergency measures as well as the idea of sovereign control over one's own emergency were marginalized by other actors who made clearly competing authoritative claims of emergency response. As the obstruction and failure became known—and it did not take long before it did—alternative claims for jurisdictional access were raised, clearly contesting the sovereign exclusivity on the issue of access.

B. International Disaster Relief Organizations—Professional Jurisdiction and International Disaster Relief Law (IDRL)

We negotiated a space with the military where we deliver the aid, not them. And we're getting through those military checkpoints. But this is causing deep frustration and even guilt for our workers that they can't reach more people. The [military's] narrative is that the military created the nation, protects the nation, and will save the nation without ex-pats coming in to do it. It would be incredibly helpful if we could get ex-pats in because of their expertise in water and sanitation systems, but we just cannot get them in. Most countries understand we are not out to breach national sovereignty and only want to do for you what you can't do for yourself. The junta simply doesn't understand that humanitarian idea. They won't trust us.Footnote 41

We are having useful and constructive discussions with the authorities of Myanmar … It is moving in the right direction. We want it to move much faster clearly. But I'm not sure it would help at this moment at least to embark on what could at least be seen by some people as a confrontation.Footnote 42

The first and obvious claim came from the vast and loosely connected network of international disaster relief organizations.

As indicated above, on 5 May UN officials met with government officials “to coordinate response” to the disaster. According to Chris Kaye, country representative of WFP and then acting UN humanitarian co-ordinator in Myanmar, the government was asked three questions: (1) whether it would be willing to facilitate the co-ordination of international assistance; (2) whether it would agree to waive all taxes, duties, and customs on all relief items; and (3) whether it would be willing to relax procedures on granting visas for expert relief personnel to quickly enter the country.Footnote 43

With these three typical international disaster relief operations concerns—centring on co-operation in achieving access through consent and invitation and on achieving effective foreign aid delivery through the relaxation of tax and customs rules—the first jurisdictional challenge to Myanmar's exclusive control unfolded. It came from the net of UN humanitarian clusters, specialized agencies on the one hand and a thick (though not unified) network of international NGOs on the other. Among these there was a division between foreigners and those activists working for international agencies who had local branches operating regularly in Myanmar.Footnote 44 The latter were granted access based on their existing certificates.Footnote 45

From the very first days, UN agencies and international relief organizations established working “clusters”, collectives of agencies working in key areas such as health, shelter, and child protection.Footnote 46 But what should have been a highly co-ordinated, rapid relief operation, soon devolved into a situation in which relief supplies and emergency aid specialists waited for days and weeks while the government delayed and limited access to cyclone affected areas.

The jurisdictional claim that this group of international agencies and disaster organizations brought forward was not, in itself, very radical. The ideal behind these types of international professional humanitarian activities is functional, technical, and pragmatic. Since disasters cause human suffering at a scale that exceeds the ability of sovereign states to provide effective relief, outside technical help must be available.Footnote 47 This is a limited, conservative claim for access based on technical expertise and invitation—any competition and rivalry is largely denied.Footnote 48

But in Myanmar's case, denial of competition over the management of the disaster was particularly difficult. Instead of co-operating, the Myanmar regime brought ambiguity, awkward resistance, and much too slow a response to the urgent need of the agencies to provide aid, which is embedded in the functional operation of the professional emergency response. Daniel Collision from Save the Children testified:

The agencies … congregating in Bangkok waiting to get into Myanmar … [w]ere going around like hornets in a nest as there was no pressure release. There was a huge build-up of people in Bangkok but nowhere for them to go.Footnote 49

Eager to do their job, these agents of relief were becoming more and more agitated:

Since success in responding to and managing disasters typically is measured in the speed with which lifesaving aid is delivered, the global humanitarian community was anxious to get people on the ground to accelerate the relief and recovery process. They were growing increasingly agitated and vocal in their criticism that international aid workers were not being permitted access …Footnote 50

This disaster was becoming a crisis of aid for international agencies. In their work-charts, access is to be guaranteed based on consent and local initiation, effectiveness is to be achieved based on technical and scientific knowledge, protocol, experience, practice, and negotiation. When these are hindered or blocked, or when they are ambiguous (as happened in this case), the system is supposed to enter a diplomatic mode of negotiation and/or lessons-learned mode of improvement and norm-making. But the protocol did not fit this disaster. Millions of people were waiting for aid which the agencies, “like hornets in a nest”, could not provide. Politically, therefore, we are talking about a thick and influential body of institutional and private actors, formally with no territorial jurisdiction whatsoever—but with a strong claim of competence to intervene in disasters on the basis of consent and expertise.

C. The Responsibility to Protect—A “Global Community” Jurisdiction

We are seeing at the United Nations if we can't implement the “responsibility to protect”, given that food, boats and relief teams are there, and obtain a U.N. resolution which authorizes the delivery (of aid) and imposes this on the Burmese government.Footnote 51

We have to use all means to help those people. The United Nations Charter opens some avenues if things cannot be resolved in order to get humanitarian aid to arrive.Footnote 52

As the crisis of aid developed, a second and more explicitly interventionist claim for access came from the “global community”—from, on the one hand, international media and human rights NGOs, and on the other, from sources within Western governments, commentators, and politicians, dominantly French, British, and American.Footnote 53 These claims expressively brought forward a vision of global jurisdiction under the principle of responsibility to protect.Footnote 54

The claim was strongly legalistic: the “international community” is committed to an emerging norm, which ties sovereignty to responsibility for and protection of the population. If the Myanmar regime is blatantly unable or unwilling to provide relief to its population's extreme suffering caused by the cyclone, the burden is on the international community to provide it even if that requires some form of intervention.Footnote 55 If the Myanmar generals continued to block, hamper, and obstruct, then, in the name of humanity, some international action should be taken against their will—like military air-drops, supplies being landed from ships—to get aid to huge numbers who desperately need it right away: “It would only take half an hour for the French boats and French helicopters to reach the disaster area and I imagine it's the same story for our British friends.”Footnote 56

And American commentators echoed this announcement, invoking the US military ability to answer the call of urgency:

As it happens, American armed forces are now gathered in large numbers in Thailand for the annual multinational military exercise known as “Cobra Gold”. This means that the Navy warships could pass from the Gulf of Thailand, through the Straits of Malacca and north up the Bay of Bengal to the Irrawaddy Delta … The magic of this is that an enormous amount of assistance can be provided while maintaining a small footprint on shore greatly reducing the chances of clash with the Burmese armed forces while nevertheless dealing a hard political blow to the Junta. Concomitantly, drops can be made from directly overhead by air force without the need to militarily occupy any Burmese airport.Footnote 57

Imagining a military answer, an occupation for the sake of forced relief (authored by global forces reflecting global concerns for local suffering) was allegedly based on the emerging doctrine of responsibility to protect. However, this norm was originally not focused on catastrophes or on human security generally but on protecting vulnerable populations from “genocide, war crimes, ethnic cleansing and crimes against humanity”.Footnote 58 The task was originally, as conceded by one of its prominent activists and drafters Gerald Evans, to issue a new way of talking about intervention, not as a “right” but as a “responsibility”, and a new way of talking about sovereignty, not as “control” but again as “responsibility”, in view of the UN Charter but also of states’ practice since its origination, their new focus on human rights and human security.Footnote 59

And so, in this emergency, the responsibility to protect was more powerful as a political claim and remained rather scant practically. The first obstacle was the problem of definition and application.Footnote 60 Could the behaviour of the generals, arguably neglectful, be characterized as “a crime against humanity”? This was contested both legally and politically, although it did seem to raise at least “a prima facie case to answer”.Footnote 61 The other obstacle was the UN, which was not supportive of the idea of forced intervention, and especially the great resistance of China and Russia as well as other regional voices.Footnote 62

But what is clear is that in this crisis, the responsibility to protect appeared as a forceful image of global jurisdiction in the context of disasters.Footnote 63 If it did not lead directly to any political decision, it had clearly intensified the crisis, further politicized it, and globalized it. The mild conservative claims of humanitarian assistance, technical, focused on experts, and diplomacy were overshadowed here by a proposal, much more existential and expressive in nature, which tied territorial sovereignty to a legal and moral ideal of care, responsibility, and protection, thereby expanding the scope and meaning of Myanmar's disaster much beyond its borders.

D. Local Organizations—Community-centred “Victim” Jurisdiction

It was Cyclone Nargis which created the space for us to engage in humanitarian work, not the government.Footnote 64

We had no experience of working in a group before—the authorities were always suspicious. Before the cyclone, we offered educational programs and trainings but we were not allowed to do humanitarian work. Cyclone Nargis created a space for us to engage in humanitarian work, not the government. The 2007 Monk's uprising also helped—the uprising and Nargis gave big shocks to the government.Footnote 65

There is little question that many of the “first responders” to the cyclone helped save and sustain the victims of the disaster. Buddhist monks, whom the authorities had repressed and intimidated since their leading role in the 2007 anti-government demonstrations, often took the lead, as did Christian church groups and other community organizations.Footnote 66

Besides the global, large-scale, all-encompassing answer to the problem of access in Nargis, there was also strong visibility to the opposite jurisdictional scale—the local and immediate environment of “first responders”, “community activists”, or “civil society actors” (dependent on the relevant jargon).

There is no report on Nargis that fails to emphasize “local voices” as a crucial, immediately effective, and especially legitimate answer to the government's slow, hesitant, ambiguous, neglectful, and controlling response.

From the very first moments, local groups and individuals, organized and unorganized,Footnote 67 religious and secular,Footnote 68 engaged in response activities which were deemed much more effective and much more welcomed than the heavy-handed, inflexible, and paranoid strong central government.Footnote 69

Civil society groups and individuals raised money, collected supplies, and travelled to the badly affected parts of the Irrawaddy Delta and around Rangoon to help survivors. As the relief and recovery efforts gained pace, dozens of community-based organizations and civil society groups organized themselves and “gained unprecedented experience in providing humanitarian relief and initiating projects”.Footnote 70

Nargis was an opportunity for these “local” actors to emphasize their significance, their say, their care, and their impact in view of the government's failures: “I want to save my own people. That's why we go with any donations we can get. But the government doesn't like our work. It is not interested in helping people. It just wants to tell the world and the rest of the country that everything is under control and that it had already saved its people.”Footnote 71

This “local revival” in the disaster was immediately spotted by the Myanmar government and resisted. The government attempted to restrict informal, local activities, confining the entrance of local activists to affected areas, and even arresting local “humanitarian workers” for leading the “civil society” response.Footnote 72 But these attempts only served to strengthen the unprecedented focus that localist claims and local organizations received in post-Nargis reports, activities, and especially in donors’ attention.Footnote 73 In the years since Cyclone Nargis, it is commonly mentioned, the number of civil society groups in Myanmar has multiplied enormously and taken many forms, including local NGOs (LNGOs), faith-based organizations (FBOs), and community-based organizations (CBOs).Footnote 74

That the local claim of capacity, immediacy, and legitimacy was seen by many as a compelling answer to the problem of access, effectively competing with the failed state response, can be seen by two further post-Nargis developments: one is the fact that all outside actors assessing the management of Nargis vehemently competed over the quality of voice they give in their post-Nargis assessments to localities, victims, communities, and empowerment.Footnote 75 Second is the professional emphasis in international disaster literature since Nargis on local empowerment as a specific if not major contribution of foreign aid expertise. The idea that disasters cannot be managed from “outside” but also cannot be controlled by centralized, blocking sovereigns, has become one of the key features in the international relief literature and norm-making processes post-Nargis.Footnote 76

III. ASEAN—THE REGIONAL INTERVENTION

Arguably, the last “answer” to the jurisdictional problem of access—the regional answer—proved to be the most directly successful one. In view of the crisis of aid, and although known for its traditional anti-interventionist position, ASEAN engaged in an unprecedented diplomatic and administrative mobilization effort.Footnote 77 ASEAN had initiated, negotiated, and put in place a set of institutional mechanisms for co-ordination and relief (ERAT, AHTF, TCG, PONJA, PONREPPFootnote 78). These were effective in overcoming the diplomatic and humanitarian deadlock.Footnote 79 When Secretary-General Pitsuwan dramatically announced that ASEAN had been baptized by Myanmar's storm,Footnote 80 in more material terms this meant that ASEAN can take credit for facilitating the issuance of thousands of visas for humanitarian workers,Footnote 81 carrying through a large-scale collaborative needs assessment process,Footnote 82 mobilizing support and funding from international donors,Footnote 83 and maintaining a high level of energized aid projects over a period of more than two years from the initial relief stages to the early, medium-, and long-term recovery.Footnote 84 It has also acquired a name for itself for creating and possibly maintaining a bridge between Myanmar and “the rest of the world”.Footnote 85

But what was the content of ASEAN's regional claim? Was it in effect a regionalization (or localization) of the global norm of responsibility to protect as some international observers claimed?Footnote 86 Was it simply a political opportunity, which the rather weak and unimportant organizationFootnote 87 seized, perceiving a threat of foreign intervention in one of its Member States, to strengthen its position internally and externally?Footnote 88 Or was it an invocation of the technical capacities of ASEAN as another foreign professional “crisis manager” invoking the normative framework of international disaster response in a more effective manner?Footnote 89

All these explanations are persuasive, but there were certainly more uniquely “regional” capacities that ASEAN could express and make use of in claiming access, which were specific to its position as an organization responding to a domestic disaster in one of its Member States.

In the next few pages I try to capture the nature of ASEAN's role by looking at its expressed capabilities at the different stages of the disaster's management: (1) at the anticipatory stage, it is tied to a history of crisis experiences and commitments; (2) at the response stage, it focuses on an intimacy of network connections in the region and beyond; and (3) at the recovery stage, on an ethos of inclusiveness in its international relations. I conclude by suggesting that Nargis presented for ASEAN an opportunity to perform its unique regional capabilities and to position them as a standing normative option in the emerging field of global disaster management.

A methodological note: in the following sections, I try to uncover the system of thought and forms of value through which ASEAN has conceptualized, reflected, and rationalized its own involvement in Nargis. I therefore rely on ASEAN's self-presentations under which it has expressed its own abilities as unique. This method comes at a cost. One could argue, plausibly, that ASEAN's officials’ perspective is likely to be a self-serving presentation of facts and processes.Footnote 90 But the value of studying ASEAN's self-presentation is not to question whether its involvement in Myanmar's emergency was in reality successful or not. Many commentators have argued that it was and there is little question that it did “break the impasse”, or “deadlock”, in the sense that it created conditions for access of relief experts and resources to the affected areas.Footnote 91 Instead, it is an attempt to analyze what kind of opportunity Nargis presented for ASEAN. Since what is at stake is the meaning of contested practices, the status of ASEAN's self-proclamations should obviously be questioned. But the aim here is not to engage in such a critique, but to provide a preliminary but more accurate picture of ASEAN's proclaimed, and much applauded, stand in this crisis: What, in ASEAN's self-reflection, made it a particularly successful responder in Myanmar's disaster?

A. ASEAN as an Anticipator—Experiences and Commitments

Here, I want to suggest that ASEAN's significant role in responding to Cyclone Nargis is to be seen in the context of conditions and constraints it had in the pre-Nargis period. At this period, ASEAN is as an “anticipator”, developing certain sensitivities towards certain “regional” vulnerabilities. ASEAN had in its toolbox (1) experiences of crisis and (2) certain legal commitments to the containment of regional threats that made it an especially capable agent for intervening in Nargis.

1. ASEAN's experiences of “regional threats”

From its inception, the need to ensure stability in the context of regional threats and instability was a key energizing theme in ASEAN's institutional and legal development.Footnote 92 In 1967, the threat was another military confrontation between Indonesia and Malaysia (after the 1963–66 Konfrontasi), and the Preamble to the ASEAN Declaration spoke of how mindful members of the new organization were about “the existence of mutual interests and common problems” and how, “in the spirit of equality and partnership”, they sought to “contribute towards peace, progress and prosperity in the region”.Footnote 93 Four years later, the five Member States issued the Kuala Lumpur Declaration, expressing ASEAN's hope “to secure the recognition of, and respect for, Southeast Asia as a Zone of Peace, Freedom and Neutrality, free from any form or manner of interference by outside Powers”.Footnote 94 The force behind this renewed regional activity was again a sense of threat to regional stability—the US looming withdrawal from Vietnam and the “US-China rapprochement”. Next, in 1976, the Bali Declaration was a response to another strategic political threat in the aftermath of the Vietnam War, the new regional geopolitics, and the threat of China's and Russia's growing involvement in the region. ASEAN's response to this new strategic context was to signature two documents: the Declaration of ASEAN Concord and The Treaty of Amity and Cooperation in Southeast Asia (TAC). These documents again stressed a common commitment to security and stability in response to a conceived outside threat of instability.Footnote 95 These regional order norms (stability, peace, and non-intervention) and practices (the practices of announcing commitments to the norms by declarations and institution-making) are seen by many as expressing a strong regional coalition and a co-operative regional order.Footnote 96 In the words of Khong Yuen Fong in his evaluation of Michael Leifer's scepticism about ASEAN's credibility in promoting such order:Footnote 97

The ASEAN-5 managed to protect themselves from “another konfrontasi” (where a regional hegemon-would-be attempts to militarily intimidate its neighbours); “another Vietnam” (where civil war begets superpower intervention); and “another Corregidor” (where a neighbouring state provides military aid to one's insurgents). Using these “big ticket items” or major disorders all of which ASEAN the organization was set up to prevent—as our criteria for regional order, it is possible to claim that there has been substantial regional order in peninsula Southeast Asia since the late 1960s.Footnote 98

Another big wave of institutional-building and mobilization followed a new perception of vulnerabilities in the post-Cold War era, and later in the Asian economic and financial crisis of 1997–98.Footnote 99 A perception of instability and a threat that outside crisis management activities were damaging to regional strategic interests and local markets was a significant rationale behind the wave of institution-making in the 1980s and 1990s in the Asia Pacific, in which ASEAN played the leading role from the Asia Pacific Economic Cooperation (APEC, 1989), the ASEAN Free Trade Area (AFTA, 1992), the ASEAN Regional Forum (ARF, 1994), and the ASEAN + 3 (APT, 1997).Footnote 100

This enlargement story is mentioned to suggest that ASEAN was seen to be regularly invested in practices that respond to regional “risks” by certain structures of commitment, norm-making, and institution-making. This mode of engagement is an important factor in assessing ASEAN's capabilities at the anticipatory stage. This is not just another regional organization among many; it is one that is widely acknowledged in terms of its regional crisis management motivations and innovations.

2. Commitment to legal efforts in international disaster response

But ASEAN has also had more specific emergency management sensitivities which it has attained through years of mostly legal and institutional engagements in the field of international disaster response. In the 1976 Declaration of Concord, the Member States made their first joint commitment to “extend, within their capabilities, assistance for relief of member states in distress”.Footnote 101 In the same year, they also adopted the Declaration on Mutual Assistance on Natural Disasters, reiterating that commitment and calling on both transit and affected states to take the necessary administrative steps to facilitate the movement of relief vehicles, personnel, goods, and equipment.Footnote 102 Three years later, ASEAN adopted a binding Agreement on the ASEAN Food Security Reserve, committing members to maintaining dedicated food reserves in case of emergency need by another Member State.Footnote 103

Renewed activity in this field led in the last few years, especially after the 2004 tsunami, to a set of agreements, policy instruments, and declarationsFootnote 104 which culminated in the ASEAN Agreement on Disaster Management and Emergency Response (AADMER).Footnote 105 This is a comprehensive and binding agreement which contains provisions on “disaster risk identification, monitoring, and early warning, prevention and mitigation, preparedness and response, rehabilitation, technical cooperation and research, mechanisms for coordination, and simplified customs and immigration procedures”.Footnote 106 The Agreement (drafted and quite swiftly acceded to in the wake of the 2004 tsunami and in connection with the Hyogo Framework)Footnote 107 also provides for the establishment of an ASEAN Coordinating Centre for Humanitarian Assistance on disaster management (AHA Centre) to undertake operational co-ordination of activities under the Agreement.Footnote 108 Under the Agreement, affected states commit to “facilitate the entry into, stay in and departure from its territory of personnel and of equipment, facilities and materials involved or used in the assistance”, exempt that assistance from taxes or charges, protect assistance personnel, goods, and equipment, and provide them with other “local facilities and services for the proper and effective administration of the assistance”.Footnote 109 These provisions apply not only to assisting states, but also to any “assisting entity” (defined to include “a State, international organization, and any other entity or person that offers and/or renders assistance to a Receiving Party or a Requesting Party in the event of a disaster emergency”)Footnote 110 whose assistance is accepted by the receiving state.

To sum this up, ASEAN had certainly not entered the scene in the management of Nargis with only a political will and a strategic mediating position. These must be understood within the political, legal, and institutional context of years of activities in both regional stability and disaster relief norm-making within the region and beyond. These activities are to be understood in the context of Nargis's “anticipation” stage. The regular “tension solving” role that ASEAN assumed over the years in relation to different types of regional threats and, more recently, specifically in the area of natural disaster response, are expected to be a crucial feature of an environment in which certain vulnerabilities encounter a disaster event.Footnote 111

B. ASEAN as a Responder—Personal Connections, Familiarity, Intimacy

Moving on from the pre-Nargis stage to the actual response and recovery stages, we can now understand why ASEAN's intervention was not in all respects “timely”. It took more than two weeks from the onset of the disaster (3 May 2008) to ASEAN's “emergency meeting” in which Myanmar was successfully pressured to “open up” access for aid (19 May 2008).Footnote 112 ASEAN was not responding first and foremost to Myanmar's natural disaster but more directly to the pressures of an international aid crisis and its implications in the region. It was responding—as it has done consistently from inception—to the threats of “global” intervention.

As soon as it had acknowledged that an aid crisis was in motion,Footnote 113 while a large international aid operation was gathering up in Bangkok, increasingly frustrated by Myanmar's reluctance to allow the free flow of personnel and supplies,Footnote 114 and as the international media, isolated from the main subject matter of the news, “pressed for solutions”,Footnote 115 an alternative response process was taking place between ASEAN's Member States and outsiders, and ASEAN's Secretariat.

In following this process on the basis of its own accounts, a gap becomes apparent between ASEAN's portrayal of its aid operation as a mechanically competent process, based on a set of efficient technical institutions that simply could not fail, and its portrayal of the moments of decision which are seen through a personal, not to say intimate, perspective.Footnote 116 Far from the story of a bureaucratically organized institution with clear procedural rules for disaster response and clear hierarchical decision-making processes, the story of ASEAN's identification of crisis and the decision to act in response is based on personal intimations and emotional fervour that are expressed between figures who are personally and professionally connected across global divides. This intimacy centres around two moments of response: (1) mobilizing ASEAN's decision to intervene and (2) mobilizing Myanmar's co-operation. In both “watershed moments” of the response, ASEAN's self-account is one of personal, professional connections built on friendship, familiarity, and trust.

1. The moments of decision and mobilization

The Secretary-General of ASEAN, clearly the central figure in the initiation of ASEAN's involvement, leads the way in describing the personal pressure he was faced with: “I was in Singapore two to three days after the Cyclone hit. I was confronted by the media [who asked], ‘What have you heard? What have you done? What will you be doing?’ ”Footnote 117 Numerous phone calls encouraged him to take swift action.

But who called? Who were the encouraging voices? Not many from the region, it seems. Not that they were not interested, but they were busy delivering bilateral assistance, which Myanmar accepted from its neighbours from the beginning.Footnote 118 Instead, it was “the world” who called. Lord Mark Malloch Brown of the UK government is a significant example: “He was quite familiar with the region and was working the phone. He called me and said, Dr. Surin, this is an extremely critical issue for ASEAN—believe me.”

For Surin, this call was meaningful far beyond relations with the UK. Malloch Brown, whom Surin knew well from his work in the United Nations Development Programme, was the voice of the world in the region:

I assume he didn't just call me, the Secretary-General of ASEAN. I am sure he was calling people in high places in the region expressing, at least from his perspective, a concern of the world, a concern of the European Union, a concern of the British Government. Major governments were all in touch. I think Mark Malloch Brown could say that it was not only the United Kingdom that he represented but also many of the EU States, Australia and New Zealand would be on board. I think he could say the Nordic countries would be on board. It was a frustration with a global dimension that we were faced with this problem.Footnote 119

And so the whole world enters ASEAN's Secretary-General's office through Malloch Brown's phone call, all frustrated voices knocking on ASEAN's door, acknowledging a partner for their efforts to save the victims of a natural disaster.Footnote 120 But the Secretary-General was not the only one in ASEAN to be connected personally on an intimate global level through which a frustrated call to save was expressed.

The second type of connection is based on professional experiences from previous disaster relief operations. Through their previous acquaintance in post-tsunami relief, UN and donors’ disaster agencies approached Kuntoro Magkusubroto, the director of the Indonesian Bureau for Recovery and Reconstruction Agency of Aceh and Nias, and encouraged him to offer assistance on the basis of the agency's experiences in Aceh. He appointed Heru Prasetyo, the director of international relations of the agency. Prasetyo himself had close connections in aid circles abroad. From his office in Jakarta, he thought, as he testifies:

“How can we share what we know?” Many of his associates working on the post-Tsunami response were eager to help in Myanmar and they were contacting him in droves. In particular, Australia and the Asian Development Bank (ADB) had been in touch. “They were contacting me as it was known that there was a trust between Indonesia and Myanmar. They wanted to help Myanmar after the Cyclone. So we started to look at the possible ways to do that. One of the links that I have was my relationship with the Department of Foreign Affairs in Jakarta. I thought we have all these friends who want to help, so I asked if we could use the good hands of the Indonesian Department of Foreign Affairs to channel this assistance into Myanmar.”Footnote 121

Again, the world's frustration pours in through the friendly phone calls to the desks of the disaster managers of the region who are mobilized to mobilize others. These intimate connections run deeper and solidify into Myanmar itself. Prasetyo recalls meeting UN Under Secretary-General and Executive-Secretary of the Economic and Social Commission for Asia and the Pacific (ESCAP) Noeleen Heyzer, briefing her and giving her a book about the Indonesian army in the relief operation in Aceh after the tsunami:

There were similarities between the situation in Aceh and in Myanmar. She later got an audience with the leadership of Myanmar and even met with the Prime Minister. I know she shared that book with the Myanmar leaders, which was helpful.Footnote 122

This book crops up again in Heyzer's reflections on her own role in motivating ASEAN's decisions. She recalls her personal thoughts of compassion towards the isolated government of Myanmar:

I was in Indonesia when the numbers of those who had died or were missing reached 100,000. No one had said anything at the time and the Government didn't want outside help. What crossed my mind immediately was how isolated the country had become, that there was a lack of trust of the outside world that had to be bridged, and I felt that ASEAN and the UN could play a very strong role behind the scenes to build trust and facilitate humanitarian cooperation.Footnote 123

Strong diplomatic connections at the top diplomatic level seem to be complemented by strong professional and bureaucratic connections on the administrative level. Adelina Kamal, head of the Disaster Management and Humanitarian Assistance Division of the ASEAN Secretariat, recalls that two months before Nargis hit Myanmar, the ASEAN Committee on Disaster Management (ACDM) decided to form a standby ERAT Team for the region under AADMER. This body was mobilized for Nargis and it was the first official international team that the government of Myanmar allowed in. Kamal recalls how ERAT was mobilized. A colleague from the ASEAN Secretariat texted her from ASEAN's meeting to ask if they could mobilize the assessment team:

“He told me that a senior official from the Foreign Ministry of Myanmar had approached him and asked what ASEAN can do and if ASEAN could mobilize an assessment team—I was surprised but I said, YES! In every ASEAN Member State, there is an ASEAN focal point for disaster management, and so although the ERAT team wasn't set up yet, I knew I could ask these focal points to mobilize their experts.” She adds, “While I was in Bangkok the next day in between meetings with the UN and World Bank, I called all the focal points from the taxi and asked them to mobilize their experts within 48 hours. The Government said they would be willing to grant access to the ASEAN team. I knew this was a great chance for the Nargis relief effort … The deployment was very swift.”Footnote 124

2. The moment of persuasion and intimidation

So, personal professional connections (both at the higher diplomatic level as well as at the lower administrative level) are stressed by ASEAN, unravelling the story of the moments of decision. But the most telling in this sequence of anecdotal moments of decision is the description of the “tense” emergency meeting which finally “broke the impasse”.Footnote 125 This was almost three weeks after Nargis and there was still a stand-off between the Myanmar government and the international community. The description of the meeting brings up a vivid image of unprecedented pressure on Myanmar by a group of unified foreign ministers. Not the “non-intervention” culture of the much criticized “ASEAN Way” but a direct engagement and personal, not to say familial, attack: “Everyone was deeply concerned and the messages delivered were clear and crisp … ‘I remember Indonesian Foreign Minister Pak Hassan asking Myanmar Foreign Minister Nyan Win what ASEAN meant to Myanmar and what Myanmar meant to ASEAN’ ”, Singapore's Foreign Minister, George Yeo recalls.Footnote 126

The dramatic scene that unravels in the Report's description brings to mind a family gathering in which one of the members is to be “put in their place” firmly and reverently. An atmosphere of respect towards Myanmar's foreign minister as an equal member of the family is diffused into a scornful (even shaming) reproach: with no playing around, Myanmar was given, so the Report goes, three options: (1) a UN-led mechanism; (2) an ASEAN-led mechanism; or (3) the responsibility to protect “with Myanmar standing the mounting pressure to open up alone, including the possibility that the international community would deliver aid without authorization”.Footnote 127

This was of course, not much of a choice. Myanmar went for the ASEAN-led option and the foreign ministers unanimously agreed to establish an ASEAN Humanitarian Task Force for the Victims of Cyclone Nargis, headed by Secretary-General Pitsuwan, as “ASEAN's first-ever collective engagement in disaster management”.Footnote 128

All through these “first ever” moments, what is clearly stressed is a network of social response relations in which friends from the world interact with friends from the region in an environment of personal trust and respect. ASEAN is expressing a unique socializing capability as a responder. And through stressing this unique capability its intervention takes shape.Footnote 129

C. Mitigation—ASEAN Expresses its Achievements Under an Ethos of Inclusion

ASEAN's mandate in the management of Nargis was formally ended by the decision of its Foreign Ministers Meeting on 19–20 July 2010, and by the closure on 31 July 2010 of the Coordinating Office of the ASEAN Humanitarian Task Force in Yangon.Footnote 130

At a book launch ceremony held at the sidelines of ASEAN's “Post-Nargis Lesson Learning Conference” in Bangkok, Surin Pitsuwan introduced the series of six books that ASEAN had published in the aftermath of its Nargis engagement:

The books are our contribution to the world … We have shared our lessons and good practices from the post-Nargis effort in Myanmar. We have learned that strong leadership and effective coordination mechanism is key for successful relief and recovery as demonstrated through a unique partnership between ASEAN, the Government of Myanmar and the UN.Footnote 131

The activity of post-crisis lesson-learning and reporting on the experiences of crisis management is an integral part of any aid operation. Because disasters are managed through the perspective of vulnerabilities, the process of analyzing failures and successes and airing assessments in discussion is seen as part of mitigation and recovery. Lessons learned from one disaster are to be incorporated into the environment of recovery in which new risks will be prepared for and responded to.Footnote 132

In this functional context, one should pay attention to ASEAN's own analysis of its lessons from the crisis. What comes up is a description of success which stresses ASEAN's capabilities under an ethos of inclusiveness, participation, and socialization. This ethos has many manifestations in ASEAN's self-explanation: (1) inclusiveness is seen as a technique of institutional design which enables effective coordination; (2) inclusiveness is also a culture of institutional empowerment; (3) inclusiveness is the innovational key for future response to aid barriers; and (4) inclusiveness is also and most importantly the key to future international relations with Myanmar.

1. Inclusiveness in design

ASEAN's description of the different institutional mechanisms that it initiated stresses their facilitative inclusiveness. ASEAN, it is stressed, had the power to bring together different actors and create the environment in which they could work together for the survivors. For example, the official co-ordination mechanism (of the AHTF) which is composed of Member State representatives, is assisted by an “advisory group” made up of “representatives of non-ASEAN neighbouring countries including China, India, Bangladesh, the UN, the Red Cross and Red Crescent Movement, the World bank, the Asian Development Bank and International NGOs (later joined by representatives from donor countries, including Australia, UK and Norway)”.Footnote 133 Another example: the Tripartite Core Group (TCG), which is the main operational task force, is designed to solve access problems—it is made up of nine representatives (three from ASEAN, the Myanmar government, and the UN) and it is chaired by Kyaw Thu, Deputy Foreign Minister of Myanmar.Footnote 134 The Report explains the innovative design:

Firstly, it was chaired by a representative from the government of Myanmar since typically the national government takes on the lead role following an emergency. Secondly, Ambassadors from ASEAN Member States added their respective political weight and diplomatic flair to the mix while the UN brought the perspective of the international community and contributed technical expertise on responding to a humanitarian emergency of such an immense scale. Lastly, everyone interviewed for this publication agreed that the TCG members were united in a common goal—to help the survivors of Nargis—and that first and foremost their mandate was founded on a humanitarian as opposed to political imperative.Footnote 135

This description of the TCG success focuses on the value of an orderly aid principle (that the local government is to take the leading role during an emergency) with the value of political influence (that the ambassadors embody) and a value of technical expertise (which the UN provides)—all in one institution that, due to its inclusive culture, is made to benefit from all of them.Footnote 136

2. Inclusiveness as an energizing institutional culture

Beyond technical design, the value of the inclusive culture is one of closeness, friendship, and empowerment. This strength of intimacy is described by the participants as overcoming Myanmar's suspicious negativity: “We never thought that we would be so close”, said Bansarn Bunnang, Thai Ambassador who served on the TCG:

This was unexpected. At first we thought it would be like a loose cooperation with the UN and the Myanmar Government. ASEAN taking the lead hadn't happened before so we didn't expect much at the beginning, but at the end we felt so strong, we felt that it was so useful and helpful to the people in Myanmar and it was very well recognized by every identity … we were not only able to bring in assistance, we brought in access. We brought Myanmar into the open and all the international community were able to take part and assisting in sharing their humanitarian assistance to Myanmar. I am very happy and proud and honoured to be a part of the TCG.Footnote 137

3. Inclusiveness as a groundbreaking problem-solver for future emergencies

ASEAN hints constantly that its participatory success in design and institutional culture is a problem-solver for future crises: the Nargis mechanisms “can be applied in another country experiencing emergencies and natural disasters”.Footnote 138 The uniqueness of the inclusive “solution” is expressed in many “first ever” achievements. For example, since the TCG was headed by Myanmar's highest-level authorities, it could overcome bureaucratic aid barriers which are typical problems for every disaster relief operation:

The government gave the TCG a mandate to issue visas, travel authorities [TAs] and related matters. Normally international humanitarian actors would have to deal with ministries like Ministry of Social Welfare, Relief and Resettlement to get access into the relief areas like the Delta and Yangon Divisions. The officials they deal with are not at a high level. However the TCG had the power to grant visas and TAs. If things had gone through the normal mechanisms, it would have taken months to get the approvals. Instead we were able to mobilize people through the TCG mechanism very quickly. This was a great achievement.Footnote 139

Another example is of the successful incorporation of two different methodologies for disaster assessment in ASEAN's Post Nargis Joint Assessment (PONJA). The PONJA incorporated two different methodologies for assessment—first, the World Bank's Damage and Losses Assessment (developed in the 1970s for reconstruction and recovery purposes), which relies on formal government data as well as secondary data. Second, the UN proposed a Village Tract Assessment (VTA), which uses more direct participatory data (about feelings, experiences, family, and community matters). It was critical, argues Puji Pujiono, the head of the Assessment Oversight Committee (AOC), to delicately combine the two methodologies to overcome tension between UN and World Bank representatives.Footnote 140 The outcome was groundbreaking, as described by ASEAN, because it had integrated short-term relief and long-term development and needs on both a micro- and macro-level “which had never been attempted on such a scale before”.Footnote 141 Its success was also explained in terms of groundbreaking participation between agencies:

In most disaster scenarios, agencies typically conduct their own assessments based on their own, unique specialized fields. For example, UNICEF may conduct an assessment on damage to schools and children at risk, whilst an international NGO like CARE may assess impact of a disaster on livelihoods. In other disaster responses, a coordinating body like UNOCHA may then pull together these assessments to make it easier to share the findings across that country.Footnote 142

Inclusive management is the answer to the co-ordination problems that are typical of any aid operation.

4. Inclusiveness as the key to future international relations with Myanmar

When finally ASEAN sums up its achievements in managing the crisis, all aspects of this ethos of inclusiveness concentrate in providing an alternative, a key, and a script for future relations with Myanmar in disaster and beyond. ASEAN managed to create new possibilities for engagement with Myanmar. Not only was a space opened for humanitarian assistance in the Irrawaddy Delta,Footnote 143 but international humanitarian space was also more generally opened up in Myanmar;Footnote 144 ASEAN's inclusiveness had created an opportunity for the Myanmar government to engage with the international community “in a fresh way”,Footnote 145 lifting political restrictions for funding,Footnote 146 and improving humanitarian agencies’ relations with the Myanmar governmentFootnote 147 and Myanmar's capacity to engage with such agencies in future crises.Footnote 148

The message is clear: ASEAN as a crisis manager in Nargis communicates its unique role as one of facilitating wide possibilities of engagement through an intimate, inclusive ethos. It stresses its “contribution to the world” in the field of crisis management as an innovative alternative to the legalistic, moralistic, and coercive ethos, that was shown (by the crisis of aid) to have failed in Nargis. Instead, it stands behind an ethos of inclusiveness, relational, open-ended, “soft” management. This, ASEAN suggests, is the meaning of its new type of interventionism. A capacity for an ASEAN-type “touch” in disaster management is something that the world not only needs, as ASEAN emphasizes, but must acknowledge.Footnote 149

IV. CONCLUSION: OPENING A HUMANITARIAN SPACE

A terrible storm, an unprecedented, unexpected, extraordinary “event”, exposed gaps and ambiguities in the jurisdictional assumptions of Myanmar's territorial sovereignty. The gaps were apparent not only in the evidence that the storm and the destruction brought with it, but also in the regime's attempts to control and regulate both local and foreign help.

But from the very first moments, what shaped the development and escalation of the crisis as well as its solution were a range of practices and voices that aimed to reconceive, restore, and give new meaning to the disaster, re-establishing it as “a place”, cared for, attended to, entered into, and “opened up”.

It started from the government's attempts to show that it was in control, that it had preconceived emergency programmes available, and that it implemented them, that it negotiated, and regulated access, that it provided material aid but also maintained order and regulation amidst the chaos, that it knew where the survivors are and where they should be, that it rendered accountable officials’ abuse, and maintained a strictly rational distribution process.

These practices were confronted very early with the reality of destruction and neglect. The picture that the government tried to maintain collapsed in view of the reality of slowness and inefficiency, corruption, absence, and the distrust that victims expressed. Competing claims about the meaning and orientation of the disaster's space were easily expressed by contestations over the question of access for relief:

  1. 1. International disaster relief organizations placed the disaster in a limited functional and professional jurisdiction, bringing material support and expertise, as a basis for their urgent claim of access which was seen to be escalating as it was frustrated by the government.

  2. 2. Western commentators brought a direct, moralized, and legalized assault on the government's mode of sovereignty, placing the disaster in a “global jurisdiction” under the responsibility to protect.

  3. 3. Local “first responders”, mostly religious institutions and local activists, contrasted the government's absence in the affected areas by an availability and presence that was seen to fill the disaster's place with a pro-community, participatory, even democratic, emancipating meaning.

  4. 4. ASEAN “broke the impasse” with a regional proposal based on intimate relations on diplomatic and bureaucratic levels and a unique regional threats sensitivity. ASEAN was successful especially because it was capable of asserting the disaster's space as a place for “everybody”: a jurisdiction of inclusive co-operation between Myanmar, its neighbours, UN agencies, and “local volunteers” led by a weak, sovereign-protecting regional organization.

The disaster's jurisdiction was finally asserted as “open”, or at least “more open”, a jurisdiction which was isolated and is finally on the way to “opening up”.

***

In the wake of the financial crisis, “the ASEAN Way” was highly criticized: “The ASEAN Way no longer works … The organization's cardinal principle of non-interference has run into the reality of inter-dependence.”Footnote 150

This criticism resonated deeply and constantly in international responses to ASEAN's position on Myanmar, the weakest spot of the “ASEAN Way” non-intervention narrative. This weak spot constantly needed to be reacted to by new institutional mechanisms to express and fortify resilience.Footnote 151 This is also the energizing force in ASEAN's mobilization in this crisis. But the extent and meaning of ASEAN's Nargis experience cannot be understood as strictly political, rhetorical manoeuvres because they express a reformulation of the “ASEAN Way” which proposes to shift from being an exceptionalist international behaviour to an attractive alternative, and a powerful suggestion about how the international community should deal with its threats. That this suggestion is appealing is exposed by the wide consensus over ASEAN's success. Whether it is meaningful is a much contested question and will be exposed in ASEAN's future activities in relation to different and other types of crises in Myanmar, in other Member States, and in other parts of the world.

I do not claim that ASEAN's response to the crisis indicates a true shift in the “ASEAN Way”. One can plausibly claim that the four elements of this “doctrine” remained intact in this crisis: ASEAN “broke the impasse” only after it had secured the consent of the Myanmar government; it had used “informal diplomacy” just as much as it had in the past; typically, it had strongly resisted threats to use force in this crisis; and, as characteristic of its traditional stand, only acted on the basis of consensus. Thus, there is no big groundbreaking “shift” in ASEAN's traditional “way” in this crisis. In fact, one could remain deeply sceptical about ASEAN's capabilities to respond to future disasters. It still lacks much in physical and economic capacity, not to mention political will to intervene in more contentious crises,Footnote 152 and as floods hit Thailand in 2011 and Typhoon Bopha hit the Philippines in 2012, ASEAN has proved that its Nargis promise was rather illusive.Footnote 153

But this paper was not an attempt to back up Surin Pitsuwan's claim that ASEAN was “baptized in the storm”.Footnote 154 It was an attempt to understand Pitsuwan's claim as a self-expression of ASEAN's experience of the crisis as an opportunity. It showed that this opportunity must be understood not as a miraculous solution that can indeed be repeated if one simply follows a regional model of intervention. Instead, ASEAN's success in “breaking the impasse” was a consequence of the dynamic legal politics that this specific crisis raised—the legal politics of access to a disaster affected area. It could only be understood on the background of a multiplicity of forceful claims that contested Myanmar's position of sovereign exclusive jurisdiction over the emergency's territory. As this jurisdictional politics evolved, ASEAN seized the opportunity to present its unique abilities as an appealing role model in the developing area of disaster response.

If ASEAN's opportunity in Nargis is so unique, how could this analysis be generalized to other natural disasters and other types of emergency, such as economic disasters, and man-made humanitarian catastrophes? As we saw, ASEAN's self-presentation suggested that its method is indeed generalizable. But there is no indication that it had itself applied its model of intervention in other emergencies, let alone any indication that this model was used successfully by any other regional organization. However, while the claim about the significance of ASEAN's regional intervention is narrow in the sense of its applicability elsewhere, it is nonetheless quite broad in its methodological implications. While it certainly does not prescribe a certain type of regional intervention that would work anywhere, it draws attention in the study of emergencies to a certain political dynamic that is shaped by legal claims and legal realities—specifically, claims about jurisdiction over emergencies and the measures needed to handle them. Emergencies are characterized, this paper claimed and the case illustrated, not only by “sovereign control” but by “jurisdictional problems” and the politics of jurisdictional opportunity: they are moments when the question of who is in control over a certain territory of urgency is opened up to contestation. The specific way in which ASEAN has intervened in the Nargis response is just one, albeit powerful, possibility to instil a certain type of “jurisdictional politics”. There were, as we saw in Part II, other opportunities on the table, and it is important to acknowledge them since they might have more traction in future crises. The point is not to prescribe ASEAN's regional intervention but to display the dynamism that made it possible, that led the way to what was widely seen as a successful management of the crisis.

Finally, the importance of recognizing the jurisdictional politics of the disaster is not strictly in pointing to the obvious fact that the question of access by foreign aid to a domestic area affected by natural disaster is far from being a solved legal issue, but in helping us track (and reflect on) the dynamics of normative decisions and political possibilities that this fact entails. The legal and political questions about the conditions for intervention in a humanitarian crisis were, in Nargis, reframed by the activities and the narratives of multiple actors. What is clear is that they were not determined, and cannot be explained, by the limited dichotomist prism of sovereign monopoly over the emergency and its limits.

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.

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) 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 156–184; 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 729–731; III, Julio AMADOR, “Community Building at the Time of Nargis: The ASEAN Response” (2010) 28 Journal of Current Southeast Asian Affairs at 3–22.

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 379–402; 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 262, 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), 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) 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) at 456); “power” or “competence” (BROWNLIE, Ian, Principles of Public International Law, 5th ed. (Oxford: Oxford University Press, 1998) 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); “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 1); “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).

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 852–855. 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 1–5.

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–;148; PEDERSON, Morten, Promoting Human Rights in Burma: A Critique of Western Sanctions Policy (Lanham, MD: Rowman & Littlefield, 2008); 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 169–170.

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).

35. GHOSH, Nirmal, “Give, but Stay Away” Straits Times (10 May 2008), 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) 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), online: 〈http://www.worldmag.com/articles/14061〉.

42. PARSON, C., “France Urges U.N. Council to Act on Myanmar Cyclone” Reuters (7 May 2008), 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 703.

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 135–155.

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): “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): “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) 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 21, 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). See also ALVAREZ, Jose, “Institutionalised Legalization and the Asia-Pacific ‘Region’” (2007) 5 New Zealand Journal of Public and International Law 9 at 17: “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): “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), 55 at 58. See generally RUGGIE, John, Constructing the World Polity: Essays on International Institutions (New York: Routledge, 1998); KATZENSTEIN, Peter, ed., The Culture of National Security (New York: Columbia University Press, 1996) at 11–17; FINNEMORE, Martha and SIKKINK, Kathryn, “International Norms and Political Change” (1998) 52 International Organization 887; 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). 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 15–16; 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), 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 23–41.

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 30; TRAN, V.H. and HARVIE, C., eds., Causes and Impact of the Asian Financial Crisis (London: Macmillan, 2000); TRAN, V.H., The Asia Recovery (London: Edward Elgar, 2001).

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), 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), 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), 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), 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 57–87. 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), 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), 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), 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.

* 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.