Limitations of research method

In addressing the question of how norm socialization is animated in the process from norm-favoured policies to societal practices, different approaches may produce differing knowledge depending on the focus of analysis. Although this study‘s method of a single country case study reveals in-depth knowledge of mechanisms influencing the practices of the respective norms, the study was not able to deal with some issues which can be more effectively addressed by cross-state comparative studies. For instance, the different nature of transitioning processes and their relation to the norm implementation process can be better be addressed by cross- state comparative analysis.

There also are some limitations on the data on RBC norms in addressing the historical perspectives of RBC. Until recently, published information on businesses in Myanmar was very

limited both in terms of Myanmar language and English language materials. Therefore, the empirical descriptions of the historical perspectives on RBC are limited.

Another limitation relates to ‗theoretical validity‘. According to Joseph A. Maxwell, ‗theoretical validity‘ is validity of the concepts applied to the research phenomena and postulated relationship among the concepts and ‗theoretical validity‘ depends on ‗whether there is consensus within the community concerned with the research about the terms used to characterize the phenomenon‘ (Huberman and Miles, 2002: 51-52). Although consensus on the terms this research employs in analysis such as ‗on-track‘ or ‗off-track‘ of the RBC and FOA norms and ‗agential dynamics‘ are less likely in the community concerned with the research due to the diverging perspectives held by different stakeholders, the terms are less likely to generate objections in the community as they reflect the factual reality on the ground without disadvantaging any group of stakeholders.

Chapter Five: Practices of Freedom of Association in Myanmar

5.1

Introduction

‗The anarchy currently characterizing industrial action was not in accordance with national law and not conducive to positive labour relations. Illegal industrial action was detrimental to current and potential foreign investment and could negatively affect job creation...for a young democracy like Myanmar, the journey was long, and it would undoubtedly take time to get where all stakeholders wanted to be. The social partners needed to work together constructively.‘

Extract from the statement of Daw Khine Khine Nwe, Joint Secretary General of UMFCCI at ILO Committee on Application of Standard, June 2018

This chapter discusses the challenges in implementing the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) of the International Labour Organization (herein after FOA) in Myanmar. It analyses why the FOA norm never had a chance to become a practice in the country throughout the country‘s history and why it remains challenging even in the period when the political, legal and institutional environment has become more favourable. Legacy effects on contemporary conceptions of FOA and actions of key stakeholders during the country‘s first phase of democratic transition (2011–2016) are considered. Despite the elite-driven nature of the transition to democracy, legal and institutional structure favourable to FOA practice has been emerging, which is manifested in the increased numbers of labour organizations and greater freedom for workers to undertake industrial actions following 2011. However, these developments conceal the underlying challenges of FOA implementation and question the role of norm socialization involved in FOA practice. Violence involved in labour strikes, growing inter-union tensions, continuing practices of anti-union discrimination and union busting become the main challenges for FOA implementation. The country‘s experiences in implementing FOA are contrary to the expectation of ILO Convention 87 which states ‗[T]he principle of freedom of association to be

a means of improving conditions of labour and of establishing peace‘.34

These challenges reveal the limits of state (government) and international actors in norm implementation and they signify the important roles of key stakeholders, businesses and workers who are the actual executors of the FOA norm in a transitioning democracy.

The FOA case in Myanmar exemplifies an international norm which finds decades of commitment-compliance gaps under the military-led administration of the Burma Socialist Programme Party (BSPP, 1962–1988), under the State Law and Order Restoration Council (SLORC, 1988–1997) and under the State Peace and Development Council (SPDC, 1997– 2010). Such commitment-compliance gaps existed largely owing to the state‘s forbidding role and the implementation of the norm remains challenging despite the government switching its role to an enabling agent of FOA since 2011. The analysis of the FOA case in Myanmar serves the current research in identifying the role of socialization at a domestic site. Study of the FOA case also help verify and refine some counterintuitive findings in the literature about the greater impact of international human rights treaties in states in transition to and from democracy (Simmons, 2009: 360).35

The FOA case also allows the current research‘s to analyse the compliance impact of the norm‘s contents in response to the calls made by Alexander Betts and Phil Orchard (Orchard and Betts, 2014: 276-277).

The chapter is organized in three sections. The first section situates the issue of FOA implementation in the historical context of organized labour practice under successive Myanmar administrations prior to democratic transition in 2011. Secondary sources are analyzed and the section presents the structural and agency aspects which are responsible for FOA practice (or lack of practice). Implications of historical factors on contemporary challenges in the implementation of FOA are considered. The second section presents primary data on the conceptions and activities of three groups of stakeholders36

following and in response to a new power configuration and transition-generated legal/institutional structures. Observed activities are analysed through the lens of socialization.

34

Paragraph four of the preamble to the ILO Convention No.87.

35

Bath A. Simmons‘s studies on domestic impacts of international human rights treaties, such as the ICCPR, CAT, and CEDAW, find that positive effects of ratified treaties are found to be larger in transitioning countries which ‗includes countries that have transitioned to democracy, away from democracy, and have fluctuated somewhere in the middle‘.

36

Final discussions draw inferences from the empirical data and advance three main arguments. First, domestic implementation of international norms can better be explained by taking account of the conceptions and actions of multiple actors within a state. Although transitional contexts offer improved legal and institutional provision by the state, there are limits to the state (government) as enabling agent of FOA due to its capacity constraints. Second, off- tracking in implementation of FOA is primarily explained by diverging conceptions about FOA by key stakeholders due to the influence of historical factors, owing to the defects in evolving legal and institutional structures and insufficient intervention by domestic and international norm advocacy. These ideational, institutional developments (or underdevelopment) are found to be influenced by socialization mechanisms employed by international and domestic socializing agents. Third, diverged conceptions of FOA along with tensions among and within key stakeholders (workers and employers), and inadequate agency of domestic and international actors in promoting FOA represent a weak agential dynamic. A weak dynamic of agents of the FOA norm could not effectively address the deficient ideational structure and defective legal and institutional structure and thus undermined the practice of FOA during the first phase of transition towards democracy.