News coming out of Naypyitaw and Yangon meetings regarding the progress of peace process seems to be quite encouraging and many started to think that achieving political settlement and national reconciliation might be just around the corner.
But a closer look indicates that the term “agreement in principle” denotes quite a different understanding or sometimes even misleading, depending on how one would like to interpret it.
One clarification on it that seems quite comprehensive is from the Duhaime’s Law Dictionary, which explained that agreement in principle is no agreement at all. Further, if it is to bind the parties, a contract must be concluded in all its fundamental terms, with nothing left to negotiate.
According to the explanation:
“It follows that, prima facie, there is no concluded contract where further agreement is expressly required…
“(I)f the parties have reached an agreement in principle only, it may be that the proper inference is that they have not yet finished agreeing, for instance: where they make their agreement subject to details or subject to contract; or where so many important matters are left uncertain that their agreement is incomplete.”
In other words, this optimism or agreement in principle still has a long way to go to become a contract that would alter the presently accepted Nationwide Ceasefire Agreement (NCA) as it is now, so that all could enter the 21st Century Panglong Agreement (21CPC) with a clear conscience, that nobody would be taking advantage at the expense of the other fellow negotiation partners.
While the meeting, on March 1, between the United Nationalities Federal Council’s (UNFC) Delegation for Political Negotiation (DPN) and State Counselor Aung San Suu Kyi was said to be cordial, sisterly and brotherly like gathering according to Khu Oo Reh, head of the delegation, no substantial discussion on issues were made but just the impression that further deliberations on the delegation’s 9 point proposal, to be incorporated into the NCA, would be pursued with the government’s Peace Commission (PC).
Accordingly, on March 3, the DPN and PC, the government’s peace negotiation arm, met to iron out the details of DPN’s 9 point proposal that was said to be all in agreement principally, except for the number 3 and 5 proposal.
The number 3 is concerned with the “Agreement of tripartite dialogue composition”, while number 5 is to do with the “Advance agreement on Military Codes of Conduct (CoC) and monitoring on Terms of Reference (ToR).”
Now let us look into the problematic issues surrounding the NCA and imagine on how likely they could be overcome.
Khu Oo Reh prior to meeting the PC, on March 1, told the media that all-inclusivity, tripartite composition and international participation in Ceasefire Joint Monitoring Committee (JMC) process still couldn’t be resolved, including the proposal for Tatmadaw’s ceasefire declaration, to be followed by the United Nationalities Federal Council’s (UNFC) member ethnic armies likewise within 48 hours.
Joint Chief of Staff General Mya Tun Oo and as well Commander-in-Chief General Min Aung Hlaing said the inclusion of the three excluded EAOs couldn’t be entertained, as the three just come into being just recently and presumed that they are taking advantage of the peace negotiation situation.
Mya Tun Oo reaffirmed Burma’s Army stance on the Arakan Army (AA), Myanmar National Democratic Alliance Army (MNDAA), and Ta’ang National Liberation Army (TNLA) exclusion, saying that the army has “no reason” to hold peace talks with them because they came to existence only after emergence of a democratic government, in contrast to other long-established ethnic armed groups.
“We’ve no reason to invite those groups to the peace [process], to discuss peace and ask them to sign NCA,” said the general, according to the report of The Irrawaddy on March 1.
Additionally, the Commander-in-Chief recently told Special Envoy for Asian Affairs Sun Guoxiang that the ethnic armies refused to “sign the NCA because they do not want to carry out peace processes similar to that of international community. Despite wishing to demand all political rights through the meeting in political trend, they want to hold up the armed struggle line. No country accepts the demand of political rights all over the world by holding firearms,” according to the publication in his Facebook.
On March 1 evening, Khu Oo Reh told the media in Naypyitaw, “We already said that we would like to employ the mode of tripartite composition in all level of political negotiations. Since we haven’t been able to agree on this, we still need to adjust and find solution.”
The present participant composition in the 21CPC or Union Peace Conference (UPC) is government 150; Military 150; Ethnic Armed Organizations (EAOs) 150; political parties 150; ethnic representatives 50; and other invited individuals 50.
The UNFC said that the 21CPC present composition could not be construed as being a level playing field for political settlement negotiations and thus opted for the tripartite dialogue that all along has been endorsed by the United Nations for decades.
JMC deliberation regarding participation of international actors
Regarding UNFC proposal of the international actors participation trusted by both sides in the Joint Ceasefire Monitoring Committee (JMC), the Military is not in agreement.
“Regarding this, we still are not in agreement. Especially, the Tatmadaw is of the opinion that international participation could complicate the situation more. In all the discussions, they always dwell on this position,” said Khu Oo Reh.
Ongoing military offensives
Joint Chief of Staff Mya Tun Oo recently told the media that the UNFC demand for the Tatmadaw’s unilateral ceasefire “impractical,” and instead has called on the UNFC to sign Nationwide Ceasefire Agreement (NCA).
Khu Oo Reh also told the media that the heightened military offensives on the ground didn’t make the situation of the EAOs participating in the peace process easier.
Thus, in spite of heightened optimistic outlook, the meeting on March 3, between the DPN and UNFC was not a breakthrough that could dispel all disagreement, but would still need quite a few more rounds of negotiation.
The Wa game plan
The Wa initiated meeting, attended by non-signatories EAOs, from February 22 to 24 in Panghsang is being seen as a parallel new game plan to the government’s NCA-based 21CPC. But Arakan National Council/ Arakan Army (ANC/AA), a member of the UNFC, sees it as an approach to alter the NCA to be more comprehensive, according to the recent Mizzima report of March 4.
Commander-in-Chief of the ANC/AA Colonel Min Tun, when asked on how he would interpret the Panghsang statement, replied: “We see this as complication. Wa and Mongla believed that following the present NCA won’t be beneficial for them. Adding to this is the exclusion of the three EAOs – Kokang, Palaung and AA – from the NCA line of participation. We have no objection to the search for new line of approach. It is more important on how to cooperate with the EAOs participating within the old line (present NCA). The UNFC sees the NCA as not comprehensive and stable and would continue to go about with amending it. The present Panghsang meeting has the intention to go for a new trend by rewriting it. Eventually, the stage of resolving NCA – that still needs to be agreed upon, will be reached.”
The speculation that the Wa initiated Panghsang game plan might be supported by China is rife, because of the frustration that the ongoing war in Burma could not be stopped, hindering its ambitious “One Belt One Road” (OBOR) economic scheme – that the Panghsang statement also explicitly endorsed.
Regardless of the fact that the Chinese diplomats endorsement that all the EAO should sign the NCA, the Panghsang meeting advocating to tread a new path, in which it suggested the NCA with a more equitable ceasefire document that should be the basis for all non-signatories to participate, it should not be seen as going against China’s wish. It is, in fact, speculated by foreign observers that this could be the ploy to realize the Chinese desire, to either pave ways for it to be more actively involved in the peace process or create a new game plan altogether that is parallel to the NCA.
Looking at the various scenarios that have been unfolding during these few weeks, the overall development of achieving peace and reconciliation might still have to go a long way.
Firstly, the result coming out of the two meetings between the DPN-Aung San Suu Kyi and DPN-PC couldn’t pinpoint any concrete progress, rather than the “agreement in principal” of the UNFC 9 point proposal.
The outstanding proposal number 3 and 5 were said to be referred for further discussion within the mold of Framework for Political Dialogue” (FPD) meeting and Ceasefire Joint Monitoring Committee (JMC) meeting respectively, which should go parallel with the 21CPC that would soon begin.
Again, regarding the UNFC participation, which is said to be upgraded to “special guest” status, is not clear whether its members would be allowed in as full-fledged participants with decision-making voting rights or not. This also needs to be determined among the members of Union Peace Dialogue Joint Committee (UPDJC), which is made up of three parties – government, parliament, military; signatory EAOs; and political parties, with 16 representatives form each bloc.
Thus, it it fair to conclude that there is still no clear-cut commitment on how the agreed NCA would look like or how the second 21CPC would be conducted. But one might say, nevertheless it is a progress, as “often parties to an agreement in principle, details to be worked out later, commence implementing the agreement, working out the details as they go along,” according to the Duhaime’s Law Dictionary. Only no one knows for sure, how this will unfold if practically implemented.
Secondly, in addition, speculations are rife that Karenni National Progressive Party (KNPP) and New Mon State Party (NMSP) like to sign the NCA, while Shan State Progress Party (SSPP) is said to be reluctant to upset the United Wa State Army (UWSA) and the Kachin Independence Organization/Army (KIO/KIA) has diversified into two factions that would likely opt for signing it and hard-line faction that doesn’t like to sign. Thus, making the already complicated peace process even muddier.
For now, it is a bit early to speculate whether the situation would worsen or improve, prior to the upcoming second 21CPC, with escalating armed conflict being reported in Kokang and Kutkai areas in Northern Shan State, at his writing. But one thing is sure, only a level playing field and a reasonable give-and-take on the outstanding issues outlined by the UNFC would break the deadlock, which would have also answered to a lot of Panghsang’s political demands, there is hardly any other way.
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