Myanmar: with Military Lacking Legitimacy and Control, Elected Reps Seek Recognition as Government

[Sean Bain has worked on justice and democracy issues in Myanmar since 2013, including as Yangon-based legal adviser for a human rights group and as an analyst for the United Nations.]

Photo credit:  “SK/Kachinwaves”; “Anti-coup protest in Myanmar’s northern Kachin State, 8 May 2021”

The unlawful military coup of 1 February is not a fait accompli, and States must refuse to recognise the junta as Myanmar’s government, to avoid providing it legitimacy or advantage. These were among the key messages in an experts briefing for United Nations Security Council (UNSC) members last month. They suggest the symbolic and material significance of international recognition, while addressing the tests of legitimacy and effective control that are typically applied when States consider whether or not to recognise a new government.

This post considers the recognition tests in reference to the current situation in Myanmar, and discusses State responses, including in light of the formation on 16 April of an interim “National Unity Government” (NUG) to counter junta claims on authority, and its request for international recognition and assistance “as Myanmar’s only legitimate governing authority.”

The Unlawful and Unfinished Coup

The military’s putsch was patently unconstitutional: after months of propagating lies about irregularities in November elections, soldiers abducted the President under cover of darkness, then cited his absence as part of a warped legal logic to transfer authority to the military chief.

The offshoot political party of the military had been resoundingly defeated in the 2020 elections, even more so than in the 2015 landslide that first awarded to the National League for Democracy the majority of parliamentary seats and the right to form the national cabinet (except for ministries appointed and led by the military’s autonomous Commander-in-Chief, and in spite of the 2008 Constitution allocating a quarter of parliament seats to the military).

The military response to the overwhelmingly peaceful post-coup resistance has included widespread unlawful killings and enforced disappearances as well as the use of torture. All are serious crimes under international law. As in the military campaigns experienced by many of Myanmar’s minority groups, such coordinated and widespread acts suggest individual criminal responsibility at the highest levels. Yet in spite of these tactics and the terror which they are designed to instil in the population, the junta’s attempts to rule remain besieged by ongoing protests, strikes and coordinated civil disobedience across sectors – leading some to call this a “failed coup”.

The junta thereby presently fails the “effective control” test, which in short requires that for an entity to be recognised as a government it must perform as one, including by exercising territorial control effectively through administrative and security apparatus.

The National Unity Government

The NUG was formed by the Committee Representing the Pyidaungsu Hluttaw (CRPH); parliamentarians elected by Myanmar voters in November but later prevented by soldiers from physically convening. Comprised of old and new faces as ministerial appointees, the NUG has fervently rejected any form of recognition of the junta and its leaders, and demanded participation at any talks or processes that should involve the government of Myanmar. While imperfect (see below), its legitimacy as government is hard to question when compared with the junta. The NUG (and the CRPH) issue formal notifications and directives; these have included letters to UN entities, and to corporates involved in resource extraction.

Like the military, the NUG cannot demonstrate effective control over the country, yet they are closely coordinating with arms of anti-coup resistance, including the strike committees. They may carry further political advantage if rightly considered as the incumbent government. Greater use of diplomatic protocols, such as official communications and presentation of diplomatic credentials, would create more opportunities for recognition of the NUG by States.

Approaches to Government Recognition So Far

Under international law the recognition of governments – as opposed to States – is largely left to discretion. Most States apply a form of the “Estrada Doctrine,” which in short is to refrain from recognising new governments, to avoid meddling with sovereignty when authority is contested (this bears some resemblance to the non-interference principle espoused by members of ASEAN, the Association of South East Asian Nations). This type of approach has also been used to avoid giving legitimacy to unconstitutional power grabs.

Authority is clearly contested in Myanmar and so far, neither the junta or the NUG have been explicitly recognized by States as Myanmar’s government. Although, significant and valid criticism has been directed at cases of implicit recognition of the junta; some of these are very close to explicit recognition and are perceived by many as equivalent.

Take for instance the visit to Myanmar in late March by Russia’s deputy Defence Minister, who’s press photos with the generals spoke louder than his avoidance of the recognition question. Consider too the United Kingdom’s call that it “must accept” the recalling of Myanmar’s Ambassador in London, perceived in many quarters as constituting a recognition of the junta. That was part of a messy response to a situation where the long-serving Ambassador found himself locked out of the Embassy by pro-coup colleagues. But accepting a recall is not the same as accepting a junta appointee, so the UK has cards to play; although they will fear reciprocation.

Several ASEAN Member States seem to have handled the challenge differently, by recognising neither the junta nor the NUG, with China arguably treading a similar path so far. ASEAN Member State Malaysia for example followed up a bilateral meeting with a junta appointee by expressly stating that it did not amount to any recognition.

ASEAN’s approach as a bloc to the recognition question is so far less promising for the NUG. On 24 April, Senior General Min Aung Hlaing was hosted at an ASEAN “Leaders meeting” held in Jakarta, which excluded NUG members (this itself seems antithetical to the non-interference principle given that authority is contested). The meeting spotlighted ASEAN’s conflicted approach as a bloc: while members in attendance were at pains to refer to Min Aung Hlaing as a military chief rather than a country leader, read with the NUG snub the invitation was widely seen as an implicit recognition of the junta. Civil society groups were among those to denounce the summit. Time will tell if the benefits of that dialogue override their concerns. But the signs are not promising: the military was quick to reframe ASEAN’s “consensus statement” (which included a call to stop the killings) as “constructive suggestions” to be considered and implemented if and when these align with the junta vision. Shutting out the NUG does not seem effective and ASEAN should engage with them as a whole bloc, including through its planned appointment of a Special Envoy. As an immediate step, the NUG need be consulted on any proposal for an ASEAN delegation to visit Myanmar.

Meanwhile at the UN, Myanmar continues to be represented in New York by the incumbent diplomat aligned to the NUG (who emphatically and dramatically decried the coup from the floor of the General Assembly). On the other hand, in a recent Human Rights Council session the Geneva-based representative seemed to have been replaced by a camera feed to a coup-aligned official in Myanmar’s capital. A dispute over political representation at the UN will likely play out in the credentials committee before the General Assembly in September. States appointed to that committee will consider political as much as legal issues. While there is no direct precedent for this situation, the most plausible future scenarios are reaccreditation of the incumbent (as in Cambodia) or accreditation of a new representative (as in Venezuela). In the meantime, junta nominees are unlikely to receive a visa for New York or Geneva.

Another issue that will be affected is Myanmar’s dispute with the Gambia in the International Court of Justice, related to the alleged failed adherence to the Genocide Convention. Myanmar’s “agent” in the proceedings, Aung San Suu Kyi, remains detained by the military, along with her deputy agent. Yet the junta is yet to declare intentions on the case (in parentheses, the military’s nominee for Attorney General studied international criminal law for her PhD, and accompanied Suu Kyi to The Hague in 2019). The NUG has also not made known its intentions regarding the case. This is a subject for another post.

Immediate Options and Outlook

The discretionary nature of government recognition lends itself to a slew of different arrangements, and States are known to stray from default positions based on expediency or political priorities. Democratic legitimacy has even been a greater claim to recognition than having effective control, as shown in regional interventions of recent years to enforce electoral results in Côte d’Ivoire and the Gambia. The upshot is that States have autonomy and flexibility in their approach to recognising the legitimate authorities in Myanmar.

Convoluted arrangements could persist although they are tricky to maintain and explain. There are sound arguments in support of maintaining contact with both sides, particularly where there is an emerging humanitarian crisis, as has been the case in Venezuela and may become the case in Myanmar. But as shown in Venezuela, dialogue is different to recognition, which can carry significant legal and strategic implications, including for example access to resource revenues and foreign currency reserves (the US Federal Reserve has already stopped massive withdrawal attempts by the junta). Recognition of the junta is also unpalatable to the people of Myanmar, who overwhelmingly rejected military rule in recent credible elections.

For its part, the NUG could bolster its claim to being a representative and legitimate authority by seeking to better listen to and incorporate the voices of the country’s myriad identities and aspirations. Already, there is far greater representation of women in the cabinet, including a ministerial appointee who recently offered a mea culpa for her previous silence on the treatment of Rohingyas. The NUG must go further, by themselves extending recognition to Rohingyas as equal citizens of Myanmar along with an unequivocal commitment to respect and protect their human rights. A failure to do so would be a lost opportunity (a popular anti-coup placard reads “if not now, when?”); failure may also undermine the NUG’s own recognition claims, as suggested recently by US lawmakers. The CRPH and NUG need also reconsider including as ministers persons associated with crimes in Rakhine State, including because it may narrow policy options on international justice, one of which could be a self-referral to the International Criminal Court. These first months are critical for the NUG in building trust and collaboration with players outside the National League for Democracy camp, particularly with refugees and ethnic armed groups and civil society.

Myanmar’s military has absolutely no case to be recognised as the legitimate government, and it has also not established effective control over much of the country, including Yangon. While the NUG also lacks effective control it does have both legal and democratic legitimacy.

For more than three months residents have had to go it alone resisting by protest and civil disobedience the military’s efforts to appropriate and exercise power through brute force. This struggle is being waged at great sacrifice including to people’s economic livelihoods. While concrete and collective international action largely remains stymied by the usual political paralyses, each State is presently able to tackle the recognition question. They must be steadfast in refusing to give the junta the legitimacy it craves through recognition, and should meanwhile consider ways to support the will of people of Myanmar by engaging, assisting and ultimately recognising the NUG as Myanmar’s legitimate government.