Can the National Unity Government (NUG) of Myanmar Represent that State for the Purposes of Accepting the Jurisdiction of the International Criminal Court?

[Ralph Wilde is a member of the Faculty of Law at University College London, University of London.]

This Saturday, 20 August 2022, marks the one-year anniversary of the date it was made public that the National Unity Government (NUG) of Myanmar had issued a Declaration to the International Criminal Court accepting the Court’s exercise of jurisdiction with respect to the situation in Myanmar on the basis of Article 12(3) of the ICC Statute. The legal effectiveness of the Declaration hinges on whether or not the NUG could act as the state of Myanmar for this purpose.  This question implicates the broader matter of who can and should represent the state of Myanmar internationally, as a matter of international law – the NUG, or the Junta who took power in the coup in February 2021.  And by association, even more broadly, who is and should be regarded as the ‘legitimate’ government of Myanmar, and on what basis.

The Myanmar Accountability Project (MAP) commissioned me to write a legal opinion on the legal effectiveness of the Declaration. The opinion was sent to the individual States Parties to the Rome Statute, and the Office of the ICC Prosecutor, on Monday 15 August 2022.  It explains that the Declaration was valid as a matter of relevant legal test, and should be accepted as such by the States Parties and the Court. It has been endorsed by a number of senior colleagues, including Radhika Coomaraswamy, former Under-Secretary General of the United Nations, John Dugard, former Judge ad-hoc at the International Court of Justice and member of the United Nations International Law Commission, Richard Goldstone, former Chief Prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda and Justice of the South African Supreme Court, and Aryeh Neier, founder of Human Rights Watch and President Emeritus of the Open Society Foundations.

A summary of the opinion follows. The full version, including the full list of endorsers, can be found here. An article in The Diplomat on the subject by John Dugard, Christopher Gunness (Director of MAP), Tommy Thomas (former Attorney General of Malaysia), Yuyun Wahyuningrum (a Representative of Indonesia to the ASEAN Intergovernmental Commission on Human Rights) and myself can be found here.  On Friday 19 August 2022, a webinar will be held to present and discuss the opinion and the case for accountability more generally. Speakers are Aung Myo Min, the NUG Minister for Human Rights, Wai Wai Nu, Founder and Executive Director, the Women’s Peace Network in Myanmar, and former political prisoner, Antonia Mulvey, Founder and Executive Director, Legal Action Worldwide, Richard Goldstone and myself. It will take place at 6.30pm Myanmar time (noon UTC) and you can register to attend here. The recording of the webinar will be posted on the MAP website afterwards.

Summary of the Opinion (taken from section 1.2):

The International Criminal Court (ICC) is legally entitled and, indeed, legally required, to accept the Declaration of 20 August 2021 issued by the National Unity Government (NUG) under Article 12(3) of the ICC Statute as valid under that Article as an acceptance of the Court’s jurisdiction by the State of Myanmar.

The NUG is the legitimate government of Myanmar as a matter of domestic law, since it is formed of members who were elected under the Constitution, is committed to democratic, pluralistic and Constitutional rule, the rule of law and promotion of human rights and is the only alternative to the military junta/SAC, which is manifestly and inherently illegitimate, un-Constitutional and undemocratic, and engaged in widespread, systematic and grave human rights violations.  It is also notable that the question of de facto control exercised within the country is in flux, with significant areas and population groupings not under the control of the junta while the NUG is also aligned with armed actors that control significant parts of the country.

The analysis in this Opinion leading to the foregoing conclusion about legal status of the Declaration cascades through the different applicable legal regimes, from the general to the specific. It begins with the recognition of governments as a general matter, not specific to Myanmar, as a matter of the rules of customary international law based on the practice of States on the subject, and the implications of this for the ICC’s position on the Declaration.  It then turns to the accreditation of representatives of member States before the UN General Assembly, again as a general matter, again explaining the implications for the Declaration.  The focus then moves to these same two legal regimes as they have been applied to the situation of Myanmar, with further, more specific, implications for the Declaration.  Finally, the sui generis legal position of the ICC is addressed, revealing further, distinctive norms applicable to the question of the legal status of the Declaration as far as the Court is concerned.

As far as the ICC acting in a manner that is consistent with the general position in international law applicable to States when they recognize governments of other States, the ICC is free to decide whether or not to recognize the NUG as being a valid authority to issue the Declaration on behalf of Myanmar, and, if it decides in the affirmative, it can do this on any basis.  In particular, there is no legal requirement to adopt a consideration based on the level of control exercised over Myanmar by the NUG.

When it comes to the significance of the practice of the UN General Assembly on the accreditation of representatives of Member States, the Credentials Committee has been willing on occasions to approve the credentials of democratically elected governments and groups in restored democracies even in circumstances where they had been deposed from power or lacked effective control of the country concerned. In situations where there has been a refusal to accept the outcome of a free and fair election or where power has been illegally seized through a coup, the Credentials Committee has on occasions considered other factors, such as the legitimacy of the entity issuing the credentials, the means by which it achieved and retains power, and its human rights record. Bearing in mind the manifest similarities between this practice and the situation in Myanmar at the time the Declaration was issued, it follows that a decision by the ICC to accept the NUG as being a valid authority to issue the Declaration on behalf of Myanmar would be consistent with, and would follow from, a diverse set of precedents set by this UNGA practice as a simple matter of fact.  Moreover, more specifically, if such a decision were to manifest not only factual coincidence with these precedents, but also to be partly made on the basis of similar normative considerations, it would also be consistent with, and, indeed, follow from, a diverse set of precedents to do this set by the UNGA.

The significance for the ICC of the practice of the General Assembly on the representation of Myanmar in particular, and the situation at one stage of proceedings before the International Court of Justice is as follows.  A decision by the ICC to accept the Declaration as valid would follow from the equivalent decision made by the United Nations General Assembly in December 2021 to recognize an official acting on behalf of the NUG to represent Myanmar as the Permanent Representative of Myanmar to the United Nations.  This is not contradicted by the presence of two SAC ministers as Agents for Myanmar in oral proceedings at the International Court of Justice in 2022, since that presence cannot be understood to have necessarily operated on the basis of a more general acceptance by the Court on the merit of the SAC’s claim to be the government of the State. 

For the ICC to accept the NUG as capable of engaging the State of Myanmar so as to render the Declaration legally effective would be to follow from, be consistent with, and in one respect potentially required by, two related positions adopted by States and the United Nations that have direct legal significance to the entitlement of the NUG to represent the State in international law as a general matter (i.e. not just before the United Nations General Assembly).  In the first place, there has been a consistent and widespread determination by both States and all the main relevant United Nations bodies and officials that the junta is illegitimate both as a general matter—based on how it was constituted—and in terms of the abuses it has perpetrated against the people of Myanmar.  In the second place, there has been an act of collective recognition of the NUG as the government of that State by almost all the world’s states when they voted unanimously in the General Assembly on accreditation before that body. Moreover, a case can be made that this collective recognition was intended to have legal standing, in rendering obligatory the recognition of the NUG as the government of Myanmar. Since this was made unanimously, it has had the intended legal effect in terms of creating a rule of customary international law requiring the NUG to be accorded this status.  In consequence, the ICC would be required to accept the Declaration as valid as far as the question of the NUG’s capacity to act on behalf of Myanmar to issue it is concerned.

Finally, as a matter of the internal law of the ICC Statute which the ICC must comply with, given that, for the reasons set out above, treating the NUG as the government of the State of Myanmar is consistent with all the different relevant areas of international law and, indeed, a sui generis rule of international law adopting such treatment as a legal norm that may well have been established, the object and purpose of the Statute, to end impunity, requires the ICC to accept the Declaration as valid for the purposes of Article 12(3).