Attempting an International Legal and Diplomatic Coup de Grâce in the 21st Century
On the first day of February 2021, Myanmar’s military seized the civilian leaders of the national and state governments and announced a one-year “state of emergency.” The military arrested Aung San Suu Kyi, President Win Myint, and dozens of other high-ranking officials of the cabinet, during an early morning raid in the capital. The military also detained civil society activists in other parts of Myanmar, and cut telecommunications and the internet. All these in unison can be described as sufficient ingredients of a military coup, the death of democracy and gross violation international legal standards.
The military also invoked an article of the military-drafted 2008 Constitution that allows it to declare a state of emergency and take control of all three branches of government. Vice-President MyintSwe, a member of the military-backed opposition party, replaced President Win Myint after his arrest. As acting President, MyintSwe then signed the authorization for the declaration of the state of emergency, transferring power to the commander-in-chief, Sr. Gen. Min Aung Hlaing. The military announced the state of emergency would last for one year, after which, it said, new elections would be held.
Several members of the military-installed government announced on 1 February 2021, are also implicated in serious rights abuses. Lt. Gen. Tun TunNaung, the junta’s appointee for Border Affairs, oversaw war crimes and serious abuses against civilians as the commander in Kachin State in 2013. Lt. Gen. Soe Htut, Minister of Home Affairs since 2020, was previously on the European Union sanctions list for human rights abuses related to his role leading the military’s southern command. Gen. Mya Tun Oo, the new defense minister, has held the military’s third-ranking role as the Chief of General Staff since August 2016, including during the 2017 ethnic cleansing campaign against the Rohingya.
As per the United Nations Charter, under Article 1(1), the purpose of the United Nations is “to maintain international peace and security, and to that end: take effective collective measures for the prevention and removal of threats to peace […].” It is therefore, necessary for affirmative action to be adopted. While the United Nations espouses to achieve its lofty ambitions, a genocidal military junta has snatched power from a democratically elected government without significant international consequence. However, one significant international legal action that is open to the United Nations as a response to the military coup can be exercised. Interestingly, this circumvents the requirement of an agreement of the Security Council’s five permanent members.
Pursuant to its procedural rules, the General Assembly is competent to deny Myanmar’s military junta the right to represent Myanmar at the General Assembly. Article 6 of the UN Charter empowers the General Assembly to expel a member state from the United Nations if it has ‘persistently violated’ the principles contained in the Charter. Furthermore, following military coups in Haiti (1991) and Sierra Leone (1997), for example, the Assembly recognized the credentials of the deposed democratically-elected governments. Unless and until Myanmar’s democratic government is re-instated, the credentials submitted by Myanmar in September will presumably be those of a military junta. If that happens to be the case, the General Assembly can, following the coups in Haiti and Sierra Leone, accept the credentials of the representatives of the democratically elected government. In a 2008 legal opinion, it was observed that the General Assembly can reject the credentials of undemocratic regimes which had never ‘in themselves operate[d] to change the internal political situation’.
However, a rejection of the credentials of Myanmar’s military junta would be, in some sense, an attempt to carry out an International Legal Coup de Grâce in the 21st Century. Which would snowball and have significant ramifications for Myanmar’s diplomatic relations with other states, as well as for Myanmar’s standing in other international and regional organizations.
Furthermore, the actions of Myanmar’s military are contrary to ASEAN’s Charter which reads, in the Preamble, “adhering to the principles of democracy, the rule of law and good governance.” This is reiterated in article 1, “strengthening democracy, enhancing good governance and the rule of law as among ASEAN’s main purposes” and in Article 2 on the organization’s “principles” which includes “adherence to the rule of law, good governance, the principles of democracy and constitutional government.” Therefore, Myanmar as a member of this Charter since 1997, is legally obliged to uphold the purpose of the Charter.
For the foregoing reason, Myanmar’s Military action are opposed by many sources in international law. But, in response, a rejection of the junta will act as a messenger to instigators of undemocratic seizures of power. In other words, if Myanmar’s military junta puts forward its representatives for the 76th session of the General Assembly in September, the Assembly will be prescribed to condemn an undemocratic seizure of power. In the interim, efforts to enable international justice will gain deeper traction. The extent of engagement will depend on the appreciation by the Myanmar junta vis-à-vis legal proceedings and the legal advice. This is a legal milieu that must require an international movement and nations’ responsibility to protect- perhaps through an international legal and diplomatic coup de grâce.
