The ICJ and Lawful Representation of Myanmar

The ICJ and the Issue of Lawful Representation in The Gambia v Myanmar

By John Packer, Gregory Stanton, Nathalie Chaar, Loujain El-Sahli, and Bailey Pelletier

17 February 2022

The International Court of Justice hears opening arguments in The Gambia v Myanmar December 10, 2019

John Packer is Neuberger-Jesin Professor of International Conflict Resolution in the Faculty of Law and Director of the Human Rights Research and Education Centre at the University of Ottawa. He was an official of intergovernmental organizations for 20 years including at the UN and as Legal Adviser and first Director in the Office of the High Commissioner on National Minorities at the Organization for Security and Cooperation in Europe.

Dr. Gregory Stanton is the Founding President of Genocide Watch. He was Research Professor in Genocide Studies at George Mason University, and the James Farmer Professor of Human Rights at the University of Mary Washington. In the State Department, he drafted the UN Resolutions that created the ICTR.

Nathalie Chaar, Loujain El-Sahli, and Bailey Pelletier are students in the JD/MA joint programme between the University of Ottawa’s Faculty of Law and Carleton University’s Norman Paterson School of International Affairs.

The authors wish to acknowledge the substantial contribution of Erin Farrell Rosenberg, Visiting Scholar with the Urban Morgan Institute for Human Rights at the University of Cincinnati College of Law, in advising upon the argument set out in the paper.

I. The Issue

This paper discusses the issue of the lawful representation of the Republic of the Union of Myanmar (Myanmar) in the proceedings at the International Court of Justice (ICJ) in the case of The Gambia v Myanmar. While there is no doubt that, as a State, Myanmar holds obligations owed to other States and to the international community as a whole, notably pursuant to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), and while there is no doubt that the case before the ICJ involves two States parties to the Genocide Convention for which the Statute of the Court and, more specifically, the Convention explicitly provide for the Court’s competence in the event of a dispute, the issue is who exactly possesses lawful authority to represent—and to determine Myanmar’s representation—in the proceedings before the Court. In short, who may speak for Myanmar, most immediately with respect to the hearings notified by the Court to take place in The Hague on 21-28 February 2022? In this regard, the question of the lawful representative for Myanmar has been made problematic by the uncertainty surrounding the legitimate governing authority of the State, competing claims and procedural capacities, and the varied and indeterminant State practice concerning recognition of any particular claim to represent Myanmar. As such, proceeding with the Court’s hearings is problematic and entails consequences and risks both for the case per se and for other actually or potentially interested parties.

II. Executive Summary

This paper concludes that pursuant to applicable international law under the Charter of the United Nations (UN Charter), and in the absence of any law that unequivocally confers upon the ICJ the competence to decide matters of government recognition, the ICJ is not competent to determine the lawful representative of the Republic of the Union of Myanmar in the notified proceedings in The Gambia v Myanmar case. In the event that the Court nonetheless proceeds at this time, and in this context, with the scheduled hearings, there would be risks of injustice and prejudices for which it would not be reasonable to conclude that the Court would be acting in accordance with international law as it is mandated to do. Moreover, alternatives exist which would avoid prejudices caused by proceeding amidst evident uncertainties.

Following the military coup d’état of 1 February 2021, the democratically elected Government of Myanmar was deposed and, in its place, a military junta has asserted authority. Contrary to the Constitution of Myanmar, the then President, State Counsellor, and Foreign Minister of Myanmar (as well as Agent before the ICJ), among others, were arrested by the military and subjected to extraordinary and unlawful trials. The people of Myanmar reacted en masse through nationwide civil disobedience which the junta met with extreme force which is ongoing. In response, deposed government officials and parliamentarians formed the National Unity Government (NUG) asserting authority as a government in exile as the legitimate Government of Myanmar. The situation remains fluid.

Internationally, there has been uncertainty about the legitimate representative of the State within multilateral relations (notably at the UN and the Association of Southeast Asian Nations–ASEAN) and bilateral relations. In particular, the UN General Assembly (UNGA)’s Credentials Committee has received requests to represent Myanmar from both the junta and the NUG. The Committee opted to defer its determination of this question and has allowed the Permanent Representative appointed under the previous democratically elected Government of Myanmar, Ambassador Kyaw Moe Tun, to remain in his seat and to continue to enjoy privileges and immunities, pursuant to Article 105(2) of the UN Charter, in respect of Myanmar as a UN Member State.

Pursuant to the UN Charter, the UNGA has the authority to “adopt its own procedures,” which includes the procedure regarding the recognition of an agent to represent a State within the UN system. In situations when the representation of a State is disputed, the Credentials Committee is tasked with assessing competing claims to legitimate representation and making a recommendation to the UNGA whereupon UN Member States render a decision. When examining the claim of a potential representative, the Credentials Committee will consider the effective control of the entity in question, their compliance with international law, and the purposes and principles of the UN Charter, including respect for human rights and the will of the people. Since the coup of 1 February 2022, it is uncertain that any claimant meets these requirements—a fact that has undoubtedly contributed to the absence of a determination. Furthermore, the recognition of credentials is ultimately a political decision, and the Credentials Committee has recommended as recently as December 2021 that recognition of any party to represent Myanmar be deferred. Therefore, significant uncertainty persists around who is the legitimate representative of Myanmar and, accordingly, who may speak for Myanmar in matters of relations between and among States including disputes.

The ICJ does not have an unequivocal procedure regarding representation of a party to a dispute and the ICJ does not enjoy, in accordance with international law, the competence to determine its own competence in such a fundamental matter. Rather, in accordance with the UN Charter under which the ICJ is established, the Court should defer to the determinations of the UNGA. In the absence of such a determination, the ICJ should refrain from making its own unilateral determination. In the event that the Court nonetheless proceeds, such a unilateral step would have prejudicial effects to proceedings and to the interests and certain rights of other States parties to the Genocide Convention, UN Member States, intergovernmental organizations, other UN organs and bodies, and, significantly, to the Rohingya people. As such, the process may contribute to injustice rather than justice. The evident implications of the case now proceeding entail certain effects and the risk of serious harm—both in terms of and beyond the case—in the absence of any compelling need to proceed at this time.

This paper concludes by providing potential alternatives to a unilateral ICJ determination, namely for the Court to suspend the proceedings pending a UNGA determination on who may lawfully represent Myanmar and for concerned parties—States and intergovernmental organizations alike—to register their concerns before the ICJ.

III. The Facts

(i) Procedural and Contextual Overview

On 19 November 2019, The Gambia, as a party to the Convention on the Prevention and Punishment of Genocide[1](Ge