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](Genocide Convention or Convention), applied to institute proceedings against the Republic of the Union of Myanmar at the International Court of Justice (ICJ).[2] Myanmar achieved independence from British colonial rule on 4 January 1948, became a member of the United Nations on 19 April 1948[3], and ratified the Genocide Convention on 14 March 1956[4]. The Application by The Gambia, which acceded to the Convention on 29 December 1978[5], concerns actions said to be taken and condoned by the Government of Myanmar against members of the Rohingya group (protected under the Convention) who primarily reside in Rakhine State in northwestern Myanmar.[6] In its application, The Gambia argues that the State of Myanmar has committed and continues to commit genocide against the Rohingya in violation of the terms of the Convention.[7]

Subsequent to three days of public sittings in the Peace Palace in The Hague on 10-12 December 2019, in an Order published 23 January 2020 the ICJ found unanimously that, as a party to the Genocide Convention, The Gambia has prima facie standing to bring a case against Myanmar before the Court.[8] Certain obligations enshrined in the Genocide Convention, including the duties to prevent and punish genocide, are obligations owed erga omnes to all State parties to the treaty.[9] The ICJ concluded that the “common interest [to prevent and punish genocide] implies that the obligations in question are owed by any State party to all the other State parties to the Convention.”[10] Following this determination on The Gambia’s standing, proceedings at the ICJ were affected by the COVID-19 pandemic.

In addition to The Gambia’s role in proceedings as a matter of public interest, other State parties and organizations comprised of State parties have interests in the matter. Indeed, in announcing before the UNGA its intention to proceed with the case, The Gambia called upon other UN Member States to join it.[11] At the 43rd Session of the United Nations Human Rights Council (UNHRC) on 26 February 2020, the Minister of Foreign Affairs of the Maldives announced[12] that State’s intention to intervene in the matter before the ICJ in line with the decision made unanimously by the Organization of Islamic Cooperation (OIC) in March 2019 to take action against Myanmar.[13] The Gambia ultimately applied to institute proceedings with the support of the OIC of which 42 members are parties to the Convention, including special support from Bangladesh.[14] On 2 September 2020, Canada and The Netherlands issued a joint statement announcing their intention to intervene in the matter as State parties to the Convention.[15] The statement reads in part that, “Canada and the Netherlands consider it our obligation to support these efforts which are of concern to all of humanity.”[16]

On 20 October 2020, Ambassador Kyaw Moe Tun was appointed Permanent Representative of Myanmar to the United Nations in New York, whereupon his credentials were accepted by the UNGA in November 2020.[17]

On 1 February 2021, a military coup d’état took place in Myanmar. The democratically elected parliament and the governing National League for Democracy (NLD) party were ousted by Myanmar’s military, the Tatmadaw, which declared a one-year state of emergency.[18] Government officials, including President Win Myint and State Counsellor and Foreign Minister Aung San Suu Kyi, were detained by the military and remain in detention today.[19] The military junta thereupon created its own body, the State Administration Council (SAC), composed of military and civilian members appointed by Senior General Min Aung Hlaing[20], who, in August 2021, went on to appoint himself Prime Minister in contravention to Myanmar’s Constitution.[21] Following the coup, Ambassador Kyaw Moe Tun remained in his position as Permanent Representative, pending a determination by the UNGA Credentials Committee established pursuant to Article 9 of the UN Charter.

On 12 February 2021, a representative of the junta was permitted to speak for Myanmar at the United Nations Human Rights Council (UNHRC), in response to criticisms expressed by Tom Andrews, the UN Special Rapporteur on the situation of human rights in Myanmar.[22] This junta representation was again permitted to speak during a UNHRC session on 11 March 2021. Both of these appearances drew sharp criticisms from States as well as international commentators.[23]

On 16 April 2021, in response to the coup, exiled elected parliamentarians formed the National Unity Government (NUG), retained President Win Myint and State Counsellor Aung San Suu Kyi, and asserted legitimate governing authority over Myanmar.[24] The NUG has reportedly established offices in six States: the United States of America, the United Kingdom, France, Czech Republic, Australia and South Korea.[25] The NUG is labelled as a “terrorist” organization by the junta.[26] The NUG has objected to the junta attempting to represent Myanmar and, recently, the NUG communicated to the ICJ that it represents the State of Myanmar in the The Gambia v Myanmar proceedings.[27]

On 18 June 2021, the UNGA adopted Resolution 75/287, which criticizes the Tatmadaw rule and calls for a return to democratic governance. The resolution passed with a strong majority of 119 votes in favour, 1 vote against, 36 abstentions, and 37 non-voting members.[28] Of the 119 votes in favour, 104 are State parties to the Genocide Convention.[29] Accordingly, UNGA Resolution 75/287 clearly illustrates—both for the majority of UN Member States and for the great majority of State parties to the Genocide Convention—the lack of international legitimacy of the junta and the contested nature of governing power in Myanmar.

In particular, UNGA Resolution 75/287 “[c]alls upon the Myanmar armed forces to respect the will of the people as freely expressed by the results of the general election of 8 November 2020, to end the state of emergency, to respect all human rights of all the people of Myanmar, and to allow the sustained democratic transition of Myanmar, including by opening the democratically-elected parliament and working towards bringing all national institutions, including the armed forces, under a fully inclusive civilian government that is representative of the will of the people.”[30]

Additionally, using the official titles of recognized plenipotentiaries of the State of Myanmar, UNGA Resolution 75/287 calls upon the military “to immediately and unconditionally release President Win Myint, State Counsellor Aung San Suu Kyi and other government officials and politicians and all those who have been arbitrarily detained, charged or arrested, including to ensure their rightful access to justice, and to engage and support the Association of Southeast Asian Nations constructively with a view to realizing an inclusive and peaceful dialogue among all stakeholders through a political process led and owned by the people of Myanmar to restore democratic governance.”[31]

The positions of the international community towards recognition of the junta, including representation at the UN, have also been expressed bilaterally and multilaterally in the strongest, negative terms. For example, on adoption of UNGA Resolution 75/287, in its statement of that day delivered on behalf of its Members and associated, candidate and some potential candidate States, the EU stated unequivocally that the junta “have no support” – that “the international community does not accept the coup, and it does not recognize any legitimacy to the regime that emerged from it. […] We will not let this coup stand.”[32]

On 1 December 2021, the UNGA Credentials Committee released a report opting to defer its decision on granting credentials to representatives of the junta in Myanmar (as well as representatives for the Taliban in Afghanistan).[33] On 6 December 2021, the Credentials Committee report was approved by consensus in UNGA Resolution 76/15.[34] As such, Ambassador Kyaw Moe Tun, the representative of the democratically elected civilian government, retained his status and remains the Permanent Representative of Myanmar to the United Nations (notably at the UNGA), pending a future determination.

Between 21 and 27 September 2021, the UNGA held its annual high-level meetings, attended by Heads of State and Governments, as well as ministerial-level representatives. Following an agreement made by the United States of America, Russia and China—three current members of the UNGA Credentials Committee—it was reported that Ambassador Kyaw Moe Tun was permitted to remain in Myanmar’s seat during these meetings, as long as he agreed not to address the Assembly.[35] However, the Ambassador continues to address other plenary and committee meetings attended by permanent representatives.[36] His remarks are consistently critical of the junta and he has aligned himself with the NUG.[37] This ambiguity around Kyaw Moe Tun’s powers at the UNGA further illustrates the uncertainty surrounding the legitimate authority and effective Government of Myanmar.

On 19 January 2022, the ICJ published a press release giving notice of public hearings on The Gambia v Myanmar from 21 February through 28 February 2022.[38] On 28 January 2022, UN High Commissioner for Human Rights, Michelle Bachelet, urged governments to “intensify pressure” on the Tatmadaw to uphold human rights protection and restore civilian rule.[39] The repeated condemnation and lack of recognition of the junta’s rule within the UN system raises serious questions about their ability to represent Myanmar in the coming proceedings at the ICJ.

Overall, State practice and the practice of UN bodies, agencies, and fora (as addressed further below) concerning representation—and related implications for recognition of the Government of Myanmar—have been at times inconsistent, but with the dominant position being to defer the matter with due deference to the Credentials Committee consistent with the UN Charter. In sum, the issue remains unresolved.

(ii) The Matter of Agency

In the verbatim record of the Court’s hearing of 10 December 2019, the Government of the Republic of the Union of Myanmar is identified as represented by “H.E. Ms Aung San Suu Kyi, Union Minister for Foreign Affairs of the Republic of the Union of Myanmar, as Agent; [and] H.E. Mr. Kyaw Tint Swe, Union Minister for the Office of the State Counsellor of the Republic of the Union of Myanmar, as Alternate Agent”;[40] the verbatim records of the subsequent hearings of 11 and 12 December 2019 repeat the same identifications of Myanmar’s Agent and Alternate Agent. In none of the further published notices or documents from the Court since the initiation of proceedings has there been any indication of a change in the representation of Myanmar, nor has there been any such notice published or known from any representative of the State of Myanmar recognized by the United Nations.

As noted above, as a matter of fact reported widely in the media and beyond doubt, the then State Counsellor, Minister of Foreign Affairs and Agent of Myanmar before the Court was, with others (including the Alternate Agent), unlawfully arrested on 1 February and has since then been detained in Myanmar by the Tatmadaw which has controlled communications and undoubtedly obstructed her capacity to exercise recognized authority as identified before the Court. It is unclear whether or, if so, to what extent the Court has expended any effort to communicate with the identified Agent or Alternate Agent of Myanmar before the Court, or whether or, if so, to what extent the Agent or Alternate Agent have sought to communicate with the Court. Specifically, it is unclear whether Myanmar’s Agent and Alternate Agent before the Court have been withdrawn or replaced and, if so, by what exact means in accordance with international law as the Court is required to apply.

In its notice of 19 January 2022 announcing public hearings to be held in The Gambia v Myanmar case to take place from 21 February to 28 February 2022, there is no indication or explanation with regard to the representation of the State of Myanmar.[41]

Two separate and competing positions have been expressed by the SAC and by the NUG. On 24 June 2021, the junta formed a new legal team, led by its “Foreign Minister” Wunna Maung Lwin, to respond to the case brought by The Gambia at the ICJ.[42] In its Announcement (2/2022) of 1 February 2022, the NUG expressly refers to the junta’s unlawful detention of Myanmar’s Agent and Deputy Agent and states that “Myanmar’s Permanent Representative to the United Nations (UN), Ambassador Kyaw Moe Tun, has communicated to the Court that he is the acting alternate agent under the direction of the NUG and is the only person now authorized to engage with the Court on behalf of Myanmar.”[43]

With regard to the lawful authority to appoint an Agent or alternates representing the State of Myanmar before the Court, Senior General Min Aung Hlaing, who has named himself Prime Minister, asserts that actions by the Tatmadaw on 1 February 2021 are both lawful and legitimate by reference to Article 417 of the Myanmar Constitution of 2008[44], which states:

"If there arises or if there is sufficient reason for a state of emergency to arise that may disintegrate the Union or disintegrate national solidarity or that may cause the loss of sovereignty, due to acts or attempts to take over the sovereignty of the Union by insurgency, violence and wrongful forcible means, the President may, after coordinating with the National Defence and Security Council, promulgate an ordinance and declare a state of emergency."

The junta has asserted that purportedly widespread voter fraud in the November 2020 general election risked leading to the disintegration of the Union, necessitating military takeover.[45] The election watchdog, the Asian Network for Free Elections (ANFREL), issued a 176-page report reviewing the observations from the 2020 Myanmar General Elections and concluded that “the results of the elections were, by and large, representative of the will of the people of Myanmar.”[46]

Irrespective of the existence of an ostensible impetus for action under Article 417 of the Constitution, as a matter of stipulated procedure the President, Win Myint, was at the time the person prescribed by the Constitution as holding the authority to act should he so decide. There is no evidence that President Win Myint duly issued a declaration nor in any other way initiated or approved the state of emergency. To the contrary, the President was forcibly arrested absent any lawful authority in an open act of overthrowing the Government. In order for the Commander-In-Chief of the Defence Services (in fact, Senior General Min Aung Hlaing) to obtain legislative, executive and judicial powers, the President would have had to relinquish that power.[47] The President did not do so.

It is clear that neither the relinquishment of power from the Head of State (i.e. President Myint) nor State Counsellor Aung San Suu Kyi occurred lawfully and that, instead, they were both detained, placed in ongoing custody, subsequently charged with crimes and subjected to processes (including convictions) which the NGO Human Rights Watch has called “bogus charges… all about steadily piling up more convictions against Aung San Suu Kyi so that she will remain in prison indefinitely.”[48]

The prevailing factual situation is of contested claims following the coup d’état of 1 February 2021 resulting in considerable uncertainty as to the status of the originally notified Agent, Alternate Agent and possible replacements in the case before the ICJ, together with uncertainty regarding the lawful authority of the State of Myanmar to change the Agent before the Court. It is, however, clear that the Permanent Representative of Myanmar to the United Nations, as considered by the UNGA’s Credentials Committee, is against the junta representing Myanmar before the Court.

IV. Applicable International Law

As a matter of international legal personality, the UN is one legal person as is any UN Member State or State party subject of international law also one legal person. It would render international relations impracticable and unreliable should such primary subjects be conceived as possessing multiple and possibly contradictory personalities. Of course, it is a matter of necessity that natural persons must represent the State.

As a matter of treaty law, the UN Charter (of which the ICJ Statute is appended and forms an integral part) provides in Article 9 for representatives of Member States comprising the General Assembly which has been said to hold “an eminent position among the organs of the UN”[49] and is the only principal organ of the UN in which all UN Member States are represented.

As a principal organ of the UN, and explicitly as “the principal judicial organ” of the UN, the ICJ derives its authority from States and, specifically, its establishment pursuant to Article 92 of the UN Charter. Such authority, as delineated in the Statute of the ICJ, requires the Court to make decisions “in accordance with international law” not least including the UN Charter.