Protesters make the three-finger salute beside a banner featuring Myanmar armed forces chief Senior General Min Aung Hlaing as they take part in a demonstration against the military coup in Yangon on July 3, 2021. (Photo: STR / AFP)

ASEAN and the Problem of Legitimacy

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ASEAN needs to decide whether Myanmar’s State Administration Council has the legal capacity to engage in international relations that has direct impact on ASEAN’s own legal capacity as an inter-governmental organisation.

Since the 1 February 2021 coup in Myanmar, ASEAN has been strongly criticised for conferring de facto legitimacy to the State Administration Council (SAC) by the conduct of business-as-usual meetings with SAC representatives and hosting a leaders’ level emergency summit in April with junta leader Senior General Min Aung Hlaing. ASEAN has to deal with the question of recognition, with the National Unity Government (NUG) formally requesting to be present at the 54th ASEAN Foreign Ministers’ meeting in early August. It is expected that a similar request will be presented at the annual Summit scheduled in October. One of the points in the Five Point Consensus calls for “constructive dialogue among all parties concerned … to seek a peaceful solution in the interests of the people”. This implicitly acknowledges the NUG, and perhaps other parties, as stakeholders in the dialogue.

The coup d’etat in Myanmar poses practical problems for ASEAN in two matters. First, the accreditation of new Myanmar ambassadors to regional capitals is a sign of whether other governments recognise these persons as representatives of the sending government. Top posts in Singapore and Malaysia are presently vacant with ambassadors in Indonesia, Laos, Thailand, and Vietnam appointed in 2017 under the National League for Democracy government due to return at the typical three- to four-year mark. Second, ASEAN is due to sign several legal instruments during the October Summit. These include the instruments of accession to the Treaty of Amity and Cooperation with the Netherlands, Greece, the United Arab Emirates and Qatar, and other protocols such as the deposition of Regional Comprehensive Economic Partnership (RCEP) ratification instruments. The collective aim is for RCEP to enter into force by 1 January 2022. To do so, at least six ASEAN signatories and three non-ASEAN signatories must deposit their instruments by 1 November 2021.

Many questions abound here. Will, for example, ASEAN’s capacity to conclude international legal agreements be affected? What are the implications if the ASEAN-9 without Myanmar were to conclude a legal agreement? Is Myanmar’s submission of a ratification instrument valid under the present circumstances? What are the possible implications for ASEAN legal agreements if one signatory is not the government recognised by other parties? Can a future constitutionally-installed Myanmar government treat such an agreement as ultra vires and refuse to honour the obligations of the agreement?

The question lies in the recognition of competent representatives acting on behalf of a state.

The issue of recognition has divided ASEAN. Traditional recognition doctrine differentiates between recognition of states versus recognition of governments. States must fulfil the four criteria of statehood listed in the 1933 Montevideo Convention, namely: (1) a defined territory; (2) a permanent population; (3) an effective government; and (4) capacity to enter into diplomatic relations with other states.  Once a state meets the legal requirements of statehood, regardless of how constitutional or otherwise its government is, it remains recognised as a state. Even so-called failed states retain their statehood.

The question lies in the recognition of competent representatives acting on behalf of a state. When a government comes to power through unconstitutional means, the legal capacity of the representatives becomes questionable. Things are further complicated when there are competing claims. In the case of Myanmar, the NUG is claiming to be the legitimate government in contest to the SAC. Under international legal norms, a common factor used in recognising governments is the “effective control” test i.e. the degree to which the new government exercises control over its people and territory. However, in practice, the “effective control” test has not been the only criteria being used in recent times. When the elected Presidents of Gambia in 2017 and Cote d’Ivoire in 2011 were prevented from taking office by the incumbents, the international community, in particular the United Nations Security Council, chose to back the persons who did not have effective control. It has been argued that it is the person or persons with democratic legitimacy (where this is prescribed by the constitution) that should be the recognised government. For Myanmar, the SAC passes the “effective control” test, but its constitutional legitimacy is in doubt. Furthermore, the use of force to retain effective control, especially where it involves the prolonged use of excessive military force against unarmed civilians, is anathema to many states.  

It is this last point — the use of force — that makes it most difficult for ASEAN to find consensus on. Many ASEAN states have gone through unconstitutional changes in governments and only rarely has it become an issue, the pro-Vietnamese Heng Samrin government in Cambodia being the main exception. In general, ASEAN governments side-step this issue by recognising states rather than governments. This position alludes to the 1930 Estrada Doctrine, named after then Mexican Foreign Secretary Genaro Estrada, which espouses that the manner in which a government comes to power is wholly a matter of national concern. As such, states should not seek to influence the outcome of an internal power struggle by granting or withholding recognition. The Estrada doctrine dovetails with ASEAN’s non-interference principle because it is then not obligated to announce public recognition of any new government.

Given the upcoming events and agreements, ASEAN may soon need to make a political decision to address the problem of whether the legal status of the SAC will have an impact on agreements that ASEAN enters into as an inter-governmental organisation.  

Is there any alternative for ASEAN? One possibility is to re-visit its adherence to the Estrada Doctrine and relook the recognition issue, even though this will not be easy to achieve consensus on.

International organisations decide on the representation of their members in accordance with their constitutional documents, or in the absence of such guidance, through their members’ decision. Sometimes, it comes down to a vote rather than consensus. For instance, the UN General Assembly’s Rules of Procedure prescribes that a 9-member Credentials Committee will examine the credentials of its representatives. ASEAN has no similar review committee in its Charter. Article 20 of the ASEAN Charter on consultation and consensus puts the decision squarely on the ASEAN Summit. While this is a tough nut to crack, there may not be any easier choices over time. If it goes down this road, ASEAN could consider in the interim allowing both the NUG and SAC to sit in as observers to ASEAN meetings without speaking rights.

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