The SAC Versus ASEAN: The Futility of Legal Recourse

At their emergency meeting on 15 October 2021, ASEAN foreign ministers decided to invite a ‘non-political representative”’ from Myanmar to the 38^th ASEAN Summit, dealing a diplomatic blow to the State Administration Council of Myanmar (SAC) and its leader Min Aung Hlaing (MAH). In response, the SAC refused to send any representative to the Summit, and invoked provisions in the ASEAN Charter in a 22 October press release and subsequent statements to challenge the legality of the foreign ministers’ decision.

The legal merits of the SAC’s position are disputable, bringing into stark relief the dubious nature of its claim to represent Myanmar at ASEAN. After all, this is a political problem, not a legal one. And ASEAN’s basic instinct is always political rather than legalistic.

The SAC has wielded Article 8(2)(a) of the Charter, which entrusts the ASEAN Coordinating Council (ACC), not the ASEAN Foreign Ministers Meeting (AMM), to prepare for the Summit. It is worth noting that ASEAN foreign ministers wear several hats. They are part of the ACC when coordinating cross-pillar and community-building matters for reporting to the ASEAN Summit. When discussing regional political-security matters, they serve as the AMM — ASEAN’s longest standing institution. Although the ACC is procedurally in charge of preparation for the Summit, the decision to exclude MAH is not a run-of-the-mill administrative matter. Its sensitive nature falls squarely within the AMM’s political mandate, and it goes without saying that the ministers made the decision with the blessing of their leaders.

The crux of Myanmar’s legal challenge is based on the claim that the decision was not made through consensus according to Article 20(1) of the Charter. This claim is based on two points. First, not all foreign ministers at the meeting expressed opposition to inviting MAH to the Summit, their sentiments ranging from downright opposition to more sympathetic approaches to relative silence. Second, the SAC-designated foreign minister Wunna Maung Lwin was vehemently opposed to the decision.

On the first point, it is important to note that ASEAN consensus does not necessarily equate to unanimity. Former ASEAN Secretary-General, the late Rodolfo Severino, gave a nuanced explanation that in ASEAN, ‘[c]onsensus on a proposal is reached when enough members support it – six, seven, eight or nine, no document specifies how many – even when one or more have misgivings about it, but do not feel strongly enough about the issue to block action on it. Not all need to agree explicitly.’ This is how consensus was ‘reached’ at the foreign ministers’ meeting. Except for the SAC, no ASEAN member has come out to express reservations about the ASEAN Chair’s statement on the outcome of the meeting.

The second point is only valid as long as the SAC is recognised as Myanmar’s legitimate representative at ASEAN. This remains indeterminate, or ambiguous at best. Despite its engagements with the SAC, ASEAN has been careful in its official and legal communications to avoid giving the impression that the SAC has de jure recognition from ASEAN. The list of ASEAN foreign ministers on ASEAN’s website in 2021 keeps U Kyaw Tin of the pre-coup National League of Democracy (NLD) government as Myanmar’s foreign minister. The ASEAN Secretariat — the depository for ASEAN legal instruments — has not acknowledged the SAC’s ratification instrument of the Regional Comprehensive Economic Partnership (RCEP) Agreement.

It is important to note here that the foreign ministers’ decision does not take issue with Myanmar as a member state. Rather, it questions the legitimacy of the SAC because the issue of its representation credentials at ASEAN remains unresolved.

Granted, the SAC’s cabinet members and officials have been attending ASEAN ministerial and working-level meetings as Myanmar’s de facto representatives since the coup. However, the year-end ASEAN Summitry involves meetings with ASEAN Dialogue Partners and there is the risk of some Western leaders downgrading their representation to protest MAH’s presence at the same table. The stakes are too high for ASEAN’s credibility to run business-as-usual with the SAC at the Summits.

The SAC’s legal challenge also states that linking Myanmar’s domestic affairs with its representation at the Summit goes against the principles of respect for independence, sovereignty, and non-interference according to Articles 2.2(a), (e) and (f) of the Charter. The exercise of non-interference in ASEAN, however, has been much more nuanced as the grouping seeks to reconcile non-interference with the imperative for consultation and collective action on matters that affect ASEAN’s common interests. Non-interference should be interpreted and applied in tandem with other principles of ‘shared commitment and collective responsibility in enhancing regional peace, security and prosperity’, ‘adherence to the rule of law, good governance, the principles of democracy and constitutional government’, ‘respect for fundamental freedoms and human rights’ and ‘enhanced consultations on matters seriously affecting the common interest of ASEAN’. These principles fall under Articles 2.2(b), (g), (h) and (i).

ASEAN has not reached this decision easily. Since the February coup and the military junta’s crackdown on public resistance, ASEAN has painstakingly gone through a ‘gentle and slow process’ of constructive engagement with the SAC in the search for its face-saving exit strategy. The Five-Point Consensus agreed upon at the ASEAN Leaders’ meeting with MAH in April 2021 offered a good starting point. Yet, the SAC has flouted the Consensus on every single point, from hampering ASEAN humanitarian assistance to denying the ASEAN Chair’s Special Envoy access to other parties.

The SAC’s coolness towards ‘ASEAN’s helping hand’ has seriously undermined ASEAN’s credibility, earning the grouping the trending #uselessASEAN hashtag on Twitter. Although ASEAN states are not exactly on the same page about how to deal with the SAC, they share the same concern that the Myanmar crisis has overshadowed ASEAN’s agenda and threatened to derail ASEAN’s external relations. The SAC cannot continue to free ride on ASEAN for legitimation without paying its dues in implementing the Five-Point Consensus. Indeed, it has cherry-picked the ASEAN Charter in pursuit of its purposes, emphasising Myanmar’s equal rights and obligations with other member states according to Article 5(1) of the Charter, but glossing over Article 5(2) on the need for ASEAN member states to take all necessary measures to comply with membership obligations.

It is important to note here that the foreign ministers’ decision does not take issue with Myanmar as a member state. Rather, it questions the legitimacy of the SAC because the issue of its representation credentials at ASEAN remains unresolved. As such, even the SAC’s request to invoke the Protocol to the ASEAN Charter on Dispute Settlement Mechanisms may not hold water.

In short, seeking legal recourse is a meaningless and fruitless exercise for the SAC. Instead, it should make genuine efforts to engage ASEAN in the implementation of the Five-Point Consensus. The SAC still promises to ‘find a peaceful solution based on ASEAN Spirit and ASEAN Way through consultation and negotiation’. Hopefully, this will not be another false promise.

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