Myanmar: Testing the Democratic Norm in International Law

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It is official now: history does repeat itself. In 1990, the military regime in Burma, now Myanmar, held elections. To their surprise, the democratic opposition in the shape of the National League of Democracy (NLD) achieved an overwhelming victory. This happened despite the fact that they had taken the precaution of keeping the leader of the NLD, Daw Aung San Suu Kyi, under house arrest well before and during the elections.

Then as now, the military refused to transfer power to the elected representatives. Members of parliament were arrested, tortured and at times killed. Those who managed to evade the dragnet of the military assembled at Mannerplaw in the border region with Thailand and established an opposition government, dedicated to holding in trust the democratic mandate granted by the people of Myanmar.

Traditionally, international practice follows the ‘Tinoco Arbitration’ principle of effectiveness in determining who is entitled to represent a state and its people. This means that whoever manages to capture actual power within a state will be taken to be entitled speak for it at the international level. The refusal of the military to give effect to the Myanmar elections of 1990 helped to change that practice, moving at least somewhat towards the principle of electoral legitimacy, rather than effectiveness of control through the force of arms.

The UN General Assembly, in Resolution 47/144 of December 1992, abandoned its traditional hesitancy to involve itself in the internal affairs of UN member states. It called upon the military regime to ‘take all necessary steps towards the restoration of democracy, fully respecting the will of the people as expressed in the democratic elections held in 1990,’ (para 4). The text also called for the unconditional release of Aung San Suu Kyi, by then in her fourth year of detention (para 9).

A year later, the General Assembly went further, strongly urging the military authorities to transfer power to the democratically elected representatives (Resolution 48/150, para 6). This requirement was supported by direct reference to the Universal Declaration of Human Rights. The Declaration confirms in Article 21 (3) that;

 ‘the will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.’

The then UN Commission on Human Rights consistently amplified these demands (e.g., Resolutions 1992/58, 1993/73, 1994/85, etc).

Needless to say, the military failed to comply. Rather, it took two decades until it felt able to repeat the exercise in democracy. In 2010, a further poll was held, although not a genuinely democratic one. It was boycotted by the democratic opposition and resulted in a controversial win for the proxy parties of the military. In any event, by then, the military had engineered the adoption of a new constitution of 2008, which guaranteed for itself an automatic blocking presence of 25 per cent of guaranteed seats in the Myanmar parliament, whatever the outcome of any electoral process.

It took a full quarter of a century after the poll of 1990, until 2015, for the democratic experiment in Myanmar to be repeated in a more genuine way. The NLD and its associated parties, again led by Aung San Suu Kyi, once more won an overwhelming victory. However, according to the 2008 constitution adopted under the control of the military, she was unable formally to head the newly formed government in the role of the powerful executive President, having a foreign husband and children born abroad. Instead, the designation of ‘State Counsellor’ had to be invented to allow her to assume the role of de facto Prime Minister.

Since then, the State Counsellor has had to manage the precarious balance between attempting to lead a civilian government while remaining under the shadow of the military. The military made it clear throughout that they might take full control at any moment of their choosing, exercising the emergency powers they had granted themselves in the new constitution. This tension became particularly evident in relation to the dramatic situation in Rakhine province. The failure visibly to oppose the military campaign so drastically affecting the Muslim Rohinga inhabitants, leading to a dramatic mass exodus and allegations of genocide, lessened her international standing significantly.

The staggering electoral victory and the strengthened democratic mandate it brought for Aung San Suu Kyi and the NLD last November were likely triggers for the military coup of 1 February—the day the new parliament was meant to be sworn in. In addition, it was rumoured that the powerful Commander in Chief, General Min Aung Hlaing, found himself frustrated by the election result in his attempt to claim the Presidency of Myanmar upon his official retirement from the military later this year.

The military has justified its action with reference to unsubstantiated allegations of electoral fraud. Aung San Suu Kyi is under arrest again, this time facing somewhat odd charges ranging from having violated COVID restrictions to having received bribes of dollars, gold bars and fine silks.

The military coup has now returned the situation back to 1990. As in 1990, the newly elected parliament has been unable to assemble and no new government could be sworn in. As in 1990, many of the democratically elected members have been arrested. As in 1990, there are allegations of severe mistreatment and torture and sadly there are reports of the first deaths in custody. As in 1990, those elected members who have managed to evade the security forces have formed a Committee, and may form a government, to hold in trust the electoral mandate.

There is one difference to the situation in 1990, however. Several diplomatic representatives of the government under Aung San Suu Kyi, who also held the office of Foreign Minister in addition to being State Counsellor, have remained loyal to her and to the democratic process. Most notably, the Myanmar Permanent Representative to the United Nations, Kyaw Moe Tun, condemned the coup when addressing the General Assembly and called for the transfer of power to the democratically elected authorities. The Generals responded by purportedly dismissing him—a request that was ignored at the UN

There are some other changes that have occurred since 1990. The democratic norm in international law has been strengthened. True, Myanmar is not a party to the UN Covenant on Civil and Political Rights, which addresses the principle of periodic and genuine elections in Article 25. However, it has at least signed, although not ratified, the Convention on Political Rights of Women, which confirms the right of all to take part in government through freely chosen representatives along with a commitment to the Universal Declaration on Human Rights. Moreover, Myanmar has acceded to the United Nations Convention on the Elimination of Discrimination Against Women. That Convention determines in Article 7 that:

States Parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right:

(a) To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies;

The principle that the authority to govern shall be based on the will of the people, as expressed in periodic and genuine elections, enunciated in the Universal Declaration on Human Rights and reinforced by the Covenant on Civil and Political Rights, has been consistently reflected in international declarations and decision since the termination of the Cold War.

On 18 December 1990, the UN General Assembly adopted Resolution 45/150, affirming the Universal Declaration and adding that ‘periodic and genuine elections are a necessary and indispensable element of sustained efforts to protect the rights and interests of the governed’ (para 2). The UN World Conference on Human Rights amplified this principle further in the Vienna Declaration of 25 June 1993, confirming that democracy must be based on ‘the freely expressed will of the people’ and that the international community should support the process of ‘strengthening and promoting democracy’ (para 9).

While the universal reach of the democratic principle can no longer be doubted, it has to be admitted that there are significant limitations to its application. The UN General Assembly has consistently adopted resolutions confirming that respect for national sovereignty and non-interference demands that it is ‘the concern solely of peoples to determine the methods and to establish institutions regarding the electoral process’ (e.g., Resolution 49/180, para 2). Of course, this margin of national appreciation in devising a democratic system cannot go as far as to rob the principle of genuine and periodic elections of its core meaning.

In practice, there are at least two firm circumstances where the democratic norm has hard content in international law and practice at the universal level (there is more specific meaning in the Council of Europe area and the Americas). The first concerns counter-constitutional coups. Where a military junta, or another body, displaces a constitutionally established government, it cannot conceivably claim to represent the will of the people so manifestly frustrated by this act. Hence, the traditional rule providing that effective control equals an exclusive right to represent the state is disrupted. Instead, the legitimate government is considered to remain the lawful representative of the state.

This rationale also applies to the second instance of the hard application of the democratic norm. Where a sitting government permits an election to be held, but then refuses to implement the result, that government, however effective, can also no longer conceivably claim to represent the will of the very people who have just expressly disowned it. Again, legitimacy trumps effectiveness.

These two aspects of the democratic norm have not only been acted upon on numerous occasions by the UN General Assembly, but they have also been consistently maintained, and even enforced, by the UN Security Council. The practice started in relation to the coup in Haiti, where a military regime forcibly displaced the newly elected President, Bertrand Aristide. In 1994, the UN Security Council, acting under enforcement Chapter VII of the UN Charter, confirmed that President Aristide remained the legitimate representative of Haiti, however effective the military were in terms of controlling events on the ground. Indeed, the Security Council authorized the forcible removal of the generals with a view to restoring the legitimate government to power.

The democratic norm has not only been applied in relation to the Western Hemisphere, but it is of universal application, as numerous subsequent instances demonstrate, addressing cases as diverse as Burundi, Sierra Leone, Lesotho, Mauritius, Mauretania, Madgascar, Cote d’Ivoire, Guinea, Guinea-Bissau, etc. Indeed, evidencing the fact that this rule is by no means merely a Western proposition or even imposition, the African Union has repeatedly pressed the United Nations to act with consistency and vigour in these kinds of cases.

Evidently, the events in Myanmar fall squarely within both categories of circumstances where effectiveness does not equal a right to represent the state, and where unlawfully seized state power has to be surrendered. Clearly, this was a counter-constitutional coup and it has clearly been identified by the relevant international agencies as such. There was no emergency that could have triggered the provisions of the constitution providing for a military take-over. In addition, there is also the refusal to accept and implement a very clear and unambiguous election result. The result was confirmed by the Myanmar Electoral Commission and international monitors and cannot be impeached by the unsubstantiated and self-serving allegations of fraud put forward by the generals.

The US, the EU and others have already taken initial action in defense of the democratic norm in this instance, imposing targeted sanctions. Similarly, the UN has continued to seat the delegation of the lawful and legitimate government of Myanmar, despite the attempts of the military to displace it.

Given the present geopolitical alignment, it seems likely that the UN Security Council will not be able to progress beyond a condemnation of excessive violence, perhaps other violations of human rights by the military regime and possibly a soft call for a return to democracy. However, action in the UN General Assembly, basing itself on the many precedents noted above, and on its earlier treatment of the situation in Myanmar, may be possible. The precedence of the principle of legitimacy over effectiveness will be tested further as the credentials of Myanmar become an issue for the next, upcoming session of the UN General Assembly, should the situation not be resolved before then.

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Professor Gaetano Pentassuglia says

March 30, 2021

Interesting post. My sense, though, is that it tends to conflate matters of external recognition linked to electoral legitimacy with the intrinsic role of a 'democratic norm' in international law. Both Tinoco and the issue of credentials at the UN have typically dealt with 'external' dimensions (the legal effects of governmental acts on third parties or who should represent the state at the UN); both issues interface with broader questions of (political) recognition and effectiveness (the latter, for example, having previously driven much of the practice on UN credentials).
Stressing the counter-constitutional intervention of the military in Myanmar is obviously very important, but unless it is linked to broader peace and security concerns (as in the case of Haiti) or matters of recognition, it should not detract attention, and the legal narrative, from how to achieve a much wider and deeper process of internal self-determination in Myanmar, way beyond electoral legitimacy per se.