Two Questions on Coups and Representation before International Courts

Think of Myanmar, and the awful consequences of the military coup which are continuing to unfold. One of these consequences – among the least awful, but among the more legally interesting – is that in the immediate aftermath of the coup it is unclear which set of individuals is the government of that state, entitled to represent it internationally. We’ve recently covered that issue, for example, with regard to Myanmar’s representation in the UN; or think of the question that has arisen in the UK as to who is lawfully the Burmese ambassador, entitled to occupy the premises of the diplomatic mission.

There are many such representation questions, often looked at from the standpoint of recognition of governments. But an especially peculiar representation issue (and as far as I know one underexplored in the literature) is that of who gets to represent a coup-afflicted state, such as Myanmar, in disputes before international courts and tribunals, particularly in those disputes that are already pending. Think, most obviously, of The Gambia v. Myanmar genocide case currently before the International Court of Justice. But there may well be others. Is Myanmar’s duly appointed Agent before the Court still representing that state? (I’m not 100% sure whether some other agent was appointed in the meantime, but at the oral proceedings in the provisional measures stage Aung San Suu Kyi herself was acting as agent, while her alternate Kyaw Tint Swe was also arrested by the junta , so is there a sede vacante here of some kind?). What if the Court receives a letter from an entity claiming to the be the Burmese Ministry of Foreign Affairs, appointing some other person as Agent? And what if the Court receives a similar letter from some other entity, claiming to be the legitimate government of Myanmar, opposing that appointment – there is, in fact, such a rival claimant (the CRPH)? If you were the Registrar or the Judges of the Court, how exactly should you deal with such an interstitial representation question? Do you inevitably have to decide, applying some objective legal criteria, who the present government of Myanmar is, or can you avoid doing so somehow?

A relevant example that comes to mind happened in another ICJ genocide case, the Bosnian one. At one point in the proceedings the Serbian member of the Bosnian tri-partite presidency, then the chair of the presidency, sent a letter to the Court on behalf of Bosnia, the applicant state, appointing a new co-agent. That co-agent then asked the Court to discontinue the proceedings (obviously this was done in agreement with Serbia, the respondent state). Bosnia’s initial agent, however, sent a rival letter to the Court objecting to any discontinuation, and a flurry of correspondence ensued. The government of Bosnia was essentially not speaking with one voice. The Court’s rather elegant solution to that problem was to simply say that it could not establish that the applicant unequivocally wanted to discontinue the proceedings (see more here, at 74; a similar episode occurred ten years after the merits judgment was delivered, regarding a purported application by Bosnia for revision of that judgment). Now, obviously, the two cases are different – the Bosnian case is one of governmental schizophrenia, the Burmese one is of competing, rival governments. But this is nonetheless the closest ICJ example that easily comes to mind (I confess to not having done any further research on the matter). So, dear readers, can you think of any ICJ case, or a case perhaps before the European or Inter-American Courts of human rights or an arbitral tribunal, where a coup or some other contested, revolutionary change of government took place in the middle of pending proceedings, so that the court had to decide on who exactly was entitled to represent the state before it? Note that this is a different issue from that of domestic authorities, including courts, having to decide on questions of governmental status or identity for their own domestic purposes, such as access to deposited funds or property (e.g. Venezuela’s money in UK banks).

And here is my second question, which is about legal ethics. Imagine you are counsel representing a coup-afflicted state in pending proceedings, e.g. in the Gambia/Myanmar genocide case. You might receive competing instructions from rival entities claiming to be the government, i.e. your client, or from only one such entity. Is there any ethical rule that can guide you in such a situation? Should counsel resign from representing the state, because failing to do so can be interpreted as endorsing a coup? Is there a categorical rule to that effect, or does this depend on the nature of the revolutionary change – what if there’s a successful uprising against an autocratic regime? Should you also engage in some kind of objective legal exercise to determine who is the lawful government of the state? Should your conduct depend on the nature of the underlying dispute, e.g. is it about trade or about genocide?  Or are you not bound by any relevant rule and can pursue whatever course of action seems to you to be the most sensible?

To make this scenario more specific imagine that you are a foreign lawyer. You are not an employee of the state or one of its nationals; your family members, friends or colleagues will not suffer from any retribution regardless of what you do. You are also not directly participating in any act of state repression, e.g. you are not a British QC asked to prosecute democratic activists in Hong Kong. It may even be that the rival governments don’t have fundamentally different positions on your case – in Gambia/Myanmar at least the generals and Aung San Suu Kyi were (sadly) not at odds as to how Myanmar should respond to Gambia’s claim. So, again, does a coup or some other revolutionary change produce any ethical obligations for the state’s counsel in international proceedings? Just to be clear, I have no idea what the right answer to this question is. But it seems to me that this is a uniquely international question of legal ethics, without a clear domestic equivalent except in those pending domestic judicial proceedings where the client is a coup-afflicted foreign state.

Again, any thoughts from readers would be most welcome!