Two Questions on Coups and Representation before International Courts

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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!

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Sebastian Wuschka says

May 12, 2021

Dear Professor Milanovic,

Thank you for raising these two highly interesting questions!

At least in relation to the first one (the decision as to which "government" should be accepted as the one representing a state in international proceedings), investment arbitral tribunals and ICSID annulment committees have recently produced a number of decisions, most notably in relation to Venezuela again. Similar questions also arose in cases involving Libya and Yemen though.

As far as I can see and these decisions are public, they differ in the approach taken. For instance, while I believe the majority of decisions in relation to Venezuela only accepted lawyers appointed by the Maduro government in the proceedings, one ICSID annulment committee (ConocoPhillips v Venezuela, ARB/07/30, Order of 3 April 2020) rejected to exclude additional lawyers appointed by the Guaidó government - https://www.italaw.com/sites/default/files/case-documents/italaw11816.pdf

Questions of this nature have indeed not been much discussed in scholarly writings. Réka Papp has written about the investment arbitration perspective in a chapter to a book Tobias Ackermann and I published at the end of last year (https://brill.com/view/book/edcoll/9789004442832/BP000011.xml). So, this might be of interest.

The most logical step for any international court or tribunal to take would probably be to suspend the proceedings for a certain time, for instance until the situation in the relevant state is more stable again. Of course, in particular in cases involving questions of genocide and grave human rights violations, this will not be in the interest of those the relevant applications before e.g. the ICJ seek to protect. So, even though you raised these aspects only in relation to the second question, the subject-matter of the dispute and the urgency that comes with it might also play a role in relation to the first - i.e. in relation to how a court or tribunal should approach the situation, not only counsel.

Best wishes,
Sebastian Wuschka

Bruno Gelinas-Faucher says

May 12, 2021

Dear Marko,

Thank you for your post. I have a keen interest in those issues and I’m currently working on a paper. Let me share a few thoughts which I have also previously shared in Twitter threads (with hyperlinks to awards and commentaries mentioned below https://twitter.com/bruno_faucher/status/1277951387201142785?s=20)

The issue of rival governments has come up a number of times in the ISDS context with Venezuela. In a nutshell, the Guaidó government has made important efforts to take over Venezuela’s representation in a number of ISDS proceedings. It has been unsuccessful in front of the Valores Mundiales and Favianca ICSID annulment committees. However, US courts have diverged from the two ICSID committees and allowed Guaidó’s representation in enforcement proceedings involving Venezuela. The ConocoPhillips ICSID tribunal declined to rule on the issue and instead allowed representation of both Maduro and Guaidó during the rectification proceedings.

Of course, this begs the question of whether the Guaidó government could have represented Venezuela in the Arbitral Award case in front of the ICJ, especially since the Maduro regime decided to boycott the hearing. There are many things to be said here. First, it appears that the Guaidó government did indeed submit documents to the ICJ to support Venezuela’s claim that the Court lacked jurisdiction. But it did not go as far as requesting to take over Venezuela’s representation, which might seem odd in light of its previous efforts in ISDS proceedings. Some people commenting on Twitter pointed out that this might be explained by political factors. Venezuela’s case appears very weak and perhaps Guaidó doesn’t want to be associated with the loss of a territorial claim which has very deep resonance in Venezuela.

But of course, the more interesting question is what would have happened if Guaidó had indeed requested to take over the representation (a question which might still come up in subsequent phases of the case). On that front, I posit that there would be two main issues to consider. In short, the Court is a UN organ, so it would probably be bound by the decision of the UNGA Credentials Committee which still recognizes the Maduro government. But…and this is a big but…The Netherlands, where the ICJ is based, has recognized to some extent the Guaidó government. This could have an important impact on ICJ proceedings. Article 38(3) of the ICJ Rules seems particularly relevant:

3. The original of the application shall be signed either by the agent of the party submitting it, or by the diplomatic representative of that party in the country in which the Court has its seat, or by some other duly authorized person. If the application bears the signature of someone other than such diplomatic representative, the signature must be authenticated by the latter or by the competent authority of the applicant’s foreign ministry.

It is particularly noteworthy that the acts of the diplomatic representative in the Netherlands do not need to be authenticated by the home country – unlike those of the Agent! Following this reasoning, there is certainly an argument that the Netherlands’ decision regarding diplomatic representation on its territory could open the door to a Guaidó representation at the ICJ.

I’ll leave it at that for now, but I would be happy to share some more if you are interested in the topic.

Marko Milanovic says

May 13, 2021

Many thanks to both for the comments. A reader by email also sends a reference to this case: https://www.icj-cij.org/en/case/147

Dapo Akande says

May 14, 2021

These are great questions Marko! I would like to direct our readers to this post that deals with the Honduras v Brazil case that a reader emailed you about.

Jacques BELLEZIT says

May 14, 2021

Dear Professor Milanovic,

Thanks for underlining those interesting questions which seem to be, indeed, understudied.

An interesting point that I have not seen is the question of the "force majeure" in the representation of States before the ICJ.

Would the Hague Court recognize the Burmese coup as a "force majeure" event, having an impact on the procedure (e.g freezing the delays to submit memorials)?

On this topic, there is an interesting precedent: The PCIJ Order rendered on 26th February 1940 in the case of "the electricity company of Sofia & Bulgaria". In this case, Bulgaria argued of the conflict, the danger to travel through Europe in wartime, and the fact that its Counsel, French Professor Gidel, was summoned in the French army....The Court denied there was " force majeure" and Bulgaria had to submit its Rejoinder.

With this precedent, and if we consider what is the issue at stake between Gambia & Myanmar (genocide, whose prohibition is a jus cogens norm), it would be interesting to see the impact on the procedure....In my humble mind, there will not be any "force majeure" recognized...and this would not lead to specific extends of delays....

Juan Antonio Yáñez-Barnuevo says

June 9, 2021

This post by Marko Milanovic raises very apt questions regarding this type of extraordinary situations.

Among other issues, he asks whether there have been other cases before the ICJ where the question of the representation of a State has arisen following a coup in the country concerned.

A similar situation was presented to the ICJ in October 2009 when a new de facto regime in Honduras, through the Honduran Ambassador to The Hague, filed in the Court Registry an application instituting proceedings against Brazil for hosting the ousted (legitimate) President Zelaya in the premises of its Embassy in Tegucigalpa.

The ICJ - perhaps in a haste - sent copies of the application to Brazil and to the UNSG and added the case to the List with the title "Certain questions concerning diplomatic relations (Honduras v. Brazil).

Brazil took care not to react in any way to the action by the de facto regime, which it did not recognize (as was also the position of the majority of Latin American States and indeed of the United Nations General Assembly, which adopted a resolution to that effect in a matter of days).

Soon thereafter, the Court received a letter from the Minister for External Relations of President Zelaya's Government - under cover of another letter from the Honduran Permanent Representative to the UN -communicating that the Ambassador of Honduras to The Hague was being replaced and that his action had been disowned by the legitimate Government.

In view of that development, the Court decided that, given the circumstances, no other action would be taken until further notice.

Once President Zelaya was peacefully returned to power, thanks in part to the international pressure brought to bear on the authors and inspirators of the military coup, the matter was definitely closed by a further letter of the Minister for External Relations of Honduras, who in April 2010 communicated to the ICJ that Honduras was withdrawing the application that had been introduced.

Consequently, the President of the Court (Owada) issued an Order on 12 May 2010 on behalf of the Court recording the discontinuance by Honduras of the proceedings and ordering that the case be removed from the List.

So in a way it could be said that this was an instance of a "case that never existed" (there have been a few other in the history of the World Court) but still appears in the ICJ's website and it provides a "precedent" of a sort for the kind of situations that you describe.