The Union of Myanmar is a sovereign state, where the Capital City is located in Yangon before moved to the Naypyidaw on November 7th, 2005 by the action of Junta’s Military Governance. As known, in the historical background, Myanmar is a country that has been through the grip of a military dictatorship for over six-decade.
Previously, in the brief story of Myanmar, in the 19th century, (in the Konbaung Dynasty),Burma took control of an area that includes a modern territory of Myanmar, also briefly controlled Manipur and Assam. In that era, Britain dominated Myanmar after three of the Anglo-Burma War and thus this country was colonialized by the British. Myanmar got independence in 1948 to be a democratic state but was being coup d’etat by the military in 1962, which General Ne Win wrested the governmental mandate from Prime Minister U Nu, who was in power since 1948. At that phase, this country got passeda tough regime, which gave an unsavory impact, particularly in economic aspect and various inhuman acts, such as against ethnic, where United Nations and many International Organization always reported a significant case about human rights there. In 2011, Junta’s Military was dissolved after the elections in 2010, but this country is still can not refuse all the criticism in the previous measures of the old government to the towards minority ethnic.
In the general elections 2015, Aung San Suu Kyi Party is the winner of the majority parliament, where this is can be the historical point to Myanmar to get a democratization opportunity. Based on the general election result in November 2020, Aung San Suu Kyi’s National League for Democracy Party (NLD) won 396 of the 476 parliamentary seats, while the military-backed opposition, Union Solidarity and Development Party (USDP), only got 33 seats. However, Myanmar’s Military is still the major force in politic, since The 2008 Constitution (which the controversial rules) is granted the military rights to control the government and that is constitution also reward the Tatmadaw Military to get 25% parliamentary seats in the important aspect in the national security sector, which includes the ministries of interior, border, and security affairs. Specifically, even the NLD dominated parliamentary seats, the military stronghold still controls the government. Hence, the military insists refused the result of the election, and the Press Secretary of the USDP, Doctor Nandar Hla Myint believes there is a fraud of the mass elections, and if this case is not handled in advance, this could make damage or political chaos. The General of Military, Min Aung Hlaing also stipulated, the evaluation of elections is indeed a non-fair and dishonest practice. Thus, before the trial was open by the parliament, the coup d’etat happened by the military. The NLD party led by Aung San Suu Kyi began to gain a political arena until finally today Myanmar falls into the hands of the generals again.
This is the second time the military success to dethrone through democratic governance, previously the coup d’etat itself happened many time, such in 1988 when General Ne Win pension from the military and replaced by Sein Lwin who is well known as a person that brutally to the Pro-Democratic, thus he has been beaten back by the mass action, and Doctor Maung Maung replaced him at that time. But not long after that, there is a coup d’etat internal by the military which takes over by General Jaw Maung who has also established a new party, named State Law and Order Restoration Committee (SLORC).
Various international sanctions have been imposed on Myanmar. In 1996, the European Union decided to ban arms sales to Myanmar. The United States has also imposed sanctions since 1988, prohibiting new investment by its citizens in Myanmar in 1997, then closing the gap for imports of products from Myanmar in 2003.
Regarding the actions by Myanmar’s Military, several International Community has constituted Myanmar as a breach of international values and some country has banned a few aspects to Myanmar as mention above, however, how the International Law views it?
International Law Perspective
Based on the UN Charter views, under Article 1 (1) affirmed, should take effective measures to prevent and thrown a threat of peace where have a correlate with Resolutions of the UN Security Council which called upon States not to recognize a certain authority or even decided that the Member States should refrain from recognizing a certain authority would hardly have been necessary if recognition had no legal meaning. It concludes, the prohibition to recognize new governance from the coup d’etat result, because in case of the legal commitment to the democratic government of a State, the other States only may continue to recognize the exiled democratically elected government a revival as a measure for the protection and consolidation of democratic government. Other than that, as examine in Article 1 of the Montevideo Convention on the Rights and Duties of States is has to fulfill 4 qualifications, a permanent population; a defined territory; government; the capacity to enter into relations with the other states. In this convention sight, especially in Government point, it complies with the sovereign government that holds the highest power and is formed to carry out the running of the government of a country. As known, Myanmar is currently being a democratic state as the result in the general elections 2020 where Aung San Suu Kyi has won the vote, thus the state should honor and deem in this democratic regime. However, the military is trying to take over the governance back, this form of breaches the democratic rules, wherein this system did not recognize dualism of leadership, as did by Myanmar’s military. Even Myanmar did not sign and ratified this convention, it still ought to be legally binding, since this is recognized by civilized nations as one of the basic international agreements in international law.
Accordance to the coup of Myanmar’s military is not in line with ASEAN’s Charter which contains many democracy references, wherein in the preamble conduct, “Adhering to the principles of democracy, the rule of law and good governance.” Especially Article 1 lists “strengthening democracy, enhancing good governance and the rule of law as among ASEAN’s main purposes.” And also in Article 2 on the organization’s “principles” includes “adherence to the rule of law, good governance, the principles of democracy and constitutional government.” Therefore, Myanmar as a member of this charter since 1997, ought to uphold the purpose of this agreement.
Subsequently, the Coup D’etat action by Myanmar’s military is a tantamount form of treason towards a democratic system, which the legitimate government is defeated by the military without a concrete reason, lack of evidence, and unclear accusations, that is just a prejudice of fraud in the elections by Myanmar’s military to the Aung San Suu Kyi party, and most United Nations officials and diplomats voiced alarm at the February 1, 2021 coup and the brutal response to some of the massive protests unsteady Myanmar because fails to comply with the basic rule of law principles.
Myanmar’s Military action is also indeed not in compliance with customary international law that honor by many countries, where refuse to recognize any government set up under these circumstances or any Government elected as a result of these illegal actions. For instance, in some state practices, firstly, there is a Canada action that declares all the Organizations of the American State (OAS) won’t recognize any governance that is made by the coup d’etat, which is Norway to the Haiti Government. Secondly, British action that did not recognize the governance in Cambodia since the genocidal Pol Pot Government of Cambodia and the Rawlings Government in Ghana by the public and the media, which considered formal recognition as tantamount to moral approval. Thirdly, the Belgian Government refused to recognize Mao Tse-tung instead of Tshiang Kai-shek as the Government of the Chinese State, and so on. Since based on both principle and State practice of recognition of the government in International Law.
Protest also provoke by the International Community, Britain, and the European Union that refuse those action by did not recognize the new governance, because the way the military did is indeed unprocedural, as affirmed in Tobar and Wilson doctrines of formally denying recognition to governments coming to power by unconstitutional means and combining them with the element of continued recognition of the democratically elected governments forced into exile by coup d’état or revolution. Strengthen in Stimson Doctrine, examine about the condemn all recognition of new situations by third States is an important mechanism in international relations, and this doctrine was the start of a process of customary international law formation for a rule prohibiting recognition of situations resulting from unlawful acts that in line with the international legal order, as a coup of Myanmar’s Military did to the Aung San Suu Kyi governance.
ASEAN (Association of Southeast Asian Nations) role as an international organization has presented in the ASEAN election of Myanmar’s general election in 2020 as a form of election observation that is chasing to get an additional handling a political crisis without a coercive way by ASEAN, which should be more legitimacy to the election process, and this might dilute the Tatmadaw prejudice to justify the coup. Moreover, ASEAN responded to this current issues that represent by Brunei as an ASEAN’s rotating chairmanship stipulated, “dialogue, reconciliation and the return to normalcy” in Myanmar, that statement is indeed a democratic principle in the ASEAN Charter since it implied with a non-coercive form of intervention to the internal affairs that honor by each party. Consider sanctions of a breach of this charter is nonexistent, thus it’s only come with the increased statements of concern regarding Myanmar’s internal affairs from each member in the recent years to condemn the coercive instrument. Even if, there is no significant settlement to Myanmar’s coup, this organization still tried to stands to learn important lessons from its actions for developing regional crisis management and prevention mechanisms to fulfill ASEAN’s aspirations of strengthening democracy.
For the foregoing reason, Myanmar’s Military action is indeed opposed by many sources in International Law, contemplate the democracy is the government of the people and for the people (Hans Kelsen), hence in the democratic system is really honor the freedom of speech and the recognition of fair government, and due to Myanmar’s Military measures to NDL Party that led by Aung San Suu Kyi it ought void because no relevant all on times.