About the authors: Sriya Shubhalaxmi Mishra and Atika Chaturvedi are pursuing B.A. LL.B.(Hons) from the National University of Study and Research in Law Ranchi and are currently in their fourth year of the course.
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Introduction
Many in the international community have been following Myanmar’s difficult political history. When military rule, having lasted 48 years, ended in 2010, many believed that this was the beginning of democracy in Myanmar. However, the military returned in February 2021, overthrowing a democratically elected government and justifying its actions by claiming electoral frauds committed by the winning party, the National League for Democracy (NLD). Many turned to the United Nations expecting resolution, but the UN’s diplomacy had devastating repercussions.
Dire Calls for Action Overlooked
Barring a few relief measures, the UN failed to take any steps to counter the takeover. The relief programs provided food to “food-insecure villages and vulnerable households,” ensuring water, sanitation and hygiene facilities and inculcating child protection services, were also unsuccessful, as they were constrained by various factors such as increase in prices of necessities like food, fuel, interruptions in payments and cash withdrawal system, etcetera.
Furthermore, when the UN special envoy for Myanmar called for a UN Security Council action amidst the rise of violence in the country, the organization remained silent. The UN maintained its silence when the military dismissed Myanmar’s Ambassador to the UN for “betraying the country” after he urged the international community to take the “strongest possible action” to end the coup. While it claimed to not officially recognise the junta as Myanmar’s new government, the UN did not publicly express support for the Ambassador dismissed by the junta.
China and Russia Step in
The UN has formally condemned the coup, presenting an exceptionally unified stance against it with 119 members expressing support for the condemnation. However, the solution to Myanmar’s continuously worseningsituation, which arguably qualifies as a humanitarian crisis as defined by Article 7 of the Rome Statute, is stymied by political diplomacy. With the non-binding nature of the resolution that did pass, the focus must also be on the world powers who abstained from voting in the resolution: China and Russia. China and Russia, two permanent members of the UN Security Council, possess veto power, and are known for supporting the military, and consequently, the coup in Myanmar.
Why then, is the UN, one of the largest international organizations in the world, unable to protect human rights due to political infighting?
Although UN experts have called for an “unequivocal condemnation” of the Myanmar Coup, the organization has not yet reached a collective consensus because of differences in stance taken up by the member states. The UN diplomats clearly stated that infliction of sanctions is unlikely as opposition by China and Russia is inevitably expected.
The Power of Veto and UN’s Purpose
During the General Assembly’s fifth session, the UN’s guiding principle was reiterated to include the maintenance of international peace and security, the removal of threats to peace, and the suppression of acts of aggression.
This UN session also considered the limit that may be placed upon the right to veto. The permanent members are expected to express unanimous support on matters related to transgression of state responsibilityand exercise restraint in their powers to use veto whilst the UNSC is intended to protect the global peace.
Myanmar’s situation, although it does not include other states, has the potential to give rise to an international crisis as the coup is an aggressive and gross violation of fundamental freedom. As such, the UN Security Council must choose how it will uphold international integrity. The coup is no longer a domestic matter as the matter has escalated to a looming refugee crisis which has been implicating other countries.
Can the UN Intervene in Myanmar?
Although Article 2(7) of the UN Charter bars intervention within a state’s domestic jurisdiction, internal militarized conflicts have the potential to cause cross-border disruption by spurring an exodus of refugees, or by a domestic party involving or receiving support from other states.
The Myanmar coup is a crisis that will reverberate for years to come. It is a major, continuous civil disorder that may become a global concern.
This being said, even if ASEAN’s efforts to engage in a meaningful dialogue and UNSC’s condemnation of violation of fundamental freedom, without concord amongst the parent body’s members no decision can be possibly reached. The EU and US have already levied sanctions in the form of freezing of assets, suspension of ties, and redirection of funds.
Despite numerous statements denouncing the coup, concrete actions for restoration of democratic order and release of detainees in Myanmar has not yet been dealt with by the UN in its recent sessions.
A stringent resolution for an arms embargo can only be realized if the UN manages to garner unanimous support from the global community. However, the organization had to water down its initial resolution draft post objections from some member nations. This clearly points to the upcoming hurdles that the UN is going to face to form that unanimous support.
Concluding Note
The UN has resorted to Humanitarian Intervention like in the cases of Somalia and Libya. The ‘Responsibility to Protect’ (R2P) doctrine allows the sovereignty to dissolve when the human rights of its citizens are violated. The doctrine invokes a wide range of measures to mitigate and obviate atrocious crimes including diplomatic engagement and other relevant forms of international assistance. However, there persists a misconception that military intervention is done only in the interests of the Western states.
Whilst various anti-coup protestors implored for the doctrine of R2P to be employed, it is not quite plausible to uphold it in the case of Myanmar as the State itself is the primary offender and is not willing to look after its own citizens. This is aggravated by the Security Council not being able to have a consensus on the actions required to prevent or halt the atrocity crimes.
Hence, at a time when even the Ambassador of Myanmar to the UN, donning an anti-coup perspective and coming in support of the people of the country, is asking for help, the UN should carry out humanitarian intervention in the form of deployment of armed forces by liaising with member nations, and should sever economic and diplomatic relations.
The chaotic situation in Myanmar induced by large scale suppression of civilians’ rights also calls for an immediate action from the International Criminal Court (ICC), which is empowered to suo moto launch investigations into member and non-member states.
Although Myanmar is not a signatory to the Rome Statute, the ICC’s involvement may be facilitated through Article 12.3 of the Rome Statute which empowers a non-party state to accept the jurisdiction of the ICC by lodging a declaration with the Court. Even though its legitimacy on the international stage is unclear, the NUG made a declaration accepting ICC’s jurisdiction with respect to all international crimes in Myanmar since 2002. The NUG has also claimed to have documented more than 400 serious human rights abuses in the country. This declaration may enable the ICC to investigate not only the present military coup but also past ethnic conflicts in Myanmar.
Although the crushing of Myanmar’s nascent democracy has enraged its citizens, who have been facing the brunt of the military since the very first day of the coup, it remains to be seen whether domestic protests will bear any fruit.