In a statement on February 1, 2021, President Joe Biden called the military takeover and imprisonment of elected leader Aung San Suu Kyi in Myanmar a “direct assault on the country’s transition to democracy and the rule of law.” He also threatened to review sanctions on that country and asked the international community to press the Burmese military to relinquish the power it unlawfully seized.
The reason for the coup, according to the military, was the widespread fraud in November’s parliamentary elections which Suu Kyi’s National League for Democracy won in a landslide. This statement disagrees with the country’s electoral commission, which called the military’s claims of fraud as “baseless.” Undaunted, the Burmese military transferred power to Min Aung Hlaing, the country’s top general.
As stated by Anthony W. Pereira, Director of the King’s Brazil Institute at King’s College in London, since the end of World War II military rule has occurred almost exclusively in countries of the developing world. Military coups d’état reached their height in the 1960s and 1970s. Although usually the military promises a quick return to civilian rule this practically never happens, and it remains in power for long periods of time.
The military upheaval in Myanmar highlights a major weakness in worldwide efforts to promote democracy and underscores the need to establish binding international legal principles to ban the recognition of military regimes that result from coups. The institutionalization of such principles together with the creation of the legal mechanisms for applying them would help foster democracy throughout the world.
The Myanmar scenario mimics similar situations in recent history where governments assume power without support from the military. Once confronted with a threat to its political hegemony, the military either overthrows the civilian government or refuses to surrender power to democratically elected civilians.
In the past, overt or implied recognition by Western democracies through ambivalent signs of disapproval encouraged military officers to overthrow constitutional governments. The military relinquish power either when forced by popular will, or when its own incapacity to govern makes its position untenable. This happened to the Greek military junta in 1974 after its debacle in Cyprus, to the Chilean regime under Augusto Pinochet in 1990 and to the Argentine military after the Falklands conflict of 1982.
The General Assembly and its International Law Commission could be called upon to draw up appropriate legislation. As the late UN Secretary-General Dag Hammarskjold once said, the United Nations is “the most appropriate place for development and change of international law on behalf of the whole society of states.”
The non-recognition of coups as a universal principle raises some practical questions, the first one being in applying the principle retroactively, when military regimes are established and have already been recognized.
But what if military forces stage a coup against an oppressive or corrupt civilian regime? An ousted civilian government that has been freely elected by the people should not be denied recognition in favor of a post-coup military regime unless the overthrown government was responsible for gross human rights violations. Further, after a coup, recognition should be withheld until another civilian government is chosen in free and democratic elections.
Who will decide whether an ousted civilian regime was oppressive? Or whether elections staged by the military are free and fair? The logical body to make these assessments is the International Court of Justice at The Hague. The composition of the court and its responsibilities under such an expanded mandate should be decided by the UN International Law Commission.
Making the World Court responsible for decisions involving recognition of governments would prevent the issue from being subjected to the political crosscurrents of the UN General Assembly.
It can be argued that non-recognition of de facto regimes will not by itself restore democracy. It is, though, a significant initial step that could be followed by stronger collective measures. To the contention that non-recognition implies undue interference in a state’s internal affairs, this objection loses validity if non-recognition is a consistent principle of international law as established by the United Nations, and all nations are bound to accept it.
Non-recognition of military regimes is a response to worldwide demands to eliminate the plague of military dictatorships. Once established as a legal principle, it could become a remarkable step toward world peace and justice.