Illegal and Illegitimate: Examining the Myanmar military’s claim as the Government of Myanmar and the international response
Human Rights Council
Fifty-second session
27 February – 31 March 2023
Conference room paper of the Special Rapporteur on the situation of human rights in Myanmar
A /HRC/52/CRP.2
31 January 2023
Summary
Having failed to secure control of Myanmar and recognition by most Member States as legitimate, the military junta, or State Administrative Council (SAC), of Myanmar finds itself at a turning point two years after launching an illegal military coup. As widespread public opposition continues and attacks by its forces on villages intensify, the SAC will step up its efforts to advance its false claim to legitimacy in 2023, including by orchestrating a sham “election.” Its goal is to reverse its international isolation abroad and portray as inevitable its claim as the government of Myanmar to audiences at home, rendering continued popular opposition both dangerous and futile.
Member States of the UN have an important responsibility and role to play in determining whether Myanmar’s military junta will succeed in achieving its goal of being accepted as legitimate and gaining control of a nation in revolt. This conference room paper is presented to Member States as a resource to meeting this responsibility.
The paper addresses the claims of the SAC to be a legitimate government by both examining its claim that its coup was legal under a constitution that it drafted and put into place in 2008 and by applying international standards as established by two core doctrines that have informed the recognition of governments since World War II. The conclusion of this analysis is clear – the SAC’s military coup was illegal and its claim as Myanmar’s government is illegitimate.
The core leadership of the administrative and legislative elements of Myanmar’s democratic government that the SAC prevented from forming have reconstituted in opposition to the SAC. The National Unity Government (NUG), the Committee Representing Pyidaungsu Hluttaw (CRPH), and the National Unity Consultative Council (NUCC) were created to represent the will of Myanmar’s people, with the NUG forming the administrative side of government in this transitional period. The NUG provides the international community with a credible alternative to the SAC. Applying the same international standards of legitimacy used to examine the legitimacy claims of the SAC, this paper finds that the NUG has a far stronger claim to legitimacy.
The paper also examines in detail Member States’ interactions with the SAC, highlighting those actions that have delegitimized or withheld recognition to the SAC, and those actions by Member States that have been used by the SAC to foster the appearance of legitimacy. The Special Rapporteur urges that Member States who support human rights, democracy, and the aspirations of the people of Myanmar publicly reject the SAC’s false claim as a legitimate government and instead recognize the NUG as the legitimate representative of the people of Myanmar. He also urges Member States to reject the sham elections the SAC is planning to hold by August 2023.
Finally, the Special Rapporteur reiterates his recommendation that Member States who stand with the people of Myanmar immediately form a working group of governments to develop and implement a coordinated strategy that can deny the SAC the weapons and resources that it requires, while supporting the people of Myanmar with humanitarian and other forms of non-lethal aid.
