The Curious Case of Myanmar and the Global Constitutionalism of Responsibility to Protect (R2P)

Protest in Myanmar
Credit: MgHla (aka) Htin Linn Aye, CC BY-SA 4.0, via Wikimedia Commons

The coups have been particularly seen to be as an anomaly in the new world order which came into being after the Second World War whereby the concept of sovereignty was redefined. The coups are generally not extremely violent in nature and often can be bloodless as well. The coups in the period from 1950-2000 have had a success rate of approximately 50% with 238 of the 471 attempts leading to fruition. The only thing one can conclude is that coups are not a thing of the past and continue to be one of the effective ways of regime change around the world.

On 1st February 2021, the world witnessed that the armed forces seized power in Myanmar in what prima facie appeared to be a full-fledged coup d’état in the country. This was announced in a broadcast of the military news channel. The coup was followed by the detention of key figures in the civilian administration most notably the former leader of the country Aung San Suu Kyi. She has been accused of violating the official secrets act and possessing military equipment like walkie-talkies. The timing of this takeover also raises eyebrows as it occurred on the day the Parliament was to convene for the first time after the elections in 2020 which had given a decisive mandate to the National League for Democracy led by Aung San Suu Kyi.

The ouster of the newly elected government is in contravention to the provisions of the Constitution of Myanmar. This is because the takeover was justified by the proclamation of emergency for a period of 1 year which was later extended up to 2 years. The Constitution permits the transfer of power in the commander-in-chief of the armed forces in the event of an emergency by the virtue of Article 40(c) however the same needs to be in consonance with Article 417 which lays the procedure and states that “the President may, after coordinating with the National Defence and Security Council, promulgate an ordinance and declare a state of emergency.” Presently there are no reports to confirm that this procedure was adhered to and as such makes the regime change completely unconstitutional.

According to the Office of the High Commissioner for Human Rights (OHCHR), at least 700 people are reported to have been killed in the brutal crackdown on peaceful demonstrations by the security forces since the military overthrew the democratically elected government on Feb. 1. OHCHR has also reported that over 3,080 people are detained and there are reports that 23 people have been sentenced to death following secret trials. Around 71 journalists have been arrested in Myanmar since February. 

Michelle Bachelet, the UN High Commissioner for Human Rights warned that the failure of the international community to respond to the murdering and jailing of protesters in Myanmar with united resolve could be disastrous. She added, “[I] fear the situation in Myanmar is heading towards a full-blown conflict. States must not allow the deadly mistakes of the past in Syria and elsewhere to be repeated.” Myanmar citizens have come out in the streets with slogans #WeNeedR2P, #SaveMyammar and “We Need R2P, We Want Democracy”. 

The principle of Responsibility to Protect adopted by the UN World Summit Outcome Document in 2005 stipulates that the international community has a responsibility to protect populations from genocide, war crimes, crimes against humanity and ethnic cleansing. Today, R2P has emerged as a vibrant principle legitimizing humanitarian interventions. R2P was adopted as a response to the failure of the new world order to adequately respond to mass atrocities after the failure to halt the genocide in Rwanda and former Yugoslavia in the 1990s. 

R2P was put into action in more than 80 UN Security Council resolutions, 50 Human Rights Council resolutions and 13 General Assembly resolutions concerning crises in the Central African Republic, Libya, Somalia, South Sudan, Syria, etc. Former Australian Foreign Minister Gareth Evans in his recent article wrote, that “the present crisis in Myanmar demands unequivocally to be treated as an R2P one.” 

During a 19 April 2021 interview, Tom Andrews, the UN Special Rapporteur on human rights in Myanmar said that, “it was definitely appropriate for the international community to act in accordance with the R2P principle and that Myanmar was exactly the situation where we have a responsibility to protect.”

Former UN Secretary-General Ban Ki-moon in an address to the UN Security Council (UNSC) on 19 April 2021 emphasized, “the principle of non-interference in the internal affairs of sovereign states should not be used as a pretext for inaction in the face of serious human rights abuses. ASEAN must make it clear to the Myanmar military that the current situation is so grave that it cannot be regarded only as an internal matter.” He urged the UNSC to move beyond words to collective action and “seriously consider the principle of R2P, using a range of tools at the Council’s disposal.” 

R2P is a collective commitment to end potential crimes against humanity. Since it is a politico-legal doctrine, the application of R2P in cases of human rights violations like in the case of Myanmar is dependent upon the political will of the stakeholders. The sensitivity of geopolitics in the South Asian region due to strife between China and India will dictate the political discourse of R2P in Myanmar. Jurisprudentially, the extra-territorial effect of human rights was not considered as part of international human rights law. Nonetheless, the concept of ‘Extra-Territorial Obligations of States in the Area of Economic, Social and Cultural Rights’ reflects some features with the R2P.

Global constitutionalism is a politico-legal philosophy that advocates for the application of constitutionalist principles in the international legal sphere in order to improve the effectiveness and the fairness of the international legal order. Similarly, R2P is also an effort to improve the effectiveness and the fairness of the international legal order. There is recent scholarship like the works of Blagovesta Tacheva and Garrett Wallace Brown suggest that R2P has now emerged as a master concept in relation to responding to mass atrocity crimes. Some recent works also identify R2P as an emerging global legal or constitutional norm. 

Myanmar crisis is a potential crime against humanity that deserves global protection from the international community. The curious case of the 2021 Myanmar coup d’état can pave the way for how global constitutionalism can restore a sovereign’s democratic constitutionalism. A coup seriously undermines the principle of constitutionalism as the very core of constitutionalism is rule of law and non-arbitrariness in the general conduct of the State. 

The coups effectively suspend the due process of law and enforcement of fundamental rights which are essential to constitutionalism. It also enables non-constitutional actors to perform constitutional duties such as legislating and executive functions. It also ushers an era for non-conformity to the Constitution and treating it as dispensable which later makes it difficult to restore the culture of constitutionalism and rule of law. R2P’s applicability to Myanmar can restore democratic rule, rule of law and constitutionalism in the region.

The views and opinions expressed in this article are those of the authors.

Adithya Anil Variath is a lawyer based in Mumbai, India. He tweets at @AdithyaVariath.

Deep Dighe is a student of law at University of Mumbai’s School of Law.