MYANMAR’S MILITARY COUP AND A POTENTIAL CIVIL WAR: A VIOLATION OF INTERNATIONAL TREATY AND CUSTOMARY OBLIGATIONS

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by Tejas Sateesha Hinder     22 February 2021

Introductory Remarks

Myanmar, by aiding and transferring militants, has violated its obligations under the Convention on the Rights and Duties of Duties of States in the Event of Civil Strife and Havana Convention on the Rights and Duties of States in the Event of Civil Strife. The former can be applied considering the fact that there existed a civil strife between the people and the Burmese Government.

Further, the act of aiding militants amounted to indirect armed intervention, thus violating its obligations under the resolutions of the United Nations Security Council (hereinafter “UNSC”) as well as the United Nations General Assembly (hereinafter “UNGA”). Lastly, every State has to take up certain obligations at times of an insurgency and Myanmar was obligated not to generate for fund insurgents, and by doing so it violated its obligations under customary international law. With the act of aiding of militants qualifying as an act of aggression under Resolution 3314 of the United Nations General Assembly and the ILC’s Draft Articles, Myanmar’s act of aiding the militants who took part in attacks over it amounts to a violation of its territorial integrity determined by the right of its people.

Myanmar’s violation of obligations during a civil strife

With the onset of Pro-Burmese and Myanmar-based guerrillas, which was denied by the Union, and hence there existed a civil strife in Myanmar, between the Union and the people. There being a civil strife, Myanmar’s act of aiding amounts to violation of, (i) Convention on the Rights and Duties of States in the Event of Civil Strife and (ii) Havana Convention on the Rights and Duties of States in the Event of Civil Strife.

Article 1(1) of the Convention on the Rights and Duties of States in the Event of Civil Strife, 1929 obligates nations to prevent nationals from participating in any actions of civil strife. In the same regard, Article 3(1) of the Havana Convention provides that states should forbid in supplying arms or war materials with the only exception, i.e. it is allowed when meant for the government. It can hence be very well deduced that assistance to the incumbent government is permissible, not to the insurgent group. Thus, Myanmar was under an obligation not to intervene, but it did so by aiding militants, and hence violated its obligations under the Convention on the Rights and Duties of States in the event of civil strife.

Violation of International law and need for immediate cessation from the boundaries

In its Resolution 1373, The Security Council resolution clearly states that states should not provide any form of support to acts causing widespread panic and prevent people from planning or facilitating such attacks. As under Article 31(3)(b) of the Vienna Convention on Law of Treaties, United Nations Resolutions constitute ‘subsequent practice’ for interpreting United Nations Charter provisions. Further, the Declaration on Friendly Relations states that armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements are in violation of international law. Resolutions of the UNGA are a continuing evidence of State Practice. Resolution 78 adopted by the General Assembly of the Organization of American States reflects the customary law and makes a clear statement for states to strictly observe the principle of non-intervention to ensure peaceful coexistence and provides with an obligation not to support or promote any armed activities against another state. Para 1 and Para 3 of the resolution are relevant in this instance. In addition to this, according to Article 4(g) of Resolution 3314 of UNGA, the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein, amounts to an act of aggression, and Article 5 of the aforementioned resolution states that no justification for any reason, be it political, economic or social, can justify the act of aggression. Therefore, in the present case the act of Myanmar is violative of International Law as under Resolution 3314 of the UNGA and cannot be justified.

Rougier’s ‘Le Théorie de l’Intervention d’Humanité’ notably rejected the idea of unilateral intervention. It is to be understood that states would rarely intervene unless they would derive benefits from such an intervention, otherwise the political cost would be very high. Moreover, in the Corfu Channel case, the Court noted that “respect for territorial sovereignty is an essential foundation of international relations.”

No state may organize, assist, foment, finance, incite or tolerate subversive, terrorist or armed activities directed towards the violent overthrow of regime of another state, or interfere in civil strife in another state. The principle of effective control has been recognized by the same court in cases such as the Nicaragua Case and Bosnia and Herzegovina v. Serbia and Montenegro where the Court relied on the Effective Control test. Therefore, Myanmar, by not promoting and harbouring terrorism and terrorist activities in is violation of its obligations under various aspects of Customary International Law.

Violation of obligation to be undertaken during insurgency

As far as intervention is concerned, “When a foreign state recognizes a state of insurgency, it merely acknowledges the fact of the insurrection, but does not create any new international status between it and the parties to the strife.” The states are barred from providing direct assistance to such groups, the right to provide assistance as a non-neutral pertained only to aiding the incumbent government. Therefore, Myanmar, by aiding and supporting the guerrillas, is in violation of its obligations during insurgency, as was in place.

Conclusion

Myanmar, by aiding militants has violated its obligations under the Convention on the Rights and Duties of Duties of States in the Event of Civil Strife and Havana Convention on the Rights and Duties of States in the Event of Civil Strife. The former can be applied considering the fact that there existed a civil strife.

Further, the act of aiding militants amounted to indirect armed intervention, thus violating its obligations under the resolutions of the UNSC as well as the UNGA. Lastly, every State has to take up certain obligations at times of an insurgency and Myanmar was obligated not to generate for fund insurgents, and by doing so it violated its obligations under customary international law. Hence, Myanmar’s acts are in violation of its territorial integrity.

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