Prof. Brad Roth on the Conflict in Myanmar
Brad Roth holds a joint appointment with the Department of Political Science at Wayne State University. He specializes in international law, comparative public law, and political and legal theory. His courses include Law, Authority and Resistance, International Law, International Protection of Human Rights, International Prosecution of State Actors, U.S. Foreign Relations Law, and Political Theory of Public Law. Before entering academia, he practiced law and served as law clerk to the chief justice of the New Jersey Supreme Court.
He is the author of Sovereign Equality and Moral Disagreement (Oxford University Press, 2011), Governmental Illegitimacy in International Law (Oxford University Press, 1999), co-editor (with Gregory H. Fox & Paul R. Dubinsky) of Supreme Law of the Land? Debating the Contemporary Effects of Treaties within the United States Legal System (Cambridge University Press, 2017) and (with Gregory H. Fox) of Democratic Governance and International Law (Cambridge University Press, 2000), casebook co-editor (with Valerie Epps & John Cerone) of International Law, 6th ed. (Carolina Academic Press, 2019), and author of roughly 50 book chapters, journal articles and commentaries dealing with questions of sovereignty, constitutionalism, human rights and democracy. Most recently, he is co-editor, with Gregory H. Fox, of Democracy and International Law (Edward Elgar Publishing, 2020).
Q. How did you choose to pursue this line of scholarship?
A. My scholarship generally focuses on the theoretical framework governing the relationship between international and domestic legal authority. This scholarship draws on international legal doctrine and the observed practice of states and intergovernmental organizations, but also on conflicting traditions in political thought and on the study of comparative legal and political systems. My 1996 Ph.D. dissertation (in the Jurisprudence and Social Policy Program of the University of California at Berkeley) was on the question of “when is a government not a government?” – that is, when is an institutional apparatus that exercises effective control of a state’s territory denied recognition as the state’s international representative? The resulting 430-page book, published by Oxford University Press in 1999, covered the post-World War II history of such controversies globally. I have continued to publish extensively on related topics over the last quarter-century, and served as one of three American Branch representatives on the International Law Association’s 2010-2018 research committee on recognition/non-recognition of states and governments.
The question of recognition of governments is of essential significance because a wide range of legal rights and obligations are dependent on the identification of the source of legal authority to speak for a state. Above all, at stake is what is considered to count as the legitimate use of force in a given territory, as governments may “invite” foreign states to send forces onto the territory. Many international conflicts have included controversies over the authority to issue such an invitation (such as when the Soviet Union was “invited” to send forces into Afghanistan in 1979, or when the deposed Governor General of Grenada “invited” the United States and the Organization of Eastern Caribbean States to overthrow the ruling junta in 1983).
Q. The situation in Myanmar is not a front-page story—what should the average American know about it?
A. Myanmar’s military establishment (the Tatmadaw) seeks to maintain its hold on power, despite overwhelming popular opposition that has been manifested whenever the regime has been prevailed upon to hold free and fair elections. When the National League for Democracy, the party of Aung San Suu Kyi, won a 1990 election in a landslide, the Tatmadaw negated the outcome and imposed a harshly repressive regime for the following two and a half decades. Internal protests and external pressure eventually led to moves toward democratization and an election in 2015, leading to another NLD landslide over the pro-regime party (by a score of 57% to 28%); however, while allowing civilian opponents to assume high offices, the military maintained a decisive share of power. (It should be noted that, although long lauded in the West as a hero of democracy, Aung San Suu Kyi notoriously ended up defending the military’s widely-condemned campaign against the Rohingya, a Muslim minority group in the western part of the country (Rakhine State); as a result, her reputation within global civil society has sharply declined.)
After an even larger defeat for the Tatmadaw’s favored party in the election of November 2020, the military seized full power on February 1, 2021, imprisoning leading elected officials, including Aung San Suu Kyi. According to the Special Rapporteur’s report, “Since the coup, the military has killed thousands by shooting protesters dead in the streets, torturing activists to death in interrogation facilities, burning entire villages to the ground, and launching missiles and artillery shells into civilian encampments.” Over a million civilians have been displaced. Most governments around the world have withheld official recognition from the de facto government, and there has been an effort on the part of elected representatives to gain international recognition of a government-in-exile (the “National Unity Government”). The UN itself has repeatedly postponed resolving the question of whether to accept the credentials of the General Assembly representative of either contestant government.
Q. What is the role of a Special Rapporteur?
A. Here is how the UN High Commissioner for Human Rights website describes the position:
The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Comprising the largest body of independent experts in the UN Human Rights system, Special Procedures is the general name of the Council's independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.
The “Special Rapporteur on the situation of human rights in Myanmar” is a position established by UN in 1992, in response to a previous (1990) coup d’etat that negated a landslide electoral victory for the opposition National League for Democracy (led by the still-prominent Aung San Suu Kyi). The present Special Rapporteur is the former US Congressman Thomas Andrews (D-Maine). The Human Rights Council, in its Resolution 49/23 of 8 April 2022, called upon the Special Rapporteur to “monitor the situation of human rights in Myanmar” and “make recommendations on additional steps necessary to address the ongoing crisis, including through thematic reports and conference room papers.”
Q. How did you come to be selected to contribute to this paper?
A. My “contribution” is exclusively indirect. I am the author of a prominent scholarly work on recognition of governments -- Governmental Illegitimacy in International Law (Oxford University Press, 1999) – and have written extensively on related subjects in the quarter-century since its publication – e.g., “Secessions, Coups, and the International Rule of Law: Assessing the Decline of the Effective Control Doctrine,” Melbourne Journal of International Law 11 (2010), 393-440. Consequently, those advocating to the United Nations on questions of contested recognition have tended to cite me in their advocacy documents. (They do not necessarily consult me in doing so, though they sometimes reach out to me. The published work can be cited irrespective of whether I approve of the cause in service of which it is invoked. In the case of Venezuela, my work was cited in support of recognition of an alternative government, recognition of which I did not personally favor. On Myanmar, however, the advocates for the government-in-exile did contact me, and I held a Zoom seminar for them in November 2021: <https://www.youtube.com/watch?v=M3oua_nwyeY>.)
I have had no direct contact with the Special Rapporteur. But in addition to citing my work extensively in the footnotes of his legal discussion, the Special Rapporteur saw fit to quote me directly in the text of his concluding section:
268. The words of government recognition scholar Brad Roth in 2011 can easily be applied to Myanmar: “Where blatantly thuggish forces impose themselves on a manifestly unwilling political community, deference to the outcomes of ‘internal processes’ cannot be rationalized as respect for the self-determination of independent political communities. Ideological pluralism, however, foundational to the international legal order, ultimately finds its limiting cases, where no internationally respected principles of public order support the governmental pretensions of narrowly self-interested cliques and glorified street gangs.”
Q. What are some ways students or other community members can become more knowledgeable about world news?
A. There is no one way to stay informed, but major newspapers of global reach such as the New York Times and the Guardian and the website of the BBC are generally helpful in keeping up to date. In addition, YouTube is now filled with recordings of academic lectures given by scholars in major institutions, both English-speaking and other. YouTube also provides access to innumerable newscasts and documentaries from respected sources. The trick is to differentiate reliable from unreliable sources; investigation of the sources’ credentials is an important step, but one needs to be aware that not all well-credentialed sources are actually rigorous, and that many important voices are excluded from credentialing processes.