I greatly appreciate this opportunity to to address you now the subject,
the title of my talk today is it's called revisiting sovereignty and recognition of oppressive governments with a focus of mine.
But as you shall see, it has relevance even to those events that are taking place in in Europe,
especially with Belarus and potentially even with Ukraine.
I'll leave you guessing until the very end when I address those issues.
Now the picture on your screen is the picture of the signing ceremony of the Westralia treaties of sixteen forty eight
that ended the thirty years war in Europe that has been interpreted by some of the most renowned international lawyers.
International relations scholars and former state officials like Henry Kissinger
as establishing the foundational principles of international law and relations,
namely that the principle of legal sovereignty needs absolute autonomy within the territorial boundaries of the state.
And such autonomy means that there can be no limits on what those who claim to exercise
the sovereign powers of the state can impose on their subjects within their territory.
The Lake Fletcher School jurist Neil Gross, writing in the American Journal of International Law in 1948,
asserted that the acceptance of the UN Charter in 1945 brought to mind its European predecessor, the treaties that constituted a piece of Australia.
And he claimed that it was the first of several attempts in Europe and then ultimately the world to establish an international
community of states essentially focussed on sovereignty over their territories and subordinated to no earthly authority.
We, of course, further asserts that the piece of failure was indeed the starting point of modern international law.
However,
he then proceeded to point out that the legacy of the peace of Westphalia was misinterpreted as establishing the principle of absolute sovereignty,
and that would be the focus of much of my presentation today.
Other reputable scholars who have delved into the Treaty of Westphalia also claim that there was a highly accurate interpretation of the treaties,
and they call for a re-examination of what the real legacy of the Treaty Westphalia should be about.
I join those ranks,
and I claim that the Treaty of Westphalia was not only establishing a limited sovereignty based on an enforceable rule of law for Europe,
it should also be regarded as one of the earliest major international treaties on human rights,
focussing in particular on religious rights, which had enforcement mechanisms, although as history has pointed out,
that not perfectly effective ones now to address another jurist, Benjamin Strawmen, the Austrian, a New York University scholar.
Writing in 2008 in the constellations of all states the following Rather than determining the absolute sovereignty of the princes and their estates,
the people you see in the picture,
having the power to determine the religion of their subjects was fairly treaties expressly said that such sovereignty could
only exist as long as each of the states provided minimal protections of all members of the recognised religious sects.
He added And I quote whatever sovereignty the electors, the princes and the estates of the Holy Roman Empire enjoy in their territory,
the private exercise of religion was no longer subject to the sovereignty.
Indeed, the treaties gave the world just six legal rights, and if they were encroached,
they had the right to go through a form of Internet International Secular Adjudication Court for adjudication of their rights based on the treaties.
Now another writer, David Croxton, writing in the International History Review in 1999,
also says that one of the major parties to the West really treaties France claimed that the treaties
allowed legitimate intervention in the affairs of another state to defend the other's fundamental laws,
granting subjects and intermediate bodies religious rights.
Now, some would claim that this was one of the earliest examples of permitted intervention,
which some would say is reminiscent of the disputed right of humanitarian intervention in modern era disputes.
However, that has to be cautious because as we see that it has also been abused by countries such as Russia in using humanitarian intervention,
as we see today, even in the Ukraine. However, I claim that the West really treaties did not establish the principle of absolute sovereignty.
Unfortunately,
that concept has now been used by the most authoritarian states in the world to claim that that is the foundations of international law,
which should be respected and observed at all at all costs.
Now, modern international lawyers have accepted the concept of absolute sovereignty, pointing,
for example, to some of the earliest writers on international law in the 17th century.
They often quote Hugo Groucho's, who, writing in 60 25, made the following statement The Power Pokéstops,
which is called Sovereign Sumer Protestants, whose actions are not subject to the legal controls.
Another is such that they cannot be rendered void by the operation of another human will.
However, as I just pointed out,
the piece of West Philly itself made the prince subject to the legal control by the imperial courts and indeed subject to the
pledge by France and Sweden to enforce the constitutional provisions of the previous regulation relating to the religious sects.
So what do I assert is the real legacy of the piece of history?
It is that sovereignty under the rule of law in Europe was not absolute and could be contingent both externally and into into internal.
And what I am proposing is the concept of the rule of law in Europe,
which was essentially established by the piece of Westphalia should have been
extended globally to make sovereignty under an international rule of law.
Now, Patrick Melton, another writer, describes the misinterpretation of the Piece of Australia in his 2019 book,
titled The Law of Nations and Natural Law, and he asserts that what was happening with these early architects of modern public
international law writing on the legacy of the failure was really a form of report
proposing an absolutism within the framework of the Empire or as the final stage
of the evolution of the Empire into an overarching system of sovereign states.
Sadly, however,
he and others have pointed out that this misinterpretation started almost immediately after the peace of Westphalia itself was concluded.
Also, he also pointed out, as others have pointed out,
that other great architects of public international law like John Podesta writing in the 16th century or emotive battle,
or writing also in 1758, while they also made statements regarding sovereignty as absolute and perpetual
power or as them with the battle argued for so many quality and non-intervention.
However, even these all the architects, after courteous, was also very,
very firm in their claim that there was no presence in the world who was not subject
to the fundamental laws of their societies and those constitutions of God and nature,
and could give their subjects lawful cause for revolting by their tyranny.
Likewise, in in the modern era,
the legendary jurist Lisa Oppenheim in his landmark text in 1985 made the following statement State sovereignty has become conditional.
To win recognition by other sovereign states and a subsequent membership in the family of nations,
we continue the condition of membership in the family of nations involves a contradiction.
A sovereign state must act in a dignified manner.
It must use its sovereignty with restraint by respecting the human rights and fundamental freedoms of its citizens.
In other words, according to Ambassador Oppenheim, it must employ its sovereignty in a non sovereign way now.
Bill Gross, who started the discussion on the misinterpretation of the Treaty of Westphalia,
continued that this interpretation led to an era of absolutist states in Europe who were jealous of their territorial sovereignty.
You claim they were more concerned with the preservation and the expansion of their power than the establishment of a true rule of law in Europe.
Gross continues that in the 19th century, after the Napoleonic Wars and the Congress and consort of Europe,
this misinterpretation of Westphalia continue to lead to the absolutist notion of sovereignty entrenched in The Hague peace conferences,
the League of Nations and ultimately the U.N. charter,
which entrenched the inherent weakness of such a concept of sovereignty in the UN charter itself.
In my book on global governance, human rights and international law.
I assert that the correct interpretation of the legacy of the piece of this failure should
be that it was supposed to be about the legitimation of the exercise of sovereign power,
with limitations on how that power can be exercised against their own subjects and against other states.
Sovereignty and the peace of Westphalia was never intended to be about absolute power,
which includes the right to brutalise his subjects, as many authoritarian governments claim today.
Now, this view is also supported by other modern writers, such as Jean Cohen,
who argues that global legal development has led to a new international piece of political culture of sovereignty,
namely one that has moved from one of impunity to one that focuses on responsibility and accountability.
It is not well known that the first draught of the U.N. charter at Dumbarton
Oaks in 1944 did not contain any real substantial provisions of human rights.
It was only because of the storm of criticism of civil society and middle powers who felt they were left out of the
great powers attempted to impose a self-interest against the interests and structure without the rights protection,
which eventually led to the auditory and aspirational language on human rights in the final version of the UN Charter,
rather than the strong legal language that imposed restrictions on how sovereign states could treat their own subjects.
In contrast,
the 1945 final version of the UN Charter entrenched what I call is the absolutist forms of sovereignty within the clearest legal language.
For example, Article one and Article two four of the charter made territorial integrity political independence of the nation state and
non-interference as a principle conditions of peace and security subject only to the powers of the Security Council.
That body's duty was to enforce a weak global governance system, in my view, this ultimately would mean, as we see today,
that some of the key five permanent members will guarantee not only the absolutist forms of sovereignty of the allies,
but also their own, even if it was the worst atrocities and genocides against their own subjects or the actions of their allies.
And sadly, we are now seeing, even in the context of Europe.
Indeed, this system of protecting the absolutist form of sovereignty showed is early tragic fall.
In my view in the UN Charter with the United Nations Security Council failed to do anything
in the first genocide of the 20th century in East Timor by the state of Indonesia,
which set the stage, in my view, for the inactions leading to the genocidal horrors leader in the Balkans and Rwanda.
So. What I am claiming is that it is now in today in fractured societies that seek to remain democratic,
that we may start seeing finally the democratic world at least.
And I emphasise potentially it is only the democratic world seeking to demand a
re-examination of who and what is entitled to exercise any absolutist forms of
authority and the related issue of whether to refuse diplomatic and legal
recognition of oppressive governments that claim to exercise such sovereign powers.
But keep on suppressing and committing atrocities against their own citizens.
In my view, the two are linked.
And I'd like to quote Eli Louderback, one of the leading exponents of modern public international law that stressed that sovereignty is, however,
more commonly used in its second meaning to describe the jurisdiction and control that those who exercise power in a state may exercise.
So he is drawing a linkage between the notion of sovereignty and the ability of those who want to
exercise the power of the modern state and what they can do in terms of those that those powers.
While the granting of diplomatic and legal recognition of governments by others in the international community,
is often based on criteria which we see now around the world,
such as criterion of effectiveness, for example, control at least of some territory,
the habitual obedience of a majority of the population and perhaps a reasonable prospect of permanence.
However, commentators like Cambridge jurist Federico Prisao have suggested, and I'm like the closest, a sort of mesh,
and I would like to spell out what mesh is a sort of mesh is emerging where a relationship
between effectiveness and legitimacy determines the likelihood of recognition.
I suggest, and I would like to support her view in that the present examples in recent
history show a failure to demonstrate such democratic legitimacy could become
a form of customary public international law against recognition of oppressive de facto governments by major parts of the international community,
and especially regarding the rights of such governments to exercise the sovereign powers of their country.
Now, I am acutely aware that if you're going on public international law especially customary international law,
you also have to obviously satisfy the requirements of practise an opinion yours.
So what are the current examples where there has been a refusal to accept the oppressive
government and an attempt to recognise legitimate governments who have been ousted?
While there are examples,
examples of the non-recognition of oppressive de-facto governments include the following Haiti in the 1991 to the 1994 period Sierra Leone in 1998.
Ivory Coast in 2011. And The Gambia in 2017.
And so we'll discuss. I'm hoping that potentially that could also extend to Belarus.
And whatever happens in Ukraine, perhaps there could also be another example.
In these examples,
where much of the international community sided with an ousted U.S. legitimate government that lacked effective control and the main
goal of the international community in supporting the ousted government was to restore democracy against the illegitimate government.
Now, the pressing the most pressing situation today that demands a refusal to extend recognition,
an oppressive government seeking to exercise the country's sovereign powers.
And instead, the gratitude duly elected officials who have formed a government party in exile and may still
be working in the country should be the situation created by the military junta in Myanmar.
In a report that I and others helped to draught an NGO, a non-governmental organisation,
fortify rights working with the opposition national unity government are asserting
that the atrocities committed by the junta should be brought before the
International Criminal Court by the government in exile and the national unity
government in exile should be regarded as the legitimate body to trigger this process.
Now, some members of the national unity government are outside the country, but key figures, including the acting president,
the prime minister and 70 percent of the cabinet of the national unity government are working inside the country.
No, I referred to you a report where the NGO fortify rights,
and I helped to draught a report outlining the atrocities of the Hunter and the argument that the national
government should be recognised as sufficiently authorised to represent the sovereignty and the people of Myanmar.
I like to put on the screen a picture off the record, which I'll be happy.
I'm sure Oxford University will be happy to send it to anyone who is interested.
This report outlines both the the reasons why the government in exile has should have the right to
represent the sovereignty and the people of Myanmar to gain access to the International Criminal Court.
But what I want to do now is briefly give you some of the most horrendous actions that, in my mind,
my military has been doing since the overthrow of the duly elected government and
as a reinforcement of the type of situation where the international community,
at least the democratic parts of the international community,
should stop thinking about sovereignty in a new light and especially in the context of recognition or non non-recognition of oppressive governments.
So on just reading from this report, which outlines in brief,
there's much more horrific pictures and details about what the good of the junta is doing.
But I'll just give you some of the most of the briefest accounts of some of their worst actions.
So the Myanmar military overthrew the government of Myanmar, duly elected with a huge majority in a coup d'etat on February 1st,
2021, and arrested senior political and civilian leaders and others.
The people of Myanmar immediately protested this takeover with various non-violent tactics,
including through street protests and establishing a national civil disobedience movement,
which which involved many, many, perhaps a majority of government employees refusing to report for work,
essentially bringing to a standstill the daily business of government.
The Myanmar military and police have responded to the peaceful protest and perceived opponents of their rule,
with absolute deadly force murdering and arresting civilians en masse in towns and cities across the country.
The junta and its military and other allied forces have used forced labour, raided and destroyed properties,
blocked and restricts restricted access to the internet and medical facilities.
They've even attacked health care workers and vehicles and terrorised the global population, the general population at the time of writing the report.
There was an acknowledgement that the country had killed more than 900 men.
The latest reports of weapons now coming close to over 2000 and the junta has
arrested and detained more than 9000 people between February 1st and April 15,
2021, alone. That number has dramatically increased to sadly.
However, this this these actions are referred to have not just happened more recently,
it's also happened in the past where they've targeted communities and ethnic states and directly affected millions of people.
If forcefully displaced many of these ethnic communities, particularly along Myanmar's borders,
they have raised thousands of ethnic villages throughout the country and killed untold numbers of people in these ethnic communities.
They have also, as is now well known, engaged in genocidal acts against the Rohingya within the minority.
And essentially, we now see those claims of genocidal acts before the International Criminal Court in an action brought by The Gambia,
which the court has issued its first provisional provisional measure and now is determining whether
to go forward with a fuller discussion of the actions of the country in terms of the genocidal acts.
So given these horrific actions by the oppressive military junta, fortify rights,
and I are claiming that the national unity government should have the authority to represent an act of behalf of my and.
Why the military, why the military is claiming. That it is the legitimate government of the country.
We are claiming that they do not have the exclusive ability to represent the state instead based on the examples which are given Haiti,
Sierra Leone and other examples. If a significant number of states can are recognising the national,
the government rep to represent the sovereignty of the state and the people of international law,
I suggest that it could significantly address some of the atrocities of the Hunter.
Now, the national government already is getting recognition at the highest levels.
They have met with the highest representatives of the US, UK, Japan, France, Ireland, the European Union and many officials of the UN.
Indeed. On June 30th, 2021, one hundred and fifty senators from France signed a resolution to officially
recognise the national unity government as the official government of Myanmar.
The United Nations special rapporteur on human rights in Lyon, Thomas Andrews,
also seemed to be moving in the direction of recognising the right of the national governments to represent the people of Myanmar.
In a statement to the UN Human Rights Council on July seven, 2021,
it urged member states to have the national government be embraced as laying the groundwork for a new unified my mom.
He claimed that the national unity government has taken the historic step of welcoming,
in particular the Rohingya ethnic minority back into the national fabric of Myanmar and has guaranteed them justice and full citizenship rights.
In addition, they are also coordinating humanitarian assistance into the country and are seeking to get
international justice and accountability for the victims of all the atrocity crimes off the Hunter,
including access through the International Criminal Justice, the International Criminal Court.
If both fortify rights and I are claiming that they should have their sovereign rights to represent the people of Myanmar,
how would that happen with the International Criminal Court now if the direction of the government wants to access?
Of course, they have two options.
The first one is to lodge a declaration under Article 12 sub three of the Rome Statute to specify the jurisdiction of the court.
The second option is to formally accede to the Rome Statute,
which involves proposing the instrument of accession with the UN general secretary general,
who then would have to consider the responses from other states and consider the advice from the General Assembly on
whether the national unity government qualifies as the authorised representatives of a sovereign government of line up.
However, even if accession is successful at the U.N.,
there is a chance that a state party in the assembly of state parties to the Rome Statute, which established the court,
could challenge the validity of the accession, that party would then have to decide on how to settle the dispute,
either by a vote or by seeking an action seeking a position at the International Court of Justice.
My advice has been to lodge a declaration on Article three that states that my law exceeds to the jurisdiction of the court,
whose success depends on acceptance of the declaration by the Registrar of the court,
who then transmitted to the Office of the Prosecutor for further consideration and possible
jurisdictional hearing before a trial court in the same manner as was done with Palestine.
And that was that the International Criminal Court, when there was an attempt to have Palestine, accede to the formal jurisdiction of the court.
A declaration by the national government on Article three of the statute could provide
an immediate jurisdiction of the court to address the specific atrocity crimes,
including past crimes, including the genocidal acts against the Rohingya.
In my view, if the court were to accept such a declaration,
I suggest it would be a modern day let a legacy of the peace of Westphalia as properly interpreted.
It should represent a modern-day concept of legal sovereignty that affords the state legal personality in international law.
But it also denies that this confers absolute autonomy on those who govern without interference.
If it commits international crimes against its own citizens,
recognition of the national unity government to stop this process would be to recognise, in my view,
a form of oppositional sovereignty within a country that could and should be recognised as a
growing practise in international and constitutional law at the time of delivering this lecture.
As we all now know, there was a similar situation that has arisen in Sudan, which also has a military usurping power,
even though it too has been involved in the most serious crimes of genocide.
And certainly, we have also seen it with the Belarus, with the refusal of the government to accept the election in that country and if,
sadly, if Ukraine is, which has been invaded by Russia with the aim of establishing a puppet regime in Ukraine,
I fully expect that the democratic community would at least refuse to recognise
that puppet regime and recognise the legitimate government of sovereign state.
In conclusion, I urge democratic states to recognise the sovereignty of the people of Myanmar, as represented by the national unity government,
and support their desire to accede to the jurisdiction of the International Criminal Court under Article three of the Rome Statute,
thereby being an example of the true legacy of the peace of Australia.
So stop it and I welcome the discussion of what I've just been presented.
Thank you very much.