Estrada doctrine regarding ‘(non)recognition’ of regimes and HLA Hart’s ‘rule of recognition’ in the current Myanmar context: opinion

The recent summit in Jakarta, Indonesia, of the Association of Southeast Asian Nations (ASEAN) was attended by the Chairman of the State Administration Council (SAC) of Myanmar, Senior General Min Aung Hlaing.

The fact that ASEAN invited Min Aung Hlaing despite the many pleas and protests from Burmese, Indonesian, ASEAN and other non-governmental organisations not to do so is a strong (that just falls short of being a conclusive) (implied) statement by this regional body that it does ‘recognise’ the SAC regime as the government in control (‘legal’ government) of Myanmar.

The writer uses the word ‘implied’ (recognition) of the SAC above. For a few decades now (see below) it is the usual (although not invariable) practice of countries around the world that when a new regime comes to power through unconstitutional, revolutionary or through a military takeover they will not, generally, issue a formal statement indicating that they recognise or do not recognise the new regime(s).

A constitutional change of government does not require in international law and practice the issuance of statements concerning recognition or for that matter non-recognition of the new government which succeeded the previous one in the constitutional or usual mode. For example, in the United States when President Biden was sworn in on 20 January 2021 and the posts in the new administration filled in thereafter, there was no statement by any government around the world that they formally recognise or not recognise the new Biden administration. In contrast when Mao Ze Dong established the new government in the People’s Republic of China (PRC) in October 1949 it took the United Kingdom (perhaps) some months before it formally recognised the new (revolutionary) government and it took about two decades for an implied recognition from the United States of the then no-longer new PRC government.

Plethora of recognitions for Revolutionary Council and subsequent regimes of Burma/Myanmar

Coming back to Burma (as it was then officially called), a military coup took place on 2 March 1962 when then military Chief of Staff General Ne Win (6 July 1910?-5 December 2002) and a group of Army officers overthrew the democratically-elected government of the late Prime Minister U Nu (25 May 1907-14 February 1995). At the time of the Ne Win coup in 1962, Min Aung Hlaing and his top cohorts were toddlers; some were not even born then. 

To paraphrase, with bitter irony, a sentence from Ecclesiastes, in Burma/Myanmar "one after another [Burmese] military generations cometh, another and yet another succeeding, indeed (they) abideth (for a very long time)". Within days of the 1962 Ne Win coup many countries, including (but not limited to) the United States, the then Soviet Union, People’s Republic of China, India and the United Kingdom had issued formal statements that they recognised the new Revolutionary Council and Revolutionary government as the new ‘legal’ government of Burma.

Fast forward from March 1962 to September 1988. After crushing a nation-wide uprising which started and continued sporadically from March and which intensified in August and September 1988, a new generation of military officers took over. They brutally crushed what is now known as the ‘Four Eights 8888 Uprising’. They formed the State Law and Order Restoration (SLORC) regime. In contrast to March 1962, no governments issued formal statements that they recognised the SLORC. The then Malaysian Ambassador to Burma (still the official name of the country) presented his credentials within a few weeks of the SLORC takeover and that indeed was the implied and also de jure (as a matter of both ‘law’ and fact) recognition of SLORC. The rest is (or was) history. The SLORC and from November 1997 its successor State Peace and Development Council (SPDC) were the legal governments of Burma/Myanmar based on the plethora of implied recognitions (again please see below) these regimes had received. 

A revived ‘Estrada Doctrine’ regarding not formally issuing recognition (or) non-recognition of new regimes

Genaro Estrada (2 July 1887-29 September 1937) was the Foreign Minister of Mexico in the 1930s. As a Foreign Minister Estrada made a statement on 27 September 1930 that the government of Mexico will not formally issue statements when, in foreign countries, a new government (or) regime came into power through rebellion, revolution or a military takeover. Mexico would continue to have diplomatic missions in other States where new regimes came into power through revolutions or coups and (in a sense) other countries have to ‘infer’ or ‘draw their own conclusions’ as to whether Mexico recognise or not the new regimes.

Simplistically put, that would seem to be the gist of the Estrada doctrine. The name ‘Estrada doctrine’ is the ‘recognition’ (in a difference sense than that stated above and below) of the person who ‘formulated’ this doctrine.

The explicit and official statements of recognition that were issued in March 1962 by quite a few other governments regarding Ne Win’s new ‘revolutionary’ (or more appropriately ‘coup’) government indicated that more than 30 years after its formulation in 1930 governments – at least on that occasion – did not fully adhere to or practice the Estrada doctrine.

Fast forward to May 1979 and to the country of Uganda. The dictator Idi Amin (1925-16 August 2003) who took over in a coup in February 1971 was overthrown mainly as a result of Tanzanian troops invading Uganda and (to use a current cliché in some circles) ‘cancelling’ his regime. Quite a few governments did issue statements formally recognising the new government of Uganda ‘after Amin’.

Just a few months before May 1979 the December 1978/early January 1979 Vietnamese invasion of then ‘Democratic Kampuchea’ resulted in the overthrow of the Khmer Rouge regime which was, in many senses, worse and was an even more atrocious regime than that of Idi Amin. Unlike Amin, the Khmer Rouge were able to consolidate their remnant forces mainly along the Cambodian-Thai border controlling around 5 to 10 per cent of Cambodian territory from 1979 to the early 1980s. ‘Parallel’ and explicit statements of recognition and non-recognition of both the Vietnamese-installed regime and the remnant Khmer Rouge regime issued forth from many governments around the world. Thirty to 50 years after the Estrada doctrine was adopted by the then government of Mexico events in the early 1960s in Burma, late 1970s in Democratic  Kampuchea (Cambodia) and Uganda attested to the fact that it was not always put into practice.

But since the 1980s the Estrada doctrine continue to have a revival, perhaps with slight adjustments or emendations, in the practice of quite a few governments. The United States, United Kingdom, Australia and other governments had made announcements to the effect that they would essentially adopt and practice the Estrada doctrine. Australia announced to that effect in January 1988. The adoption of the Estrada doctrine by Australia was mainly due to the fact that its previous decision in 1987 not to recognise the coup regime in the country of Fiji did not bring any fruitful results (so to speak) and was apparently – in retrospect – not in Australia’s national interest.

In the early to mid-1990s an Australian Ambassador to Burma in response to a query (or protest, if you will) as to why the then Australian government continued to have relations with the then SLORC regime and hence indirectly supporting it, replied that "Australia do not recognise new governments (or regimes) it only recognises new States". So in a sense ‘back to Estrada’ and ‘back to the future’.

The ‘then future’ has now become the present. Among others, ASEAN’s invitation to Min Aung Hlaing indicates that though no ASEAN or for that matter other governments have formally announced that they do recognise or (for that matter) do not recognise the State Administration Council. In a sense actions speak louder than words or statements. 

To repeat what is stated at the outset of the article about the Estrada (doctrine), ASEAN and others do recognise – perhaps only with a few equivocations – the SAC as the ‘legal’ government and competent authority of (and in) Myanmar. (Note that the word ‘legitimate’ which arguably contains moral, ethical elements is eschewed and the more – in a not so complimentary sense of the word – legalistic ‘competent’, ‘legal’ is used).

ASEAN and other governments’ implicit recognition of SAC can be said to be based on ‘external factors’ leading to surmises of external validity of the regime. As regards the internal validity or otherwise (note again the word legitimacy is eschewed) of the SAC a reference to, a brief explanation and application of another jurist and scholar’s work needs to be made.

H L A Hart’s ‘Rule of recognition’ and gauging internal validity

Herbert Lionel Adolphus (H.L.A) Hart (18 July 1907-19 December 1992) was a very influential British jurist of the mid to late 20^th century. In his book The Concept of Law (first edition 1961, posthumous revised edition 1994) among many other jurisprudential discussions and stipulations he laid down the "rule of recognition" to, in part, assess or gauge the ‘internal validity’ of laws within a society. Unlike the Estrada doctrine which, in a few senses, is easier to explain, Hart’s rule of recognition is more complicated and in the course of a general article can only be (in a sense) ‘over-simplified’ and presented summarily. Suffice to state that the word ‘recognition’ in Hart’s ‘rule of recognition’ does not have international law and international relations connotations as such but mainly deals with domestic or internal jurisprudence.

A ‘debate’ Hart had with American jurist Lon Fuller (15 June 1902-8 April 1978) in two articles authored by Hart and Fuller respectively in the 1958 Harvard Law Review would be briefly discussed vis-à-vis the issue of ‘rule of recognition’. Both jurists referred to a particular set of Nazi laws where in elaborate legalese the Nazi laws criminalised public criticisms of the Third Reich and its leaders. In one particular law, the punishments for such Nazi-stipulated crimes as public criticisms of the Third Reich leaders ranged from one day’s imprisonment to the death penalty.

In so few words Hart fully acknowledged the outrageous and morally condemnable nature of the Nazi laws. Hart, however and in effect argued that (at least at the time) these laws were generally practised, implemented and enforced during the Nazi era (between 1934 to early 1945) they were valid laws. Nazi courts, Nazi officials, the German public were aware of the laws, did not openly contest or at least ‘defeat’ the laws, even if some of the people and even a few Nazi judges and officials did not (in their private capacities) approve of or ‘like’ the laws they did (generally) accept, implement and enforce them.

In further elaboration in The Concept of Law Professor Hart wrote that Courts, officials and private persons ‘accept[ing] and employ[ing] [the laws] in the general operation of a system’ (The Concept of Law, revised edition, 1994, page 108) may be one criteria to judge the efficacy of the rule of recognition in a particular society. Hart further wrote that the rule of recognition can (in part) be verified ‘by reference to actual practice to the way in which courts identify what is to count as law, or to the general acceptance of or acquiescence in these identifications’ (Ibid).

Now, the Civil Disobedience Movement (CDM) in Myanmar conducted in opposition to the SAC’s takeover, actions and laws has attracted the attention and admiration of quite a few countries from South Korea to the United Kingdom. A group of Norwegian scholars eligible to nominate Nobel peace prize candidates have nominated the Myanmar CDM to be the recipient of the 2022 Nobel peace prize.

On the other hand, and sadly, a significant majority of judges from the lower courts to the Supreme Court (where the SAC had stacked the Supreme Court dismissing the judges appointed by the previous National League for Democracy government which it had overthrown) do ‘identify’, in not so many words, what the SAC did was ‘lawful’ and to use Professor Hart’s words above not only ‘acquiesce’ but obsequiously do so. True, quite a few brave lawyers are in the forefront supporting the struggle at great personal risk to themselves.

Still, the total control of the judiciary by successive military regimes during the past several decades continues to have a bearing on the present (and indeed the future) judiciary. The current Myanmar judiciary and the executive officials including but not limited to the police, prosecutors and judges are largely enforcing the actions and laws of the current military regime. These personnel would consider that SAC’s decrees and actions "count as laws" and are ‘"lawful".

If H.L.A Hart were to ‘come back’ would he have stated in effect that there is a ‘rule of recognition’ which seems to be followed, generally recognised and implemented by the executive and judicial officials in Myanmar or not?

At the time of the Hart-Fuller debate (discussed in relation to particular Nazi laws in a few pages of the 1958 Harvard Law Review) the Nazi regime had been history for more than a dozen years. That was why both Hart and Fuller were able to express their views a posteriori (‘after the event’). (It needs to be pointed out though that ostensibly during the Nazi era there apparently was no Civil Disobedience Movement in Nazi Germany to the same or comparable extent as in contemporary Myanmar). In contrast the current Myanmar situation (as of late April 2021) is a ‘live’, ongoing event.

It is indicated above that both the international relations and contemporary international law and practice regarding Estrada doctrine and the ‘internal’ application of an aspect of the H.L.A Hart’s rule of recognition sort of or even largely favour Myanmar’s State and Administration Council regime.

Predicament continues unabated

After referring to and trying to apply the doctrines and theories of a politician-scholar Genaro Estrada and jurist and scholar H.L.A Hart perhaps a statement of philosopher George Santayana (16 December 1863-26 September 1952) is pertinent here. Santayana said: "Life is not a spectacle or a feast, it is a predicament." As one watches the ‘spectacle’ of ASEAN, a few complicit powers both governmentally and individually mouthing mere pretensions of ‘concern’ on the one hand and the clichéd, hypocritical ‘non-interference in internal matters’ on the other, the predicament of a significant majority of the Burmese people continues unabated.

Htaw Mi Ta is a pseudonym for a researcher and scholar interested in Myanmar affairs

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