Non-recognition of Unconstitutional Changes of Government: From African Union to ASEAN
By Dr Trung Q.T. Nguyen
Published on 2 March 2025
In the pre-dawn hours of 1 February 2021, military vehicles rolled into Myanmar’s capital Naypyidaw. Senior civilian leaders were detained, and by sunrise, the Tatmadaw had declared a state of emergency, effectively terminating the country’s democratic transition.
While much legal discourse has focused on questions of governmental recognition—as both the State Administration Council (SAC) and National Unity Government assert their right to represent Myanmar—this blog post suggests that the principle of non-recognition might offer fresh perspectives on ASEAN’s unprecedented response to the crisis. In a way, ASEAN’s experiences with the Myanmar crisis could even demonstrate how this fundamental principle of international law can evolve to address unconstitutional changes of government (UCGs).
What is non-recognition?
The principle of non-recognition, encapsulated in the maxim ex injuria jus non oritur (rights cannot arise from legal wrongs), has often been argued to be the essential corollary of the international rule of law. In simplest terms, non-recognition could be defined as a set of legal reactions when (1) identifiable illegal conduct has occurred, and (2) such conduct creates an ongoing ‘situation’ de facto that puts forward a legal claim, which, if ignored, could affect the paradigm de jure of the prevailing normative system. While Tomuschat, in his 1999 course at the Hague Academy of International Law, correctly characterised non-recognition as perhaps the softest legal device ‘ever imaginable’, its significance as the minimum response to illegality, as noted by Lauterpacht, remains hard to dispute. Generally, it is reasonable to contend that the language of non-recognition has appeared extensively in the practices of States and international institutions.
From the United Nations General Assembly’s withholding of South Africa’s credentials and other symbolic sanctions against apartheid’s blatant and gross human rights violations, to the International Court of Justice’s pronouncements regarding the Occupied Palestinian Territory extended to breaches of humanitarian law, non-recognition has demonstrated remarkable adaptability in addressing various forms of international illegality.
Military Takeover: Establishing Grounds for Non-recognition in ASEAN
The application of non-recognition to Myanmar’s crisis presents an immediate challenge: determining whether the forceful military takeover constitutes conduct contrary to international law.
Admittedly, the general corpus of international law and the Association of Southeast Asian Nations (ASEAN) does not directly regulate UCGs. For a long time, ASEAN has demonstrated minimal engagement with norms concerning the rejection of unconstitutional changes of government. Instead, the organisation consistently prioritises its modus operandi of non-intervention, epitomised in its distinctive diplomatic approach commonly called the ‘ASEAN Way’. In other words, unconstitutional changes of government are never a prominent part of ASEAN’s legal discourse, as evidenced by the organisation’s tepid response to Thailand’s 2014 military coup.
Even more complicated, for the last twenty years, non-recognition has become standardised as a proprietary tool against serious breaches of peremptory norms of international law (jus cogens). The delimitation of non-recognition, arguably first articulated by Hans Blix’s analysis in 1970, has developed into serious and authoritative International Law Commission (ILC) codification projects. The 2001 Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), the 2011 Draft Articles on the Responsibility of International Organisations (ARIO), and the 2023 Draft Conclusions on the Identification and Legal Consequences of Peremptory Norms of General International Law (Jus Cogens Conclusion) all concur that only gross and systematic breaches of jus cogens, such as the prohibition of aggression, slave trade, genocide, or apartheid, would necessitate the involvement of non-recognition. UCGs are certainly not part of this established catalogue of peremptory norms. If this restrictive interpretation is adopted, there appears to be no legal basis to ‘not recognise as legal’ the military’s seizure of power in Myanmar.
However, these limitations should not prevent the evolution of non-recognition in state practices, as evidenced by ASEAN’s unprecedented engagement in the Myanmar crisis. While the organisation continues to face criticism for insufficient action, its response marks a significant departure from its traditional non-interventionist stance.
Concerning the first challenge, while it is true that UCGs are never part of ASEAN security identity, this does not mean the ASEAN regional corpus of law lacks relevant norms. For instance, the 2007 ASEAN Charter commits member states to ‘strengthen democracy, enhance good governance and the rule of law’ (Article 1.7) and to adhere to ‘the principles of democracy, the rule of law and good governance’ (Article 2.2(h)). It is these legal foundations that provide normative context to the ASEAN Chair’s statement on 1 February 2021, emphasising the importance of ‘adherence to the principles of democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedoms’ and a ‘return to normalcy in accordance with the will and interests of the people of Myanmar’. Thus, while ASEAN may prioritise non-intervention, its Charter obligations create an alternative legal framework that can justify more assertive responses to severe democratic disruptions within member states.
On the other hand, the restrictive interpretation of non-recognition is not unchallenged. Most notably, former International Court of Justice president Rosalyn Higgins argued in her separate opinion in the Wall advisory proceedings that non-recognition of illegal situations by third parties represents a fundamental principle of international law, one that operates independently of the more nebulous concepts of erga omnes obligations or jus cogens norms. The African Union’s approach to UCGs lends practical support to this broader interpretation. Without engaging in complex debates about whether anti-UCG norms qualify as jus cogens or create erga omnes obligations, the African Union has developed a sophisticated regime of non-recognition measures against unconstitutional takeovers. While its success is acknowledged but remains debated, this framework demonstrates how non-recognition can be deployed beyond the confines of jus cogens violations.
The same can be observed in ASEAN’s context. As the principle of non-recognition historically evolved through state practice rather than treaty codification, it need not be strictly confined to the ILC’s predetermined prescriptions. International legal process theorists have long maintained that international law operates not merely through the neutral application of rules but through ‘authoritative decision-making’ processes. ASEAN has demonstrated this dynamic through its response to Myanmar’s crisis, where it has found ways to employ non-recognition practices within its distinctive institutional framework.
ASEAN’s Non-recognition Practices: From Diplomatic Distancing to Institutional Response
Having established potential legal grounds for non-recognition, we must examine how ASEAN has operationalised this principle in response to Myanmar’s crisis. The content of non-recognition is one of the problematic aspects of this concept, as reflected in Judge Kooijmans’s famous comment in the advisory opinion on the Wall in the Occupied Palestinian Territory: ‘I have great difficulty, however, in understanding what the duty not to recognise an illegal fact involves […]’.
While Judge Kooijmans’s scepticism merits consideration, it need not be fatal to the principle’s utility. Scholarly consensus suggests that the substance of non-recognition is inherently context-dependent, shaped by the specific circumstances and the ad-hoc decisions of relevant institutions. Different scenarios—whether territorial conquest, puppet states, racist regimes, or governments in exile—each demand distinct approaches, institutional frameworks, and diplomatic responses to make non-recognition effective.
In the case of the Myanmar crisis, historical precedents offer several models for addressing questions of governmental legitimacy through non-recognition. The campaign against South Africa’s apartheid regime is particularly instructive. It began with the government’s exclusion and eventual expulsion from various international organizations, most notably the Commonwealth. At the United Nations, the focus was carefully calibrated. Rather than rejecting South African statehood, the challenge centred on governmental credentials, declaring the regime had no right ‘to represent the people of South Africa.’ This diplomatic isolation was reinforced through the severance of sporting, academic, and cultural ties. A similar multi-layered approach can be seen in the African Union’s response to UCGs, where formal proscriptions against coups d’état and mercenary interventions are enforced through a combination of membership suspension, diplomatic isolation, and potential economic sanctions.
ASEAN’s non-recognition practices have manifested primarily through two channels: controlling regime representation and restructuring institutional engagement.
In terms of credentials, ASEAN has adopted an approach paralleling the United Nations’ stance. While the UN Credentials Committee rejected the military regime’s bid to represent Myanmar—maintaining Ambassador Kyaw Moe Tun, who remained loyal to the civilian government—ASEAN implemented its own form of diplomatic distancing. Beginning with the 2021 Summit, formalised through Brunei’s chairmanship announcement on 16 October 2021, ASEAN excluded Myanmar’s military leadership from high-level meetings. This precedent of accepting only ‘non-political representatives’ continued through Cambodia’s 2022 chairmanship and Indonesia’s 2023 leadership, effectively constituting a form of non-recognition of the junta’s claim to represent Myanmar in regional affairs.
The institutional response has been equally significant, though more nuanced. The Five-Point Consensus (5PC) of April 2021, while carefully worded, implicitly bars the junta’s direct access to ASEAN institutional structure and decision-making. Although also agreed by the SAC, the 5PC mandates dialogue among ‘all parties,’ demands cessation of violence, and establishes a Special Envoy mechanism that enables engagement beyond the SAC’s exclusive control.
Evidently, under Indonesia’s 2023 chairmanship, ASEAN began exploring alternative channels for humanitarian assistance delivery, enhancing coordination directly with local communities and civil society organisations. The October 2023 Special ASEAN Foreign Ministers’ Retreat emphasised the need for ‘inclusive national dialogue’ and engagement with all ‘stakeholders’ in Myanmar. Additionally, Foreign Minister Retno Marsudi’s ‘quiet diplomacy’ approach included unprecedented engagement with opposition forces, while the May 2023 ASEAN-US Summit’s Joint Vision Statement notably referred to ‘all parties concerned’. All of these developments signal an institutional readiness of ASEAN as an organisation to restructure its dialogues and cooperation with or without the junta. This is another subtle form of non-recognition through practical measures.
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Through carefully calibrated measures (often deemed ineffective)—ranging from credential control to institutional restructuring—ASEAN has utilised non-recognition principles without explicitly framing them as such. This suggests that non-recognition, rather than being limited to responses to jus cogens violations or territorial conquests, can operate as a flexible legal tool that evolves through state practice and institutional innovation. Closely observing ASEAN’s actions regarding the Myanmar crisis thus provides vital insights into how regional organisations can develop context-specific strategies for addressing unconstitutional changes in government, even within institutional frameworks that are traditionally resistant to interventionist approaches. As noted by Ambassador Ong Keng Yong, ASEAN is now more sophisticated than ever, on par with UN expert organisations. Its agency in the formation and consolidation of international law should be acknowledged with due seriousness.
Dr Trung Q.T. Nguyen is a Research Associate at the Centre for Asia-Pacific Initiatives, University of Victoria.