The British government stands accused of caving in to Myanmar’s military junta by allowing the regime to force out its London ambassador.
Legal experts say the UK has boosted the international legitimacy of the brutal regime by not standing up to orders to remove Kyaw Zwar Min, a vocal critic of the February coup that has led to hundreds of deaths.
Mr Minn was last week turfed out of the embassy on the orders of the military, which also threatened him with prosecution if he does not leave his Hampstead residence. He has said he fears for his life if he returns to Myanmar and has appealed to the UK for help.
The UK, which has condemned the “bullying actions” and praised Mr Minn’s “courage”, claims it was obliged under the Vienna Convention to accept the move after receiving formal diplomatic notification.
But international lawyers told The Telegraph the UK was not required to recognise the junta’s authority as the international representative of Myanmar.
Article 43 of the Vienna Convention on diplomatic relations says that an ambassador's job officially ends once the host country has been informed by the sending state.
Critics say that accepting the junta’s demands was a political – not a purely legal – decision.
Legal experts said the UK should match its strong demands for Myanmar’s democracy to be restored with its own actions to support opponents of a regime that has killed more than 700 since seizing power.
Jared Genser, an international human rights lawyer who counts detained Myanmar leader Aung San Suu Kyi among his previous clients, said the UK had no obligation whatsoever to accept his dismissal if it had first made the decision not to recognise the military junta as the legitimate government.
As a matter of international law, grounded in international human rights norms and standards, “this was an easy conclusion to reach,” he said. But by refusing to make that decision, the UK did then have a duty to allow the dismissal.
“The UK has just gone on recognising the military junta as the successor to the democratically-elected government despite all of the good reasons to stand on the side of democracy and human rights and refuse to do so,” he said.
The international community had to address the difficult question of Myanmar’s diplomacy, ultimately through the United Nations, he said.
“This is an egregious case, where the refusal to derecognise the illegally-installed junta has the practical effect of legitimising the coup itself. And it is made so much worse by the landslide victory that was won by the National League for Democracy and its allies in the November 2020 election.”
Professor Robert Volterra, who is representing Myanmar’s ousted civilian government at the UN, described the Foreign Office statements and direction to the Myanmar military to communicate formally on diplomatic relations as “surprising and unnecessary.”
“The UK government invited the military high command of Myanmar formally to step into the role of legitimate representative of Myanmar which was surprising because they did not have to do that to resolve the embassy dispute,” he said.
“It was a deliberate, legally informed, but certainly legally expressed, embracing by the UK government of the Myanmar military high command, which was unnecessary and therefore very surprising.”
Earlier this month, Myanmar’s civilian representatives presented 180,000 pieces of evidence showing rights abuses by the junta including torture and extrajudicial killings, to UN investigators.
Mr Volterra said there were “sound legal and factual bases” to consider the civilian government, which was democratically elected last November, as the legitimate representative internationally of Myanmar.
He predicted a showdown at the UN later this year with Myanmar’s generals who fired Ambassador Kyaw Moe Tun after he urged the international community to help "restore the democracy.” He currently continues in his position despite a withdrawal notice.
Kevin Chang, an international lawyer and former Senior Justice Advisor to the United Nations in Myanmar, said the UK’s course of action indicated “an acceptance of the Myanmar military as, if not legitimate rulers, lawful representatives of the state.”
The UK response reduced “a complex and substantive issue of recognition to a mere procedural matter” and as a permanent member of the UN Security Council, it could risk a domino effect, he said.
“Put simply, the UK is not bound to accept the ousting of Ambassador Kyaw Zwar Minn unless it deems the military regime to be representative of the state of Myanmar,” he said.
“The government is therefore accepting the legality of the military regime whilst being sympathetic to the ousted civilian leaders. I find the actions by the UK regrettable, as such a move could set a precedent for other countries to follow.”
Mark Ellis, the executive director of the International Bar Association, suggested the UK’s actions reflected tactics and politics rather than granting recognition or support to the military regime as the legal representatives of Myanmar.
“The state of Myanmar exists and whether it exists now through a democratic process or through a military coup, the state exists and so the UK is, of course, acknowledging that and must deal with the reality,” he said.
“I suspect the UK, as with other countries, believes that this will not be a permanent scenario, where the military is in power, that they will working towards a transition away from that, and that’s where the politics comes into play,” said Mr Ellis.
“The intersection between politics and law in this diplomatic area is not always smooth and it’s not always just.”
The UK could still alter course and declare the person designated as new ambassador to be “persona non grata,” said Mr Ellis. Any such move would likely be reciprocated with the expulsion of a UK diplomat from Myanmar.
London could also grant asylum to Mr Minn.
Jared Genser said the longer-term hope would be that the UN General Assembly would take a decision to overturn recognition of the junta, which could then enlist support from other governments to expel junta diplomats around the world.
“If the NLD Government now in exile can persuade key states like the US and UK to lead the charge and mobilise support, it can challenge the credentials of the military junta and demand that their diplomats replace its diplomats,” he said.
A spokesperson for the Foreign, Commonwealth and Development Office said: “A country does not require approval from the host country to appoint an interim Chargé d’Affaires from existing diplomatic staff, under the Vienna Convention on Diplomatic Relations. The interim Chargé d’Affaires is not an Ambassador.
“We condemn the undignified, bullying behaviour towards Ambassador Kyaw Zwar Minn and plan to ensure he can live safely in the United Kingdom while he decides his long-term future.”