UN Security Council Won’t Respond to Myanmar’s Coup, But the General Assembly Can

In a coup d’état earlier this month, Myanmar’s military overthrew the democratically elected government and arrested State Counsellor Aung San Suu Kyi, along with other government ministers, parliamentarians, and activists. The head of the army, against whom there is credible evidence of genocide and who is currently being investigated by the International Criminal Court for his role in the deportation of over 700,000 Rohingya into Bangladesh, is now running the country.

The robustness of the international response to the coup has implications far beyond the so-called democratic transition in Myanmar. It also determines the message being sent to would-be instigators of undemocratic seizures of power in other parts of the world. They will be watching with interest the extent to which the coup impacts Myanmar’s international economic, diplomatic, and trade relations. As Amnesty International said in its response, “an emboldened military took years of international inaction as a quiet signal that they could oust the civilian government and embark on a spree of baseless arrests without any real consequences.” A lackluster international response will unquestionably embolden others.

The United Nations Special Rapporteur on human rights in Myanmar has called for “decisive action, including the imposition of strong targeted sanctions and an arms embargo.” The Human Rights Council has “deplore[d]” the removal of the democratically elected Government and called for its restoration. The U.N. Security Council for its part has expressed “deep concern,” however is unlikely to do much more because of Russia’s and China’s veto power.

The President of the U.N. General Assembly has condemned the coup, and stressed that “attempts to undermine democracy and rule of law are unacceptable”. However, the General Assembly itself – the main deliberative organ of the U.N. – is yet to formally consider the situation let alone issue a response.

Since the coup, there has been some talk, including in this piece by Matthew Smith, CEO of Fortify Rights, about invoking the General Assembly’s Uniting for Peace Resolution. “Uniting for Peace” is a resolution the General Assembly passed in 1950, which states that if the Security Council fails to exercise its responsibility in relation to a threat to international peace and security, because of “lack of unanimity of the permanent members,” the General Assembly will “consider the matter immediately with a view to making appropriate recommendations to members for collective measures.”

The Uniting for Peace Resolution says that if the General Assembly is not in session at the time, it may meet in “emergency special session,” and that such a session can be requested by a majority of either the Security Council or the General Assembly. A Security Council resolution calling for an emergency special session of the General Assembly is a procedural resolution, and thus not subject to the veto. As such, the Uniting for Peace Resolution describes a procedure by which a concerned majority of the Security Council may effectively transfer a matter to the General Assembly, when the veto of one of the Council’s five permanent members prevents the Council, itself, from taking substantive action.

The Uniting for Peace Resolution is worth raising in relation to Myanmar, if only in order to recall that the General Assembly has in the past committed to meeting and considering a threat to international peace and security (the resolution says that “the General Assembly shall consider the matter…”) when the Security Council fails. However, it is important to note that the General Assembly does not need to invoke the Uniting for Peace Resolution, and it does not need an “emergency special session,” to make recommendations on Myanmar.

The U.N. Charter empowers the General Assembly to make recommendations on any matter within the scope of the Charter. It explicitly empowers it to make recommendations on matters of international peace and security, and on human rights. There is a misperception that the General Assembly cannot deal with a matter that is also on the agenda of the Security Council – such as Myanmar. This is because of article 12(1) of the U.N. Charter, which says that the General Assembly shall not make any recommendations on a matter in relation to which the Security Council “is exercising its functions.” This restriction has been interpreted narrowly. The International Court of Justice has said that the Security Council and the General Assembly frequently deal “in parallel with the same matter concerning international peace and security,” and the U.N. Legal Counsel has said that the General Assembly is not prevented from making a recommendation on a matter that is also on the agenda of the Security Council unless the Council is exercising its functions on the matter at the same “moment.” Clearly the Security Council is not exercising its functions at all in relation to Myanmar, and even if it were, the General Assembly would only need to wait for a “moment” that the Council was not exercising its functions in order for it to consider the matter itself and make its own recommendations.

In the General Assembly’s early years, when the Uniting for Peace Resolution was passed, the Assembly met annually from September to December. The Uniting for Peace Resolution described a procedure by which the Assembly could urgently convene, when out of session. Nowadays, the Assembly is in session year-round, adjourning only briefly before the next year’s session begins. As former Assistant Secretary General for Legal Affairs Larry Johnson has observed,

there is no longer a need to go through the procedural hurdles of calling for an “emergency special session” unless there is a desire to make a political point that the issue should not be treated as if it were business as usual.

The General Assembly’s rules of procedure allow for additional items to be added to its agenda during regular sessions, if agreed by a majority of members present and voting.

Following are some of the things that the General Assembly could usefully do in relation to Myanmar’s military coup, either in regular or in special session. They are listed roughly in order of increasing severity.

  1. It could condemn the coup and call for the release of detainees, the re-instatement of the democratically elected government and the rescission of the state of emergency. Such a call wouldn’t be binding on Myanmar, but it would be a powerful expression of international condemnation and might increase political pressure on Myanmar’s military.
  2. It could pass a resolution condemning the failure of the Security Council, and recommending that the Council impose targeted sanctions on senior military figures, or a mandatory embargo on the supply of arms to the Myanmar military. The General Assembly has made such recommendations to the Security Council in the past (see here, for example).
  3. It could request a special report from the Security Council regarding its response to the coup. Such a request probably wouldn’t achieve much, particularly as the Security Council would not be obliged to comply, but it might help convey the international community’s concern that such a coup can take place seemingly without international consequence.
  4. It could recommend to States that they impose targeted sanctions. States would not be obliged to comply, but there would likely be political pressure on them to do so. Several States have already imposed targeted sanctions on senior members of Myanmar’s military, and a General Assembly recommendation might increase the likelihood of other States coming on board. A General Assembly recommendation for targeted sanctions could also increase the likelihood of consistency and coherence between the sanctions that are in any case being unilaterally imposed, as well as the likelihood of sanctions being designed in a manner that minimizes unintended consequences. The General Assembly could, for example, call for sanctions to comply with the “rules of behavior” set out in the General Assembly’s Draft Declaration on Unilateral Measures and the Rule of Law, which calls for sanctions to be accompanied by human rights impact assessments, and mechanisms to guarantee due process and the availability of judicial review.
  5. Most radically, the General Assembly could effectively suspend Myanmar from the U.N. by refusing to approve the credentials of the representatives of the military junta, when member States put forward their delegates for the General Assembly’s next annual session. The process by which the General Assembly approves the credentials of the representatives of member States is typically a procedural exercise, with the Assembly verifying that administrative requirements have been satisfied. There have been exceptions, however, most notably the Assembly’s suspension of South Africa, by way of rejecting the credentials of its representatives, during the apartheid era. This possibility has been raised previously in relation to Myanmar. A 2008 legal opinionon the feasibility of challenging the credentials of the representatives of Myanmar’s military junta (then the incumbent government) said that “the Credentials Committee may consider … factors such as the legitimacy of the entity issuing the credentials, the means by which it achieved and retains power, and its human rights record.” It concluded that the credentials of the military junta’s representatives could legally be rejected on the basis of the junta’s consistent violation of the “fundamental principles and peremptory norms of international human rights law” and “blatant disregard for the Purposes and Principles of the UN Charter.” The possibility of using the credentials process as a political tool must of course be approached with extreme caution, lest it convey the impression that all governments whose credentials are accepted have been assessed as legitimate and as upholding the purposes and principles of the U.N. – clearly not the case. Such caution must be balanced, however, against the damage that might be done by the international community seemingly condoning undemocratic seizures of power.

None of these things are likely to suffice in themselves to bring about an immediate restoration of democracy in Myanmar. But as the U.N. Secretary General has said, if a return to democracy is to be achieved, we “need to have all possible areas of pressure to make it happen.” This calls for ambitious out-of-the-box thinking, and an understanding that such pressure is unlikely to come from the Security Council.

Image: President of the seventy-fifth session of the United Nations General Assembly, chairs the General Assembly meeting that hears a report of the Economic and Social Council. UN Photo/Eskinder Debebe

 

About the Author(s)

Rebecca Barber

Research fellow at the Asia Pacific Centre for the Responsibility to Protect (APC2P), and a PhD candidate at the TC Beirne School of Law, University of Queensland, Australia. Follow her on Twitter (@becjbarber).