In the first few months of this year, U.N. bodies have dealt a major blow to the efforts of the Burmese people to achieve democratic governance.

Ever since the democratic transition in Myanmar was derailed last year in what is now increasingly being described as a failed military coup, Myanmar’s elected parliamentarians have been working to get the democratic transition back on track. As part of this effort, Myanmar’s fledging National Unity Government (NUG) – formed shortly after the coup by a committee representing Myanmar’s ousted parliamentarians – has been vying for the right to represent Myanmar in international fora. This has forced U.N. bodies to decide who should be allowed to represent Myanmar: nascent civilian government, or military junta.

The handling of this issue by U.N. bodies has been characterized by inconsistency, lack of coordination, lack of regard for the purposes and principles of the U.N. Charter, and lack of regard for the right of the Burmese people to have their voices heard. This was highlighted most recently by the decision of the International Court of Justice (ICJ) in February to allow the junta to represent Myanmar, and by the decision of the Human Rights Council to deny Myanmar a seat at the table altogether – due to not wanting to decide between the two competing authorities.

The upshot of this is that U.N. bodies have been either boosting the legitimacy of the junta (in the case of the ICJ) or denying the Burmese people the right to be represented at all (in the case of the Human Rights Council). Instead,  they could bolster democracy efforts in Myanmar by recognizing the nascent civilian government – in the same way that the U.N. has bolstered nascent civilian governments in the past.

Myanmar’s Representation in U.N. bodies: 2021

In the months following the coup, Myanmar was represented at the Human Rights Council and the U.N. Economic and Social Commission for Asia and the Pacific (UNESCAP) by a representative of the junta, while simultaneously at the General Assembly by Ambassador Kyaw Moe Tun, representing the civilian government. At this early stage, the approach taken by these bodies could perhaps be excused. Perhaps the Human Rights Council and the UNESCAP simply accepted without question the individual previously accredited as representing Myanmar; or perhaps, as former Under-Secretary General of Legal Affairs Larry Johnson suggested, they thought it was “better to have the ‘murderous, illegal regime’ at the table to ‘face the music.’”

In the latter half of 2021, the World Health Organization (WHO), the International Labor Organization (ILO), and the Human Rights Council opted to exclude Myanmar from their meetings altogether, rather than decide on the issue of representation. These decisions could perhaps be excused with reference to General Assembly Resolution 395(V) (1950), which states that when the question of a State’s representation at the U.N. “becomes the subject of controversy … the attitude adopted by the General Assembly … should be taken into account” by other parts of the U.N. At the time of the WHO, ILO, and Human Rights Council meetings in the latter half of 2021, the General Assembly had not yet adopted any “attitude” on the matter of Myanmar’s representation. The WHO and the ILO both said that their decisions to exclude Myanmar were made “pending guidance from the United Nations General Assembly.” To the credit of those organizations, the wording of their decisions could perhaps be read as an appeal to the Assembly for guidance.

But if these were the reasons for which the Human Rights Council, WHO, and ILO opted to exclude Myanmar from their meetings in 2021, they do not – for reasons described below – hold water in 2022.

UNESCO Allows Representation; General Assembly Decides Not to Decide

In November 2021, the U.N. Educational, Scientific and Cultural Organization (UNESCO) took a different approach. It opted to defer its decision on Myanmar’s credentials, but – in contrast to the approach taken by the WHO and the ILO – still allowed Myanmar to be represented by Ambassador Kyaw Zeya, appointed by (and still endorsed by) Myanmar’s civilian government.

At the General Assembly, the NUG and the military junta both claimed the right to represent Myanmar, submitting competing paperwork to the UN Secretariat in August 2021. At its meeting in December 2021, the General Assembly could have accepted the credentials of the NUG, thus sending a signal to the U.N. system regarding which authority should be permitted to represent Myanmar on the world stage. But instead, the Assembly accepted the recommendation of the Credentials Committee to “defer” its decision on Myanmar. In doing so, it left U.N. agencies without explicit guidance on the question of who they should allow to represent Myanmar. Fast track to March 2022, and still the General Assembly has not provided such guidance to the U.N. system, resulting in incoherence and dysfunction throughout the U.N. system with regards to Myanmar’s representation. It did not – and does not – have to be this way.

 The General Assembly’s rules of procedure say that “any representative to whose admission a Member has made objection shall be seated provisionally” until the Assembly decides otherwise. This has been interpreted to mean that at the start of the Assembly’s annual sessions, previously credentialled representatives will be seated provisionally until the Credentials Committee has met and the credentials of delegates have been newly approved or rejected. Thus, the Assembly’s decision to defer its decision on Myanmar’s representation meant, by default, that Ambassador Kyaw Moe Tun – now speaking for the NUG – was permitted to remain in his seat, without the Assembly having explicitly said so.

 The General Assembly has deferred its decisions on credentials before. But when the Assembly has done so previously, usually it has stipulated that the deferral is “on the understanding that the current representative will remain in place with all the same rights and privileges of other representatives” (see, for example, decisions on Guinea, Madagascar, Afghanistan and Guinea Bissau). While a statement such as this does not send as clear a signal as actually accepting the credentials of the preferred representative, it does provide some guidance to other parts of the U.N. regarding who should represent the State in question. In relation to Myanmar in December 2021, however, the Assembly deferred its decision on representation without stipulating that the deferral was “on the understanding” that Myanmar’s previously-credentialled representative would remain provisionally seated.

This is not to suggest that other parts of the U.N. can claim they have no indication at all regarding the “attitude” of the General Assembly – to quote Resolution 396(V) – on the matter of Myanmar’s representation. The Assembly’s “attitude” on that question is discernible from: (a) the Assembly’s acceptance, albeit only by default, of Kyaw Moe Tun as Myanmar’s representative at the Assembly’s 76th session; and (b) its resolution of June 2021, calling on Myanmar’s armed forces to respect the results of the general election and to allow the “opening of the democratically elected parliament.” By reason of Resolution 396(V), the various organs and specialized agencies of the U.N. are expected to take this “attitude … into account” when making decisions on Myanmar’s representation.

The problem, however, with the General Assembly having equivocated on the matter of Myanmar’s representation and failed to provide express guidance to the U.N. system at large, is that its “attitude” is not being followed by the various organs and specialized agencies of the U.N. The result is that the Burmese people are being represented in some bodies by an unelected military junta; and in others are being denied representation altogether.

Myanmar’s Representation in U.N. bodies: 2022

In February 2022, the NUG made a statement to the International Court of Justice (ICJ), asserting that in the genocide case brought by the Gambia against Myanmar, the NUG should be regarded as the “proper representative of Myanmar.” That statement notwithstanding, the ICJ subsequently accepted the right of the junta to represent Myanmar. A group of international experts working to support human rights in Myanmar described that decision of the ICJ as “irresponsible,” a “total affront to the Myanmar people” and a “high point in UN dysfunctionality.”

At the Human Rights Council, Myanmar has been unrepresented at the 49th session, running from Feb. 28 through April 1. This meant that the “interactive dialogue” on human rights in Myanmar took place without anyone speaking for those whose rights were being discussed – as was the case at the Council’s 48th session – and that consideration of the report of Myanmar’s Universal Periodic Review (UPR) was postponed until the Council’s 50th session. The UPR is a process by which all States have their human rights records periodically reviewed by other States. Reviews take the form of an “interactive discussion between the State under review and other UN Member States,” during which the State under review is accorded the opportunity to describe the actions it has taken to fulfil its human rights obligations. Obviously, the value of proceeding with this exercise without the participation of the concerned State is open to question; but on the other hand, not having Myanmar subjected to this process at all, due to its not being represented in the Council, is scarcely a better outcome.

Why Should the U.N. Recognize the NUG?

For most of the 20th century, questions relating to which authority should be regarded as the government of a State turned almost exclusively on the question of who exercised effective control. As expressed in the much relied-upon Tinoco Claims Arbitration (1923), “[t]he issue is not whether [a government] assumes power or conducts its administration under constitutional limitations established by the people during the incumbency of the government it has overthrown” but whether it has “established itself in such a way that all within its influence recognize its control.” As concerns international organisations, there is a simple, practical reason to abide by this: if organisations recognize an authority that lacks effective territorial control, they may find themselves directing decisions and recommendations to an authority that has the political will but not the capacity to actually act upon those decisions and recommendations.

This concern notwithstanding, the practice of international organizations since the 1990s attests to an increased appreciation of the fact that decisions regarding the representation of governments can influence the democratic process. Where it has been felt that the granting or withholding of recognition may undermine the legitimacy of a regime that has come to power by force and support a democratic transition, the representatives of nascent democratic governments have at times had their credentials recognized, and those of unconstitutional/undemocratic regimes have at times had theirs denied. Thus, the General Assembly accepted the credentials of deposed governments in Liberia, Haiti, Sierra Leone, and Honduras, despite those governments lacking effective territorial control. In situations of contested governance in Guinea, Madagascar, Afghanistan, Cambodia and Guinea Bissau, it declined to recognise the credentials of regimes that won power by force – again, irrespective of the matter of effective control. In these situations where the decision on representation has not reflected the facts on the ground, it has typically been the expectation of decision-makers that the scenario of a State being represented by an entity that lacks effective territorial control will be short term – and indeed, this has most often (albeit not always) been the case.

Decisions by international organizations to allow the junta to represent Myanmar buck this trend, and risk legitimizing the junta as well as unconstitutional seizures of power more generally. Decisions to exclude Myanmar from international fora altogether are not much better, because while defensible from a legal perspective, they deny the Burmese people the right to be represented just when they most need to be heard.

In the case of the ICJ, and with particular reference to the genocide case against Myanmar, one might argue that a decision by the Court to recognize a nascent civilian government may result in the ‘wrong’ government being held to account. But as the Court observed in the opening of the proceedings against Myanmar, “the parties to a contentious case before the Court are States, not particular governments.” It is not the military junta that is on trial for genocide before the ICJ, but the State of Myanmar, the nascent civilian government of which now supports “the cause of justice for the Rohingya people.” And as the NUG appreciated in its declaration to the ICJ, the Court is advised to follow the approach taken by the General Assembly on the matter of Myanmar’s representation, as are other parts of the U.N.

The Next Step for the General Assembly

The General Assembly can resolve this issue by passing a resolution explicitly expressing its view, for the benefit of the U.N. system at large, on the matter of who should be permitted to represent Myanmar. As confirmed by Resolution 396(V), the Assembly’s role in relation to questions of government legitimacy does not need to be confined to accrediting delegates (or not) to the Assembly’s own sessions.

Diplomats are busy people, and so it is fortunate that on this matter the script does not need to be written from scratch. Following are some examples of text from previous General Assembly resolutions, in situations where controversy has arisen over the representation of a State.

  • “Demands the … restoration of the legitimate and Constitutional Government of the President of the Republic of Honduras” and “call[s] … on States to recognise no Government other than that of the Constitutional President” (Honduras 2009).
  • “Affirms as unacceptable any entity resulting from [the military coup] and demands the immediate restoration of the legitimate Government” (Haiti 1991).
  • “Reaffirms that the South West People’s Organisation … is the sole and authentic representative of the Namibian people” and “calls upon the international community to refrain from according any recognition … to any regime imposed by [South Africa]” (Namibia 1985).
  • Proclaims that the racist regime of South Africa is illegitimate and has no right to represent the people of South Africa,” and “reaffirms that the national liberation movements … are the authentic representatives of the overwhelming majority of the South African people” (South Africa 1976).
  • “[U]rges all governments to refrain from taking any action which might confer a semblance of legitimacy on the illegal racist minority regime” (Southern Rhodesia 1969).

Looking beyond the Human Rights Council’s current session, upcoming meetings at which the Burmese people deserve to be represented include UNESCAP (May), the International Labour Conference (May-June) and the 50th session of the Human Rights Council (June-July). At these and future meetings, the Burmese people will look to the international community to be supported, not ostracized. The General Assembly needs to show leadership to make this happen.

Image: The International Court of Justice (ICJ), principal judicial organ of the UN, holds public hearings (by video link) on the preliminary objections raised by Myanmar in the case concerning “Application of the Convention on the Prevention and Punishment of the Crime of Genocide” (The Gambia v. Myanmar) at the Peace Palace in The Hague, from 21 to 28 February 2022. Sessions are held under the presidency of Judge Joan E. Donoghue, President of the Court. A wide view of the members of the Court on the opening day, including Ko Ko Hlaing, the representative of Myanmar’s military junta, on the opening day of the hearings. Feb. 21, 2022. UN Photo/Frank van Beek