During last month’s high level session of the 77th United Nations General Assembly (UNGA), nearly 700 global civil society organizations sent a scathing letter to United Nations Secretary General Antonio Guterres demanding that the U.N. and its organs stop legitimizing the military junta that seized power in Myanmar in a February 2021 coup. This letter was the latest salvo in the long-running battle over the conflict-ridden country’s representation in the U.N. system. Since the coup that deposed Myanmar’s democratically elected government, the U.N. has attempted — with predictably poor results — to navigate the diplomatic minefield of Myanmar’s representation. This failure is largely due to the corrupt bargain that U.N. leaders and Member States, many of which cast themselves as the guardians of human rights and the rules-based order, have cut, dishonoring the principles they publicly support.
Shortly after the coup, Ambassador Kyaw Moe Tun, Myanmar’s sitting permanent representative (PR) to the UNGA in New York, pledged his loyalty to the democratic forces, now organized under the rubric of the National Unity Government (NUG). While he continues to formally occupy Myanmar’s seat in New York since the fall of 2021, Kyaw Moe Tun has been denied the normal rights and responsibilities of that position through the informal collusion of certain powerful countries on the U.N.’s credentials committee.
It is no mystery why Russia and China, themselves authoritarian countries and allies of the military junta, prefer to hold Kyaw Moe Tun in check and muddy the waters around Myanmar’s representation. Both continue to provide the junta with political and economic lifelines, including through weapons sales, and have shamelessly blocked Security Council action on Myanmar for decades. What is more puzzling, however, is why democratic countries such as the United States and U.N. leaders such as Secretary General Guterres have gone along with this travesty. As the credentials committee adjudicates this matter for the UNGA’s 77th session, the democratic Member States that sit on the committee and in the UNGA must do better and give the Burmese people the voice and representation they deserve.
The Credentials Committee’s Corrupt Bargain
The U.N.’s credentials committee comprises nine members: China, Russia, and the United States have historically served as permanent members, with the balance of seats appointed on a regional basis by the UNGA President. The committee receives requests for credentials when the UNGA opens a new session each September, but does not usually issue its report to the Assembly until December, often leaving representation questions in limbo during the “high-level” period when attention turns to the statements of world leaders. In 2021, the committee punted on Myanmar’s representation, deferring its decision pursuant to a “gentlemen’s agreement” between the United States and China that allowed Kyaw Moe Tun to remain the acting PR, but limited his rights to speak in the UNGA and otherwise proscribed him from fully carrying out the duties and enjoying the privileges of the post.
The history of adjudicated credentials cases provides little clarity on what the U.N. should do in the particular matter of Myanmar’s coup. Few governments have formally recognized the junta. Even its notoriously dictator-friendly regional membership organization — the Association of Southeast Asian Nations (ASEAN) — has refused to allow the junta’s “political representatives” to attend meetings since February 2021. Further, armed and civil disobedience groups aligned with the NUG are carrying out an increasingly successful resistance to the coup, which has rendered a majority of the country either ungovernable or under opposition control. The NUG has also strenuously objected to the U.N.’s ongoing practice of limiting Kyaw Moe Tun’s rights to represent Myanmar, both in the General Assembly and beyond. They have also decried the decisions of U.N. agencies to provide soft recognition of the junta by cooperating exclusively with it on humanitarian and other international assistance efforts.
The U.N.’s Office of Legal Affairs noted in its seminal 1950 memorandum that “obligations of membership can be carried out only by governments which in fact possess the power to do so.” Determining which contestant to representation meets that standard requires “an inquiry as to whether the [new] government exercises effective authority within the territory of the State and is habitually obeyed by the bulk of the population.” These are questions of fact. The U.N. has not made any formal effort to resolve them through an inquiry, and there are no signs that it plans to do so. In such circumstances, the U.N.’s past practice has defaulted to whoever is physically present in the General Assembly seat, which in this case means continuing to recognize Ambassador Kyaw Moe Tun. The twist in this case is the corrupt deal that has permitted him to remain in that seat, while functionally silencing him as a representative of the Burmese people. Likewise, on the ground in Myanmar, the U.N. has largely maintained its pre-coup presence and has continued to do business with the illegal military junta and its designees.
Denying the Burmese People a Voice
There is no rules-based precedent for what China, Russia, and the United States have done to deprive Myanmar’s representative of his voice. Moreover, this lawless behavior has serious consequences for future disputes over representation. In the near term, it has stunted the ability of the entire U.N. system to properly function. Since February 2021, Kyaw Moe Tun has been silenced in the UNGA and blocked from representing Myanmar in, among other forums, the U.N. Human Rights Council, the World Health Assembly, and the International Labour Conference — all of which have been deliberating critical matters related to Myanmar and the ongoing crisis. Instead, Myanmar’s seat has sat empty during deliberations concerning its people for nearly two years.
Even more egregious was the unjustified and legally dubious decision of the International Court of Justice (ICJ) to allow the junta to continue to represent Myanmar in the genocide case before it. The Court decided to accept the junta’s representatives even as the NUG petitioned to recognize the ICJ’s jurisdiction and sought to work cooperatively with it,while the junta’s legal team persisted in rejecting its jurisdiction. Likewise, the U.N.’s business-as-usual approach to negotiating in-country humanitarian and programmatic access with the junta has allowed humanitarian aid to be instrumentalized by a gang of bloodthirsty thugs who care nothing for the well-being of the Burmese people. Such cooperation with their tormentors has further sullied the U.N.’s already poor image among the people of Myanmar.
In denying Kyaw Moe Tun the ability to represent Myanmar in various U.N. bodies and openly cooperating with the junta on the ground, the U.N. system has gone far beyond the scope of its original credentials bargain. The UNHRC, ILC, WHA, and other institutions have violated their own rules on credentialling. Each of these bodies has a credentialling policy and practice of following the “will of the General Assembly” and therefore should have accepted Kyaw Moe Tun as eligible by right to represent Myanmar in their proceedings. As Myanmar’s duly recognized permanent representative to the UNGA — the system’s highest and most authoritative body — he is the highest-ranking accredited Myanmar diplomat in the U.N. system. From a protocol perspective, something the U.N. normally takes very seriously, he should be accorded the privilege of speaking in all these forums. Ordinarily, a UNGA PR is entitled to sit behind their country’s placard anywhere in the system, no questions asked. When I served as a deputy U.S. ambassador to the U.N. in New York, I was regularly flown in to represent the United States in U.N. proceedings where our missions were understaffed or required a fully credentialled ambassador. This is a common and well-accepted practice across the U.N., and it should be no different for Kyaw Moe Tun.
Challenging the Flawed Credentials Decision
The back-door de-recognition of Kyaw Moe Tun carries worrying ramifications for the broader democratic world. Other PRs should speak out to challenge flawed credentials decisions across the board and demand open votes by Member State bodies rather than allowing secret negotiations in backrooms to effectively deny representation to 55 million Burmese people.
Further, on the issue of humanitarian and other assistance, U.N. agencies must immediately stop negotiating access with and working through junta-controlled bodies if they hope to maintain credibility in the eyes of the Burmese people. As the largest donors to these agencies, the United States and its allies need to use their voices and votes to force these agencies to revert to the parallel systems they had supported prior to 2012. These States must also work with the NUG, ethnic leadership, and affiliated civil society to expand cross-border and other forms of assistance free from the military junta’s control. The integrity and independence of U.N. assistance are more important the ability to maintain their expensive Yangon offices.
It is vital that the United States and other democratic countries use the ongoing credentials deliberations to object to the continuation of these unjust arrangements. Nearly two years into this coup, there should no longer be any question about the illegitimacy and incapacity of the junta that claims to rule Myanmar. The U.N. has spent the past two years enabling the junta and has manifestly failed to adapt to the ground reality in the country. Democratic countries that claim to oppose the coup did not merely allow this corrosive state of affairs to emerge; they actively negotiated it and provided the funds that enabled it. It is time that actions match words. Member States that believe in human rights and democracy must take the necessary steps to give back to the Burmese people — from whom so much has been taken — their voice.