Status Quo of Myanmar
On the first day of February 2021, Myanmar’s military leaders arrested political leaders of the national and state government. Furthermore, they announced a one-year “state of emergency”. The year-long state of emergency will be followed by new elections according to the military announcement. In addition to the stampede of arrests, the military also detained civil society activists in other parts of Myanmar and cut telecommunications and the internet. All these, in unison, can be described as sufficient ingredients of a military coup, the death of democracy, and gross violation of international legal standards.
In an attempt to cloak their actions as ‘legitimate’ the military invoked an article of the military-drafted 2008 Constitution that enables them to declare a “state of emergency” and grab control of all three branches of democratic governments i.e. legislative, executive, and judicial. Furthering their attempts and hoping to provide a democratic twist to the status quo, Vice-President Myint Swe, a member of the military-backed opposition party replaced President Win Myint. Now, acting as President, Myint Swe authorized the declaration of the state of emergency thereby transferring power to the commander-in-chief, Sr. Gen. Min Aung Hlaing.
Several members of the military-installed government announced on 1 February 2021, are also implicated in serious human rights abuses. Lt. Gen. Tun Tun Naung, the junta’s appointee for Border Affairs, oversaw war crimes and serious abuses against civilians as the commander in Kachin State in 2013. Lt. Gen. Soe Htut, Minister of Home Affairs was previously on the European Union sanctions list for human rights abuses related to his role leading the military’s southern command. Gen. Mya Tun Oo, the new defense minister, has held the military’s third-ranking role as the Chief of General Staff since August 2016, including during the 2017 ethnic cleansing campaign against the Rohingya.
Recognition by the United Nations
While the United Nations espouses to achieve lofty ambitions of democratic and fair elections, a genocidal military junta has snatched authority from a democratically elected government without facing any significant legal or political international consequences. At this junction, one must re-visit the United Nations Charter, under Article 1(1), and observe the need “to maintain international peace and security, and to that end: take effective collective measures for the prevention and removal of threats to peace.” It is, therefore, necessary for affirmative action to be adopted.
One significant international legal action that is open to the United Nations as a response to the military coup can be exercised. Interestingly, this Machiavellian exercise circumvents the requirement of an agreement of the Security Council’s permanent members. As per the procedural rules of the United Nations, it is within the power of the General Assembly to deny Myanmar’s military regime the right to represent Myanmar at the General Assembly for its 76th Session. State participation in the General Assembly has a twin purpose/objective. First is membership, and second is representation. Membership of the United Nations is governed by Articles 4 to 6 of the UN Charter. Membership is approved by the General Assembly, upon the recommendation of the Security Council. However, a State that has ‘persistently violated’ the principles of the UN Charter can be expelled. Representation refers to the presence in the General Assembly of a delegation representing the Member State and is addressed in Rules 27-29 of the General Assembly’s Rules of Procedure. It is the question of representation that is at issue in a credentials challenge.
United Nations General Assembly’s Credentials Committee verifies the requirements described in Rule 27. After being satisfied, the Assembly may reject the recommended credentials. In 1950, lack of guidance prompted the Assembly to adopt Resolution 396(V) which elaborated that, if one or more competing authorities claim at once to represent a Member State, the question is to be decided in light of the Purposes and Principles of the Charter and the circumstances of each case.
Cases of Haiti and Sierra Leone
The cases of Haiti (1991) and Sierra Leone (1997) offer concrete examples of the Assembly’s recognition practice. In both circumstances, the ‘credentials’ and right of representation were granted to the democratically-elected governments and not the incumbent military junta.
In September 1991, the Haitian military ousted the Haitian Government in a coup led by General Raoul Cedras. Despite effective control being exercised by the military government, the Credentials Committee did not accept the credentials issued by that government. Later, in July 1994, observing the deterioration of the humanitarian situation in Haiti and condemning the military regime’s refusal to cooperate with the United Nations, the Security Council enacted, under Chapter VII of the UN Charter, Resolution 940. The Resolution mandated the creation of a multinational force under unified command and control and, in this framework, “to use all necessary means to facilitate the departure from Haiti of the military leadership […] the prompt return of the legitimately elected President and the restoration of the legitimate authorities of the Government of Haiti”.
Furthermore, in the case of Sierra Leone, in 1996 the military ousted President Kabbah from power less than a year after the elections, it was not so much a revolutionary takeover as a step back to the type of military dictatorship that had previously ruled Sierra Leone. Nevertheless, the people of Sierra Leone rejected the coup, responding with civil disobedience and demanding the restoration of the democratically elected government. The Credentials Committee recognized the credentials issued by the Kabbah government.
Credentials Committee – Recognition and Admission
According to the 1970 Opinion of the UN Legal Counsel, there must only exist one exception. That is when rival claimants exist and there a question on the righteous claimant who represents the “true Government.” In this regard, the Opinion stated, it was permissible to consider the question within the context of credentials verification or as a separate agenda item in the General Assembly. But Counsel did not address whether one approach was more or less preferred. A simple majority vote would be required to affirm the Credential Committee’s recommendation. To summarize, the Credentials Committee has been willing to approve the credentials of democratically elected governments and groups in restored democracies even in circumstances where they did not have effective control over the territory of the country concerned. The overwhelming majority of credentials issued by the Member States are indeed accepted by the Committee and the General Assembly without question, but where a situation arises from internal or external repression – the Credentials Committee may consider other factors such as the legitimacy of the entity issuing the credentials, how it achieved and retains power, and its human rights record.
Recognition of a Government, is an important characteristic, in addition to recognition, admission to the United Nations is crucial. One must remember that the United Nations is the sole multilateral world institution with an authentic and respected mechanism that can grant membership to nations to a global forum. All things considered, an administration’s approved delegation at the United Nations offers an exceptional stage that can convince other states to recognize the State’s administration and its legitimacy. It would be both, “a symbolic and highly substantive step towards the restoration of democracy […] to be recognized by the United Nations as the exclusive sovereign power in the country”.
As per a 2008 legal opinion, it was within the General Assembly’s powers to reject the credentials of undemocratic regimes which had never ‘in themselves operate[d] to change the internal political situation.’ Thus, unless and until Myanmar’s democratic government is re-instated, the right of representation submitted by Myanmar in September will presumably be of a military junta. If that happens to be the case, the General Assembly can repeat its actions by rejecting the military’s representation and thereby accepting Myanmar’s righteous democratic government .
A rejection of the credentials of Myanmar’s military junta would be, in some sense, an attempt to carry out an international legal coup de grâce. That is because such a measure will send a direct and penetrating message challenging the legitimacy of the junta. Additionally, this will highlight to other tyrants who are instigating undemocratic seizures of power in other parts of the world that their efforts might be in vain. If the General Assembly fails to recognize Myanmar’s diplomatic relations with other States, as well as for Myanmar’s military junta, it will have a long-standing impact on the country’s legitimacy, other international and regional organizations respect. Thus, in short, acting as a knock-out blow to the illegal seizure of powers by military juntas.
In conclusion, Myanmar’s Military overdrive has opposed international legal and diplomatic standards. As a response, a rejection of the junta will curb other supporters of undemocratic seizures of power. In other words, if Myanmar’s military junta puts forward its representatives for the 76th session of the UN General Assembly in September, the Assembly will be prescribed to condemn an undemocratic seizure of power. In the interim, efforts to enable international justice will gain deeper traction. The extent of engagement will depend on the appreciation by the Myanmar junta vis-à-vis legal proceedings and the legal advice. This is a legal milieu that must require an international movement and nations’ responsibility to protect- perhaps through an international legal and diplomatic coup de grâce.
Ankit Malhotra is reading Law at Jindal Global Law School in India. He has a Bachelor of Arts Degree in International Relations from the Jindal School of International Affairs and is the Co-Founder and President of the Jindal Society of International Law.