Could the General Assembly Exclude Myanmar from the UN by Refusing to Recognise the Credentials of its Ruling Military Junta?

Earlier this month, Myanmar’s military seized power from the democratically elected government in a dramatic coup d’état.  State Counsellor Aung San Suy Kyi was arrested alongside other government ministers, parliamentarians and activists.  The military’s Commander-in-Chief, who a UN Fact-Finding mission said in 2018 should be prosecuted for crimes under international law, is running the country.    

The UN Security Council has expressed concern, but is unlikely to do more due to the near-certainty of the Chinese and Russian vetos.  It is difficult to think of a more damning indictment of the UN’s ability to fulfil its purposes, including in particular the promotion and protection of human rights, than a genocidal military seizing power from a democratically elected government without significant international consequence. 

There is however one significant international consequence that is open to the UN as a response to the military coup, that does not require the agreement of the Security Council’s five permanent members. Pursuant to its procedural rules, the General Assembly is competent to deny Myanmar’s military junta the right to represent Myanmar at the General Assembly.   

Article 6 of the UN Charter empowers the General Assembly to expel a member state from the UN if it has ‘persistently violated’ the principles contained in the Charter, however it may only do so following a recommendation by the Security Council.  There is obviously no prospect of the Security Council recommending Myanmar’s expulsion from the UN. 

While the General Assembly’s competence to expel member states is contingent upon a recommendation from the Security Council, however, the Assembly may autonomously approve or reject the credentials of the representatives that are put forward annually by states.

The process of issuing credentials is described in the General Assembly’s Rules of Procedure.  Rule 27 states that the credentials of representatives and the names of members of a delegation ‘shall be submitted to the Secretary-General if possible not less than one week before the opening of the session’, and that they ‘shall be issued either by the Head of State or Government or by the Minister for Foreign Affairs’. The Assembly’s Credentials Committee verifies that the requirements described in Rule 27 have been satisfied, and on that basis makes a recommendation to the Assembly. The Assembly may then approve or reject the recommended credentials, or defer its decision. Other than the technical requirements specified in Rule 27, the procedural rules do not articulate any criteria to guide the Assembly’s credentials decisions. In 1950 this lack of guidance prompted the Assembly to adopt Resolution 396(V), which said that in the event that 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’.

There are different views regarding whether the General Assembly may use the credentials process to protest against an allegedly illegitimate regime. On one view, because rejecting the credentials of a member state’s representatives has essentially the same effect as suspending that state from the UN, which pursuant to the UN Charter requires a Security Council recommendation, such a rejection for any reason other than that the credentials do not satisfy the requirements outlined in the Assembly’s procedural rules would be contrary to the UN Charter.  This was the view expressed in a 1970 memorandum from the UN Legal Counsel, which described the credentials process as a ‘procedural matter limited to ascertaining that the requirements of Rule 27 have been satisfied’.   

Conversely, some scholars (see here and here, for example) assert that rejecting the credentials of a state’s representative is not the same – at least in legal terms – as suspending a state from the UN, and that the General Assembly’s authority with regards to the credentials process encompasses an authority to make a substantive inquiry into the ‘representativeness’ of the proposed delegate(s).  Such substantive enquiry, it is asserted, should be made ‘in light of the purposes and principles of the Charter’ – as per Resolution 396(V) – regardless of whether there are competing authorities claiming to represent the state, or only one. 

This view is supported to a limited degree by the Assembly’s practice, including most notably its rejection of the credentials of South Africa’s representatives during the apartheid era.  Following a challenge to what was effectively a decision by the General Assembly to suspend South Africa from the UN, the General Assembly President ruled that although the rejection did not alter South Africa’s status as a UN member state, it had the effect of precluding South Africa from participating in the work of the UN. 

More pertinently to the current situation in Myanmar, on a number of occasions when democratically elected governments have been toppled in military coups or otherwise undemocratically deposed, the General Assembly has subsequently refused to accept the credentials of the newly incumbent military regime.  Following military coups in Haiti (1991) and Sierra Leone (1997), for example, the Assembly recognised the credentials of the deposed democratically-elected governments (see here for Haiti and here for Sierra Leone), in preference to the new military regimes.  On other occasions the Assembly’s Credentials Committee has deferred its decision on credentials, with the effect either that the incumbent delegation continues to provisionally occupy the member state’s seat, or that the seat remains temporarily unoccupied. This stalling tactic allowed the representatives of Afghanistan’s Rabbani government to continue to represent Afghanistan in the General Assembly in 1996-1999 despite the Taliban’s effective control; and allowed Cambodia’s seat to remain unoccupied in 1997-1998 following Hun Sen’s coup. 

The possibility of the General Assembly rejecting the credentials of Myanmar’s military junta was raised during the military’s previous reign, prior to the assumption of power by the National League for Democracy following the 2015 general election.  In 2008, candidates elected to parliament in the 1990 democratic election wrote to the UN Secretary-General, requesting that their representatives be appointed to ‘represent the people of Burma and the legitimate, democratically elected members of parliament’, in place of the military junta.  A legal opinion offered at that time by nine eminent legal scholars said that although credentials are typically accepted without question, ‘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’.  In relation to Myanmar, it concluded that it would be ‘open to the Credentials Committee to recommend to the General Assembly that the credentials issued by the [military junta] should be rejected’, on the basis of – among other things – its 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’.

In 2008 the request of the elected candidates that their representatives be appointed to represent the people of Myanmar was unsuccessful, and the Assembly accepted the credentials of the delegates put forward by the military junta.

The General Assembly’s next annual session commences in September.  Prior to that time, member states will submit the credentials of their representatives to the Secretary General.  The submitted credentials will then be considered by the Assembly’s Credentials Committee, which will then report its recommendations to the Assembly – usually in December. 

Unless Myanmar’s democratic government is re-instated, the credentials submitted by Myanmar in September will presumably be those of the military junta.  If that occurs, the General Assembly will have three options. It could accept the credentials put forward by the military junta, as the ruling regime; it could follow the precedent established following the seizures of power in Afghanistan and Cambodia and defer its decision; or – if Myanmar’s deposed government were to put forward its own representatives, as was attempted in 2008 – it could follow the precedent established following the coups in Haiti and Sierra Leone and accept the credentials of the representatives of the democratically elected government.

In the 2008 legal opinion referred to above, it was observed that decisions by the General Assembly to reject the credentials of undemocratic regimes had never ‘in themselves operate[d] to change the internal political situation’. Nevertheless, a rejection of the credentials of Myanmar’s military junta would be a powerful statement regarding the international illegitimacy of the regime. It would also likely have significant ramifications for Myanmar’s economic, diplomatic and trade relations with other states, as well as for Myanmar’s standing in other international and regional organisations.  

Most important, though, is the message that such a rejection would send to would-be instigators of undemocratic seizures of power in other parts of the world.  Recent developments in Myanmar highlight the extent to which the military’s behaviour has been emboldened by the lack of any real international consequence following decades of brazen human rights violations.  If Myanmar’s military junta puts forward its representatives for the 76th session of the General Assembly in September, the choice facing the Assembly will be whether to endorse undemocratic seizures of power, or to send a message to those eyeing power in fragile democracies around the world that such actions come at the cost of the state’s right to participate in the UN.