The General Assembly should provide guidance to the UN system on the question of who gets to represent Myanmar

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The lack of a coordinated, principled response to the issue of who gets to represent Myanmar at regional and international forums is becoming an indictment of the UN system. 

As previously discussed in this forum (here and here), the issue of Myanmar’s representation first came to a head shortly after Myanmar’s military coup in February.  In the context of the 75th session of the UN General Assembly, Myanmar’s civilian government-appointed permanent representative to the UN was fired by the military junta, and replaced with his deputy.  He refused to step down, asserting that he remained Myanmar’s legitimate representative.  His deputy – the junta’s preferred candidate – then took it upon himself to resign, so the issue of Myanmar’s representation at the General Assembly was settled, for the time being.

Then in March, in two sessions of the Human Rights Council – a subsidiary body of the UN General Assembly – Myanmar was represented by the military junta, seemingly without any questions asked.  The scandal of Myanmar being represented at a subsidiary body of the UN General Assembly by a representative of the junta, while simultaneously represented at the General Assembly itself by a representative of the deposed civilian government, is discussed in an excellent post on this forum by former UN Assistant Secretary General for Legal Affairs Larry Johnson. 

In April, at the Leaders Meeting of the Association of South East Asian Nations (ASEAN), Myanmar was again represented by the junta, this time by military chief himself Min Aung Hlaing.  The question of the junta’s right to represent the people of Myanmar seemingly wasn’t raised by any of ASEAN’s members, although it was raised by Myanmar’s National Unity Government, who wrote to Interpol asking that Min Aung Hlaing be arrested on his way to Jakarta.  

Later in April, at the 77th session of the UN Economic and Social Commission for Asia and the Pacific – a subsidiary body of the UN Economic and Social Council – Myanmar was again represented by the junta.  Again, seemingly, and astoundingly, no questions were asked.    

In May, finally, a UN body took a stand and opted not to let a representative of the junta take Myanmar’s seat at the table.  Ahead of the 74th World Health Assembly, Myanmar’s ousted civilian authorities and the military junta both requested the right to represent Myanmar.  The World Health Assembly is the decision-making body of the World Health Organisation (WHO), which is a specialised UN agency.  The WHO decided not to allow either the junta or Myanmar’s civilian authorities to represent Myanmar, ‘pending Guidance from the United Nations General Assembly’ on how the UN system as a whole should view the matter. You couldn’t get a much more explicit appeal to the General Assembly for urgent assistance in determining who should be recognised as Myanmar’s legitimate government. 

What is now clear is that the question of who gets to represent Myanmar in international forums is not a question that should be put on hold until the General Assembly’s Credentials Committee meets later this year to assess the credentials of representatives submitted by member states, at the commencement of the General Assembly’s 76th annual session.     

As recognised in the previous posts on this forum by myself and Larry Johnson, this is not the first time in history that the General Assembly has had to deal with the issue of competing authorities claiming to represent their countries before the UN.  To provide guidance on such matters, in 1950 the Assembly passed Resolution 395 (V), titled ‘Recognition by the United Nations of the Representation of a Member State’.  It acknowledged that ‘difficulties may arise regarding the representation of a member state in the United Nations’, and that ‘there is a risk that conflicting decisions may be reached by its various organs’.  To avoid the scenario in which various organs of the UN make such conflicting decisions – as indeed is happening now on Myanmar – the General Assembly recognised that ‘it is in the interests of the proper functioning of the Organisation that there should be uniformity in the procedure applicable whenever more than one authority claims to be the government entitled to represent a Member State’.  It recommended that ‘whenever any such question arises, it should be considered by the General Assembly’, and that such question should be decided ‘in light of the Purposes and the Principles of the Charter and the circumstances of each case’.  The General Assembly recommended further that the ‘attitude adopted by the General Assembly’ on such matters ‘should be taken into account in other organs of the United Nations and in the specialised agencies’.

The General Assembly has previously adopted resolutions on the matter of which government may serve as the legitimate representative of a state, without such resolutions being tied to the question of whether to accept the credentials of a member state’s representatives, ahead of the commencement of a General Assembly annual session.    

Following the military coup in Honduras in 2009, the General Assembly adopted a resolution condemning the coup and ‘decid[ing] to call firmly and unequivocally upon States to recognise no government other than that of the Constitutional President’.  That was in June, six months prior to the meeting of the General Assembly’s credentials committee that same year.  In the 1970s, in relation to apartheid South Africa, the General Assembly passed a resolution proclaiming that South Africa’s ‘racist regime’ was illegitimate and had no right to represent the South African people, and affirming that the national liberation movements were ‘the authentic representatives of the overwhelming majority of the South African people’.  Also in the 1970s, the Assembly passed a resolution ‘decid[ing] to recognise the representatives of [the Government of the People’s Republic of China] as the only legitimate representatives of China to the United Nations’, in preference to the representatives of Chiang Kai-shek (the Chinese Nationalist Government in exile in Taiwan).  Going back even further, in 1948 in the context of Chinese aggression in Korea, the General Assembly passed a resolution declar[ing] that there was already a ‘lawful government’ in Korea, and that this was the ‘only such Government’.

Of course, these situations are not all analogous to the situation facing Myanmar right now.  They do, however, serve to illustrate the point that the General Assembly can pass resolutions with determinative effect, and that it has done so on questions of government legitimacy. 

General Assembly resolutions do not have binding legal effect.  But the International Court of Justice (ICJ) has recognised – in its 1971 Namibia Advisory Opinion – that ‘in special cases within the framework of its competence’, the General Assembly can pass ‘resolutions which make determinations or have operative design.’  The Court said in that case that such resolutions were ‘not a finding of facts, but the formulation of a legal situation’.  Some scholars (see here and here, for example) refer to General Assembly resolutions of this nature as ‘quasi-judicial’.  Such determinations are not irrefutable, however they may attest to the existence of international consensus – or, more likely in relation to Myanmar, to the majority view – regarding the characterisation of a situation, and that characterisation can have legal or operational consequences.

Right now, the General Assembly has before it a draft resolution on Myanmar, drafted by Liechtenstein.  The resolution was set to be considered on 18 May, however was temporarily shelved, reportedly to give the resolution’s sponsors the opportunity to rally more support – particularly from ASEAN states.  The extended negotiations on the resolution provide an opportunity for the General Assembly to respond to the appeal from WHO, for it to provide guidance regarding which authorities should be entitled to represent Myanmar in UN bodies.  The General Assembly’s deadline should be the next regular session of the Human Rights Council, scheduled to commence on 21 June.

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Kriangsak Kittichaisaree says

June 7, 2021

One clarification re the 24 April 2021 ASEAN Leaders' Meeting.

When Senior General Min Aung Hlaing went to Jakarta, Indonesia, to attend the Meeting, the Indonesian hosts described him only as Myanmar’s Armed Forces Commander-in-Chief and not the head of a legitimate government. The Malaysian Ministry of Foreign Affairs’ press release prior to this Meeting states: ‘The ASEAN Leaders’ Meeting will be attended by ASEAN Leaders, as well as ASEAN Secretary General, and Senior General Min Aung Hlaing of Myanmar [during which t]he unfolding development in Myanmar is also high on the meeting’s agenda’. The Chairman’s Statement on the ASEAN Leaders’ Meeting issued after the Meeting did not specifically identify who these ‘ASEAN Leaders’ were, merely stating in the opening paragraph that ‘The ASEAN Leaders’ Meeting was convened on 24 April 2021 at the ASEAN Secretariat in Jakarta, Republic of Indonesia, and chaired by His Majesty [the Sultan of Brunei Darussalam]. ..’ This was a departure from the standard formula adopted in the Statements of the ASEAN Chair stating: ‘We, the Heads of State/Government of ASEAN Member States, gathered for the … ASEAN Summit on ….’Also of importance is the fact that the open letter dated 23 April 2021 sent to the Meeting by NUG’s Spokesperson was read out by the ASEAN Secretary General, with copies thereof distributed, at the Meeting. It may, therefore, be argued that the Senior General has not been recognized by the other ASEAN Member States as Myanmar’s Head of State/Government, either de jure or de facto. He was, at best, the head of a special mission from Myanmar attending the Summit to hear the concerns as well as demands expressed by the Leaders from nine ASEAN Member States and, on the sidelines of the summit, the UN Secretary-General’s Special Envoy on Myanmar.