What’s wrong with this picture? The UN Human Rights Council hears the military Junta as the legitimate government of Myanmar

Introduction to the representation issue

A few weeks ago, on 26 February 2021, Rebecca Barber wrote a piece in EJIL:Talk! asking whether the UN General Assembly could exclude Myanmar by refusing “to recognise the credentials of its ruling military Junta?” Quite correctly she answered with a resounding “YES”. This piece will continue the focus on the representation of Myanmar issue, recounting the episode in the Human Rights Council in early March when the representative of the military regime spoke as the legitimate representative of Myanmar without objection or comment. Suggestions will be made how to avoid repeating that error in future.

The Security Council was the first intergovernmental UN body to react to the state of emergency declaration by the military on 1 February. The President of the UN Security Council (SecCo) issued a press statement three days later, in which members of the SecCo expressed “deep concern” at the “arbitrary detention of members of the Government, including State Counsellor … and President … and others” and called “for their immediate release”. It also emphasized the need for the “continued support of the democratic transition” in the country and “stressed the need to uphold democratic institutions”. (These passages were reiterated or repeated in a Presidential Statement issued on 10 March).

Eight days thereafter, the Human Rights Council (HRC) held a special session on the human rights implications of the crisis in Myanmar and adopted a resolution deploring the removal of the Government elected by the people, suspension of the mandates of parliamentary members and called for the restoration of the elected Government. On the other hand, the HRC called urgently for the immediate and unconditional release of all persons arbitrarily detained, including the State Counsellor and President; it did not refer to them as “former” officeholders.

The military representative speaks unfettered in the Human Rights Council – round 1

During the special session, the HRC heard a representative of the “Concerned Country” speak as the representative of Myanmar, explaining and justifying the emergency decree and the transfer of all State powers to the Commander-in-Chief of the Defence Forces. No objections or comments were made to his having been given the floor as the representative of the legitimate Government.

The civilian representative speaks in the General Assembly

Ms. Barber’s piece of 26 February presumed that it would be the military junta that would attempt to represent Myanmar in meetings of the General Assembly (GA) and whose credentials could and should be challenged in future. But in an unforeseen twist, on the same day an “informal meeting of the plenary”, convened by the President of the GA, was held to hear a briefing by the Secretary-General (SG)’s Special Envoy on Myanmar. In the course of that meeting, the Permanent Representative (PR) of Myanmar to the UN (Mr. Kyaw Moe Tun) repudiated the attempted military coup and said he spoke for the civilian Government represented by a Committee of the democratically-elected Union Parliament (CRPH). He appealed to all not to recognize the military regime and to support the CRPH.

Despite the military regime attempting to fire him, he has steadfastly maintained his position as the rightful PR of Myanmar to the UN. The military attempted to replace him with the Deputy PR at the Mission but he subsequently resigned. As of 24 March, the UN website for the current representation of Myanmar to the UN lists as the current PR Mr. Kyaw Moe Tun and no Deputy PR is listed.

The PR’s credentials as well as that of other representatives of Myanmar to the current 75^th session of the GA, were accepted by the GA’s Credentials Committee in November 2020 and approved by the GA in December. Those credentials have thus far not been the subject of objections from any representative.

The military representative speaks unfettered in the Human Rights Council – round 2

The HRC returned to the issue of Myanmar on the 11^th of March, when it considered the report of the Special Rapporteur concerned on the human rights situation before and after the military coup, Mr. Thomas Andrews. He referred to Myanmar being “controlled by a murderous, illegal regime” and urged States “to deny recognition of the military junta as the legitimate Government. And yet who did the HRC allow to speak next as the “Statement by Country Concerned”? — a spokesperson for the Foreign Ministry speaking on behalf of the military regime. This was not the Statistical Commission or UNCITRAL – this was the primary body of the UN devoted to the promotion and protection of human rights and fundamental freedoms.

The Foreign Ministry official again defended the emergency declaration and the takeover of the civilian Government and asserted that the military had shown “the utmost restraint” in dealing with the violent protests. Almost all speakers lamented and deplored the violence taking place daily against civilians, the overturning of a democratically elected Government, violations of international human rights law, and disregard of norms of good governance and rule of law.

But did any HRC delegates refer specifically to the representation issue or to the fact that someone spoke as the representative of Myanmar on behalf of the military regime as the legitimate Government? None, despite the fact that delegates had heard the Special Rapporteur’s statement and would have been aware of what had been issued by the SecCo and the HRC itself. More importantly they should have been aware that the PR of Myanmar spoke on behalf of the civilian Government, repudiating the military regime, early two weeks earlier in HRC’s parent organ, the GA. Yet the defender of the military coup spoke without objection or comment regarding his purported right to represent the legitimate Government of Myanmar, according to the press statements prepared by the Secretariat. The list of speakers included the US, UK, France, Germany, the Nordics, Netherlands, Belgium, Switzerland, Canada, Australia, Austria, Ireland, New Zealand as well as the EU and others.

What went wrong?

It is inconceivable that these representatives were unaware of the issue; they should have been aware and able to “connect the dots”. Perhaps representatives viewed the matter in political terms in the sense it was better to have the “murderous, illegal regime” at the table to “face the music” and hear the condemnations in real time. But the person who spoke for the military was not a military officer but rather the Permanent Secretary of the Foreign Ministry. Was he a policy maker in the military regime? Was he going to deliver a message back to the generals? Would they change their behaviour because diplomats made unpleasant, “naming and shaming” statements? Hardly. In fact a reporter who asked the SG’s spokesperson about this episode thought the Foreign Ministry official “seemed nervous and mumbling” and wondered if there was concern “that, perhaps, this is a man who is under duress, is in fear of reprisals” and in effect, that the HRC “had shown some sort of hostage video?”.

If it was that sort of policy decision that motivated silence on the part of pro-civilian Government delegates, it was misguided and counterproductive. First, after the precedent of the PR having spoken for the civilian Government of Myanmar in the GA two weeks before, a counter-precedent was established where the presiding officer of the HRC gave the floor to a speaker representing the military junta. Moreover, the representative of the military spoke at formal UN meetings of the HRC, whereas the “dismissed” PR only spoke at an “informal meeting”.

It is never a good idea to have a country represented in one UN body by someone speaking for one purported Government and yet be represented in another UN body and by a person speaking for another purported Government. What was even worse was to have a defender of the military coup regime speak unfettered in the UN’s primary human rights body after it had been condemned by that very body.

What should be done to avoid repeating this episode?

Leaving aside the procedure that would be used if there were objections to the credentials of Myanmar representatives to the GA itself, what should happen in a future meeting of a GA subsidiary such as the HRC if the floor is given to a representative of Myanmar who speaks on behalf of the military coup regime? To avoid what happened in the HRC on 11 March, delegates from Governments which do not accept the military coup have basically two options to consider:

a. Challenge from the floor by raising a point of order questioning on what basis the floor has been given to someone purporting to speak for the legitimate Government of Myanmar but in fact representing the military regime. This could well lead to confusion in the room and at the podium, depending on how much preparation and “groundwork” has occurred, particularly by the officers (Bureau) of the body concerned (see below). Sometimes “controlled” chaos and confusion has a desired effect — halting the proceedings to illustrate that the situation is not “normal” and not “business as usual”. If nonetheless an attempt is made to give the floor to the military regime speaker, the challenge could lead to a ruling of the Chair which could then be subject to an appeal by which such a ruling would be over-ruled. In theory, the subsidiary body might itself decide that it would not hear the speaker from the military regime, subject to any controlling guidance or practice from the GA.

b. Reserve their position on the representation issue by including a “disclaimer” when making a statement, along the following lines: “The fact that my Government has not objected to a spokesperson from the military regime which has illegally purported to depose the democratically-elected Government of Myanmar should in no way be taken as a recognition of the legality of that attempted coup or that that spokesperson in fact represents the legitimate Government of Myanmar. We reserve our right to return to this issue at any time and in any appropriate forum”.   Statements like this need to be reflected in the written records of the meeting and in the report of the body concerned. In this way, the issue would be flagged, the regime not been given a “free pass” and a precedent not been set.

Beyond the above, dealing with credentials issues in subsidiary organs is somewhat more complicated than in the GA plenary since its Credentials Committee does not examine the credentials of such bodies. The GA rules of procedure provide that its rules concerning the procedure of committees apply to subsidiaries (rule 161). But such rules do not relate to credentials or objections thereto. There are no rules governing the representation of States on GA subsidiary bodies as such. In practice, names of representatives are submitted by Foreign Ministries or Permanent Missions and are dealt with on a practical basis. If accreditation issues arise, the Bureau of a subsidiary body would normally address the matter. In fact, under rule 17 of the ECOSOC Rules of Procedure, it is the Bureau of ECOSOC which examines the credentials of “accredited representatives” and reports thereon to ECOSOC.

The HRC as a GA subsidiary was advised to follow this practice in 2009 regarding a purported representative of Honduras who attempted to participate in the HRC as an observer. The next time the representation of Myanmar arises before the HRC or any other GA subsidiary body, the Bureau of that body should first meet to consider the matter and report to the body itself should that be necessary or desirable. 

Importance of the “attitude” of the UN General Assembly

It is a logical “rule of thumb” that a subsidiary organ should look for guidance to the relevant practice and decisions of its parent organ regarding representation issues. Even more so In the case of “rival claimants”. Such questions have arisen in the GA since 1950. Any subsidiary should follow the terms of GA resolution 396 (V) of 14 December 1950 which addressed the question when more than one authority claims to be the Government entitled to represent a Member State. The GA noted that in such cases there was a risk that conflicting decisions might be reached by its various organs and that it was in the interest of the proper functioning of the Organization that there should be uniformity in the procedure applicable. The GA recommended that when any such question arises, it should be considered by the GA, noting it was the GA “that, in its composition …is the organ … in which consideration can best be given to the views of all Member States in matters affecting the functioning of the Organization as a whole”. Further, it recommended that the attitude adopted by the GA concerning any such question “should be taken into account in other organs” of the UN.

It would thus be helpful if the GA clearly makes known its “attitude” on the matter of Myanmar representation. Clear, specific language in a GA resolution (Honduras) or decision (Madagascar) would of course be the most direct and incontrovertible. Otherwise, the President of the GA could call on the current PR as the representative of Myanmar in formal meetings or make a ruling on the matter if there is a challenge. The PR of Myanmar should circulate documents of the UN in that capacity. So far, the continued active and unchallenged participation of the current Myanmar PR in GA meetings assists in building the case that the GA does not consider the military junta of Myanmar to be the legitimate Government of the country and should not be given that status in any other organ of the Organization.

What’s next?

The Economic Commission for Asia and the Pacific (ESCAP), an ECOSOC subsidiary body, is scheduled to hold its 77^th session in Bangkok from 26 to 29 April 2021. Myanmar is a full member. According to the Terms of Reference and Rules of Procedure of ESCAP, each member is represented by an accredited representative. The credentials of each representative are to be reviewed by the Chair and two Vice-Chairs, who shall examine the credentials and report thereon. (rule 12) A number of Governments supporting the civilian Government are also full members of ESCAP. Its deliberations need to be informed by what has happened in the GA regarding Myanmar representation and by the text of GA resolution 396 (V).

Many questions remain but what is most important is that care is taken that there is no repeat of what happened at the HRC concerning the representation of Myanmar.