The United Nations General Assembly is due to consider an issue in the coming weeks that will profoundly affect the lives of 55 million people in Myanmar.
Its Credentials Committee will debate whether to accept the credentials of the junta which seized power on 1 February, or those of the National Unity Government (NUG), made up of elected representatives whose parties won a landslide victory in elections last November.
We, the undersigned legal scholars, recommend that the junta’s credentials be rejected.
The junta has inflicted on its own people what the UN Special Rapporteur on the situation of human rights in Myanmar has called “a brute force reign of terror,” likely amounting to crimes against humanity.
Over one thousand people have been killed and over six thousand have been arbitrarily detained, including elected parliamentarians, with many tortured to death in detention.
Armed conflict has intensified, displacing 230,000 people. The country is now experiencing a major humanitarian crisis, exacerbated by the Covid pandemic.
Accepting the military junta’s credentials would entrench the regime further, giving a green light for continued repression and potentially undermining international and regional mediation efforts.
Conversely, accepting the NUG’s credentials would send a powerful signal that the United Nations stands firmly in support of democracy and human rights, and efforts to resolve Myanmar’s crisis through peaceful dialogue.
It would also be consistent with the resolution adopted overwhelmingly by the General Assembly in June, condemning the coup and calling on the Myanmar military to “respect the people’s will.”
There is a sound legal case for the General Assembly to take this course of action, based on historical precedents.
In the UNGA, respect for international human rights standards and the extent to which states represent the will of the people have also been important considerations.
In the case of Haiti, despite the military junta wielding effective control, in 1991, 1992 and 1993 the General Assembly accepted without objection the credentials submitted by the representative of the ousted government of Jean-Bertrand Aristide.
In 1997 the credentials of the government of deposed Sierra Leonean President, Ahmed Tejan Kabbah, were accepted without objection.
Similarly in 2009 following the coup in Honduras, the General Assembly accepted the credentials of the constitutional government and left its ambassador in his seat.
In the case of Libya, the Assembly accepted the credentials of the opposition National Transitional Council in 2011, even though it was not in effective control.
We believe there are compelling legal arguments to accept the credentials of the NUG.
It is appointed by members of parliament decisively elected in elections last November. The NUG’s founding document, the Federal Democracy Charter, lays out a roadmap for a democratic government and commits the NUG to diversity and the inclusion of all ethnic nationality groups.
The NUG is working closely with civil society groups, the Civil Disobedience Movement and representatives of ethnic nationality areas. It has announced the formation of the People’s Defence Force to defend the population against military violence and as a “prelude to establishing a Federal Union Army.”
Accepting the NUG’s credentials gives the UNGA an historic opportunity to act decisively in support of the founding principles of the United Nations.
Moreover, a vote for the NUG would send a powerful signal to the people of Myanmar that UN member states have not forgotten their plight and stand with them.
Research Fellow, Asia Pacific Centre for the Responsibility to Protect, School of Political Science and International Studies, University of Queensland
Lawyer at the Paris Bar, Founding President of Sherpa, President of
PPLAF (Platform to Protect Whistle Blowers in Africa)
Emeritus Professor of Law, Universities of Leiden and the Witwatersrand, Johannesburg; Former Member of UN International Law Commission and UN Special Rapporteur on the Human Rights Situation in the Occupied Palestinian Territories
Magistrate-judge, lawyer. Director of the legal office ILOCA SL (International Legal Organization for Cooperation and Development, Spain
International Human Rights Lawyer and Adjunct Professor of Law, Georgetown University Law Center
Justice Richard J. Goldstone
Founding Chief Prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda; retired Justice of the Constitutional Court of South Africa
President Emeritus, Open Society Foundations; Founding Executive Director, Human Rights Watch; Distinguished Visiting Professor, Sciences Po, Paris (2012-2017)
Dr. Sriprapha Petcharamesree
Former Thai Representative to the ASEAN Intergovernmental Commission on Human Rights
International Human Rights Lawyer; Member of the Special Advisory Council for Myanmar; Former Member of the UN Independent International Fact-Finding Mission on Myanmar
Nelum Deepika Udagama
Professor of Law, University of Peradeniya, Sri Lanka and Former Chairperson, Human Rights Commission of Sri Lanka (2015-20)
Yuyun Wahyuningrum, Representative of Indonesia to the ASEAN Intergovernmental Commission on Human Rights (AICHR)
We welcome your comments on this article. What are your thoughts?
Rebecca Barber is Research Fellow, Asia Pacific Centre for the Responsibility to Protect, School of Political Science and International Studies, University of Queensland; William Bourdon is a lawyer at the Paris Bar, founding president of Sherpa and president of PPLAF (Platform to Protect Whistle Blowers in Africa); John Dugard is Emeritus Professor of Law, Universities of Leiden and the Witwatersrand, Johannesburg and former member of UN International Law Commission and UN Special Rapporteur on the Human Rights Situation in the Occupied Palestinian Territories; Baltasar Garzon is a magistrate-judge, lawyer and director of the legal office ILOCA SL (International Legal Organization for Cooperation and Development), Spain; Jared Genser is an international human rights lawyer and Adjunct Professor of Law, Georgetown University Law Center; Justice Richard J. Goldstone is founding chief prosecutor of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda and retired Justice of the Constitutional Court of South Africa; Aryeh Neier is President Emeritus, Open Society Foundations, founding executive director of Human Rights Watch and Distinguished Visiting Professor, Sciences Po, Paris (2012-2017); Dr. Sriprapha Petcharamesree is a former Thai representative to the ASEAN Intergovernmental Commission on Human Rights; Chris Sidoti is an international human rights lawyer, member of the Special Advisory Council for Myanmar and former member of the UN Independent International Fact-Finding Mission on Myanmar; Nelum Deepika Udagama is a professor of law at the University of Peradeniya, Sri Lanka and former chairperson of the Human Rights Commission of Sri Lanka (2015-20); and Yuyun Wahyuningrum is the representative of Indonesia to the ASEAN Intergovernmental Commission on Human Rights (AICHR).