Sai Wansai – As the mid-September United Nations General Assembly (UNGA) approaches and the National Unity Government (NUG) and the military junta also known as State Administration Council (SAC) are seeking to represent Burma or Myanmar in the United Nations, with both undertaking whatever they can to elbow each other out.

The SAC on its part has created the so-called caretaker government sending signals to the international community that the junta is there only temporary and will draw back as soon as the election is held in two years time, which it has extended from the promised one year when it first launched the putsch to two years lately.

In addition, at the end of July the junta-appointed Union Election Commission (UEC) also nullified the November 2020 election results, where the National League for Democracy (NLD) won with a landslide, saying that it rigged the election, which is absurd, incorrect and far from reality.

It also has asked the US to send back the UN Ambassador for Myanmar Kyaw Moe Tun, as he sided openly with the parallel NUG on February 26 publicly in UNGA. But the US authority refused to comply with it and instead accepted him according to the UN as the incumbent UN ambassador to represent the country.

Very recently on August 6 US prosecutors say they have charged two Myanmar citizens over a plot to attack or assassinate Kyaw Moe Tun. The ploy probably was hatched by the junta, although it denied the allegation. As a result, the US authorities have stepped up security protection for him, arrested two individuals involved and the FBI is investigating the case.

On the NUG part it has been busy talking to various international players. Quite recently on August 4, the NUG Foreign Minister Zin Mar Aung has even spoken to US Deputy Secretary of State Wendy R. Sherman.

“They discussed ongoing efforts to return Burma to a path to democracy, including continued U.S. support for the pro-democracy movement. In addition, they discussed efforts to combat rising COVID-19 infections in Burma and to provide critical humanitarian assistance to the people of Burma,” according to US Department of State Spokesperson Ned Price.

On August 10, the NUG support group General Strike Coordination Body (GSCB) launched political campaign on Facebook with profile frame written slogan “Accept NUG, Reject Military” which the media reports said exceeded two millions in just two days.

The junta was so furious it even charged 63 artists, entertainers and well-known Myanmar citizens who changed their Facebook profile frame to support the political campaign, under the Anti-Terrorism Act. Yangon West District Police Station recently ordered all townships in Yangon Region to compile a list of participants, according to a Mizzima report of August 15.

Reportedly, the artists and celebrities charged under Section 505 (a) during the anti-military protests earlier were charged again for the participation in this Facebook campaign movement.

Another move that the NUG undertook was launching an online lottery with the aim to support the Civil Disobedience Movement (CDM) and anti-junta strikers with 70 percent of the earnings, while the remainder would be kept by the winners. It has been so well received by the public that  on the first day August 15,  67,000 tickets were sold out in just a little over one hour. The following day 72,000 tickets were sold out, according to the “Spring Lottery” Facebook.

Four Possible Scenarios in UNGA

According to Special Advisory Council- Myanmar (SAC-M) “Briefing Paper: Myanmar’s representation in the United Nations” dated August 11, 2021, four scenarios may come into consideration.

They are – acceptance of the NUG’s credentials; acceptance of the SAC credentials; deferral, retaining the incumbent; and deferral, with no representation.

“The first scenario is that the credentials of the NUG are  accepted.  In  this  case,  the  Committee could recommend the UNGA accept the credentials submitted by the NUG,” writes the SAC-M report. But regardless of such endorsement, it is not clear if the possible rejection of say China, Russia and others in their league could stem the tide, even if the UNGA majority decision cannot be vetoed.

The clear past example was that the UNGA majority decision traditionally prevailed.

“It is common practice for the UNGA to accept the recommendations of the Credentials Committee without a vote. But there is no rule that it must. In 1973, the UNGA voted to reject the credentials of the representatives of South Africa because of the country’s anti-democratic apartheid regime,” writes Catherine Renshaw recently in The Interpreter, published by Lowy Institute.

In 1992 Haiti case the  Credentials Committee recommended that the UNGA accepted credentials  submitted on behalf of the constitutional government, instead of the military coup-maker.

“In 1997, following a military coup in Sierra Leonne in May, the Committee accepted the credentials of  the incumbent representative who did not represent the military junta.”

In  June  2009  the UNGA promptly adopted a resolution which condemned the military coup in Honduras, followed by the Committee’s decision in December, to accept credentials of the constitutional government rather than the military junta.

“A  second  scenario  is  that  the  UNGA  accepts  the credentials  of  the  military  junta.  This  would  likely require a recommendation by the Credentials Committee, and an adoption of this by the UNGA. That seems very unlikely in light of the widespread support recently for a relatively strong UNGA resolution on the situation,” according to the SAC-M report.

“A third scenario is that a decision is deferred, with the incumbent representative retaining accreditation to participate in the UNGA.”

This means UN Ambassador Kyaw Moe Tun representing Myanmar will be allowed to go on and participate in the UNGA.

“The fourth scenario is a deferred decision, with the expressed understanding recognised by the UNGA that this would result in no one occupying Myanmar’s seat at the UNGA,” writes the SAC-M report.

Recognition of Government

The recognition of the government is a tricky business and the interpretation could be slightly different among the UN member countries.

“According to the Japanese report, Japan sets two conditions for recognition of governments: territorial  effective  control  and  willingness  and  capability  of  observing  international  law.  However, even when both conditions are present, there is no obligation to grant recognition,” writes  the third report titled: “International  Law Association Johannesburg (2016), Recognition/Non-recognition in International Law”.

In its third report introduction it writes: “The Committee on Recognition/Non-recognition in International Law was established by the Executive Council of the International Law Association (ILA) in May 2009, with the purpose of examining “whether contemporary issues of secession, break-up of States and the creation of new States have changed international law and policy with respect to recognition.” The Committee first met at the 2010 ILA Conference in The Hague, Netherlands. It also held meetings in the 2011 Regional ILA Conference, in Taipei, Taiwan, in Vienna in January 2012, in the 2012 ILA Conference in Sofia, Bulgaria, in Warsaw in June 2013 and in Washington in 2014.”

Brazil  has  listed  four  criteria  to  recognize  a  government:  “(i)  effective  control  over  the territory  and  population;  (ii)  commitment  to  follow  international  obligations;  (iii)  the  consent  of  the government to be recognized; and (iv) the democratic and constitutional character of the government transition in question,” according to the report.

It emphasized that states occasionally have to deal with competing claims of representation of a government and in such cases, “ (A) a  position  is  developed  on  a  case-by-case  basis.  Different  criteria were mentioned, including legitimacy, effectiveness, effective control, national interest, position taken by regional and international organizations and observance of democratic and constitutional procedures.”

Perspectives

However, without going into exhaustive details let us just consider a few most important criterion in cases of competing credentials, due to the situations like Burma where a government was forcibly overthrown and concerned people have to consider factual issues, as SAC-M rightly pointed out.

“These are: the effective control exercised by each authority; the democratic legitimacy held by each authority; and also, their adherence to international law.”

First, let us look at the democratic legitimacy of the junta and NUG. Clearly, legitimacy of the NUG with its legislature branch of Committee Representing Pyidaungsu Hluttaw or Union Parliament (CRPH) made up of election winning MPs held in November 2020 is way ahead of the junta’s SAC or caretaker government, as it has overthrown the elected government and taken the country’s political power through military coup.

Second, in adherence to international law, the junta with its decades-long track record of human rights violations in ethnic states, including the well publicized Rohingya genocide intent operations of 2017, and the recent six months gross human rights abuses and crime against humanity across the country, documented by the Assistance Association for Political Prisoners (AAPP) are there for all to see.

“As of 16 August, (998) people are now confirmed killed by this junta coup. AAPP compiled and documented (27) fallen heroes today. (1) was an MP from Bago Township in Bago Region who died today and (26) from Dawei Township in Tanintharyi Region, Bago Township in Bago Region, Hlaing Thayar Township in Yangon Region and Kani Township in Sagaing Region were killed on previous days and documented today. This is the number verified by AAPP, the actual number of fatalities is likely much higher.”

“As of August 16, a total of (5711)people are currently under detention. (255) people have been sentenced in person, of them 26 have been sentenced to death (incl. 2 children). 1984 are evading arrest warrants. 118 people have been sentenced in absentia, of them 39 sentenced to death in absentia. In total 65 sentenced to death, in person and absentia.”

As for the NUG, it has corrected the mistakes or indifference of former NLD government which held office from 2016 to 2021 February, by abolishing notorious 1982 citizenship law,  promised the Rohingya citizenship and planned to include Rohingya representative in its government. Furthermore it publicly said that it will abide by International Court of Justice (ICJ) ruling on genocide issue of Rohingya, including aiming to sign the Rome Statute.

It said it has been trying to include as many ethnic armed organizations and ethnic political parties but with little success. This may be partly due to the distrust of NLD-led NUG because it hasn’t been able to adequately spell out clearly its political vision of federal union to the the ethnic nationalities and failing to accommodate a broad-based coalition government that includes and represents all ethnic groups in collective leadership mode.

In short, the NUG is not yet seen as all-embracing from the ethnic nationalities’ point of view, but more as NLD majority led government. No wonder, no ethnic armed organization has officially joined the NUG, except a minor Chin National Front with 200 soldiers. If it wants to succeed a real ethnic-democratic alliance government it has to accept and strive for equal representation and “unity in diversity” in words and deeds.

On effectiveness, both the NUG and SAC have not been able to deliver. The former being a newly formed setup without much resources and experience and the latter, because of the public rejection of its coup from day one, exacerbated by CDM and newly formed local armed resistance groups countrywide against its rule.

On effective control, the NUG has no territory in the sense of liberated zones for the moment, although the rebelling population is sympathetic to it or because of the hatred harbored on the military junta. Of course, it is also still struggling to solicit fund and trying to gather revenue to fund the revolution.

As for the SAC its control on security apparatus seems to be still working although reports said that the moral of its troops are waning and low, with around 1,500 were said to have defected to the CDM. Other institutions like civil administration, healthcare, transportation and education and so on are also not functioning due to the CDM, to say the least.

In sum, the duel in UNGA for legitimacy recognition in the UN may be important. But winning the hearts and minds of the people will be the most crucial part, as without it no government will be able to survice long enough, as government of the people,

by the people , and for the people, where the population willingly and happily would sibmit to its rule.