By Mizzima News
With the palpable frustration of Burma's democratic opposition to United Nations efforts in Burma following the Special Envoy's most recent visit, but scarce mechanisms through the international body appear left to opposition politicians and activists to alter the balance of power in the crisis stricken country. One however, is manifested in the current attempt to deny the junta their seat in the United Nations General Assembly as the legitimately recognized government of Burma. Could this happen?
The logistics of dismissal
First, it must be understood that the petition before the United Nations does not deal with repealing the membership of Burma from the international body, it is concerned solely with the removal of the junta's representative in the General Assembly – membership is a matter empowered to the Security Council.
Questions regarding representation, however, and as extrapolated upon yesterday by the Secretary General's office, are initially directed to the Credentials Committee of the General Assembly. If the Committee decides to act on a motion put before it, their recommendation must then be approved by a two-thirds vote in the General Assembly.
However, there are numerous verdicts open to the Committee on questions of representation. In addition to either approving or negating an appeal, the nine-member Committee may also defer any decision. A deferral, in turn, could result in a range of outcomes, from the country's seat being left vacant to the Committee electing to take no action and make no recommendation whatsoever.
The nine-member Committee is reassigned at the onset of each annual General Assembly convention; though, as a matter of 'tradition,' China, Russia and the United States invariably obtain seats. Further, Rule 29 of the Procedures states: "Any representative to whose admission a Member has made objection shall be seated provisionally with the same rights as other representatives until the Credentials Committee has reported and the General Assembly has given its decision."
It then follows that in reference to the composition of the Credentials Committee that will consider the dissident petition to unseat the junta, representatives from China, Russia and Burma will comprise thirty percent of the panel.
Logistically, therefore, for there to be any hope of a majority verdict and the petition making its way to the General Assembly floor, five of the six remaining delegates to the Committee will have to side with the assumed position of the United States, and against that of China, Russia and Burma.
What, then, are the criteria Committee members will base their decision upon?
The opposition argument before the Credentials Committee
Simply put, there are no bona fide credentials for Committee members to reference. The petition from the dissident politicians argues their case on two fronts: the origin of the junta's political rule and the manner in which rule has been exercised. The first claim references the annulled 1990 election results, the latter that of systematic human rights abuses by the junta directed at its own citizenry.
Echoing the position of the democratic opposition, a 2008 Opinion from nine experts on international law from across the globe, states: "Substantial control over territory should not override the SPDC's [Burmese government's] persistent disregard of its international obligations and its evident lack of support from the people."
In making this argument, those opposed to the junta occupying the country's seat in New York are putting forth what they believe to be the paramount criteria upon which to judge representation. It has been argued that these prescribed decisive factors, namely electoral results and respect for human rights, were at the foundation of a new international code of legitimacy established out of the ashes of the Cold War.
Gregory Fox, in his 1992 article entitled, 'Legitimacy of Governments in the Age of Democracy,' writes: "Although democracy as such has not been relied on by the General Assembly to determine member states' representatives, it must be pointed out that the United Nations has nevertheless used a test of legitimacy based on origin."
It is no coincidence that 1992 also saw the release of such works as Francis Fukuyama's The End of History and the Last Man, which served as a literary standard bearer for those adhering to a theory of the inevitable tide of democratic governance to sweep across every country, the waves only gaining velocity in the aftermath of the United States victory in the Cold War. The early 1990s were indeed stirring days for democratic yearnings and projections.
Fox, for his part, proceeds to postulate that the Credentials Committee should be used as one more weapon in the promotion of democracy – arguing that the Committee should strictly adhere to respect for the electoral process as a mandatory precondition for seating any government in the General Assembly.
To further bolster the democratic trend and benchmark argument, several authors – including the nine international law experts earlier alluded to – reference post-Cold War cases brought before the Credentials Committee.
Prominent examples of authorities denied a seat in the General Assembly even though their governments exercised control over most of the country in question include Afghanistan, Cambodia, Haiti, Liberia and Sierra Leone. In these incidences, the Credentials Committee deferred to an elected government removed from power through non-electoral means.
Clearly then, there is a precedent for the Committee to consider concerning cases where electoral results went unhonored.
Touching on the petitioners other claim of how power is abused in the hands of the junta, Fox remarked: "The example of South Africa [during apartheid], however, is unique. There are no other instances where the delegates of a government have been denied standing because of the way they exert power. This case demonstrates that it is conceivable for the UN General Assembly to regard a government as illegitimate because of its illegitimate exercise of power."
Thus, while not as numerous to draw upon as examples centered on the origin of power, there also exists precedent for the Committee and General Assembly to take into account when dealing with how power is used.
But is the international community – and as reflected in bodies such as the General Assembly – really embracing a new age in legitimacy? Are ideological divisions truly over? And are national and organizational interests increasingly and willingly subservient to an evolving doctrine of international law?
A hostile international environment
According to the Hoover Institution, from 1990 to the middle of the decade the world witnessed an increase in the percentage of democracies from half of all countries to three out of five. But, in referencing the work of Freedom House, for over ten years now the percentage of countries democratically governed has effectively remained unaltered – with actually fewer democracies recognized in 2008 than in the previous year.
It is telling that in the numerous case studies referenced in the 2008 Opinion of the international law experts, not one originates from this century. The world is evolving, with national interests again visibly asserting themselves over the head of international ideals.
In truth, it is not even clear that the Credentials Committee ever looked to democratic roots as a decisive factor in reaching its decisions. It is possible that the decisions, made in the 1990s and during a time when democratic verbiage was very much in vogue, were instead made in recognition of the national interests of major international powers and/or regional actors.
With respect to Burma, the member states with the most at stake in the realm of national interest are Burma's neighbors in ASEAN, India and – most importantly – China. It is well in doubt whether this regional community will share the interests of the dissident Burmese politicians.
Additionally, unlike a majority of the cases referenced where the General Assembly refused to recognize the authority actually governing a country in favor of an ousted and democratically elected government, the United Nations does not have a significant institutional legacy to concern itself with and protect in Burma.
Instead, the United Nations – and most confrontationally in the words of organizational staff and representatives in the wake of Gambari's last visit to Burma – has remained adamant that it is pursuing a "process" in the troubled Southeast Asian country. Stripping the junta of their seat in the General Assembly would in all likelihood bring whatever "process" there is to an abrupt conclusion.
Lastly, international law is in conflict with itself. Discourses on supranational law, such as those relating to universal human rights, are increasingly coming into conflict with international law still entrenched in the post-Westphalian world of nation-states. And, further hampering the ascendancy of supranational law in the United Nations is the fact that the body's structure and Charter are reflective of the world at the time of its inception in 1945, a world beholden to the supremacy of the nation-state.
In such an international environment, should the junta fear being shown the door at the General Assembly?
What must happen
"Using the credentials process merely as a tool to punish non-democratic governments would not be constructive," put forth Matthew Griffin in a 2000 edition of the Journal of International Law and Politics. Griffin proceeds to express the opinion that a government should only have their seat revoked if a reasonable expectation can be made that such an action would prove effective in addressing the problem.
Given the wide divide over punitive measures – sanctions being the most obvious – against the generals in Naypyitaw, it is likely that any chance of success in revoking the junta's seat will need to be interpreted by a broad segment of the Assembly, as well as by the United Nations in general, as a positive rather than negative step in addressing Burma's political impasse.
If this argument can be made and the national and institutional interests of member states and the United Nations protected, then there is just a glimmer of hope.
However, today's pervasiveness of conflicting interests and ideological interpretations does not auger well for the fate of the petition. And more than anything else, the frost that has for several years now been descending on the field of international relations – must again thaw.
