Chapter 3:   THE PEOPLE

Section 10:   Secretary-General and the Secretariat

 

Writing to the Council about Myanmar, Secretary-General Guterres acts under Article 99

 

On 2 September 2017, Secretary-General António Guterres addressed a letter to the President of the Security Council concerning the situation in Rakhine, Myanmar (S/2017/753).  The opening sentence of the letter reads:

 

“In keeping with my responsibility to engage in preventing the outbreak or escalation of conflict,

I take this opportunity to share my deep concern about the security, humanitarian and human

rights situation in Rakhine State in Myanmar.”

 

Guterres went on to assert that, “The current situation . . . risks degenerating into a humanitarian catastrophe with implications for peace and security that could continue to expand beyond the borders of Myanmar.”

 

In closing, the Secretary-General stated

 

“It is important for the international community to send a strong message emphasizing the need for

support and constructive cooperation towards a broader political strategy and policy framework that

can help to end the vicious cycle in Rakhine.

 

“Furthermore, the international community has a responsibility to undertake concerted efforts to

prevent further escalation of the crisis.  I also urge the members of the Security Council to press for

restraint and calm to avoid a humanitarian catastrophe, full respect for human rights and international humanitarian law, and the continued presence and safety of the United Nations and partners to provide humanitarian assistance to those in need without disruption.”

 

This letter appears to be a very carefully worded initiative taken pursuant to Article 99 of the UN Charter.  That Article states, “The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.” 

 

Unlike most other cases in which Article 99 was invoked in the past (see related article on this website), Guterres’s letter neither makes explicit reference to Article 99, nor does it use some of the exact wording of that Article.  However, he does speak of his “responsibility to engage in preventing the outbreak or escalation of conflict”.  This “responsibility” is stated in a general way, rather than being attributed to a General Assembly or Security Council resolution on a relevant matter, such as “Responsibility to protect”, and the only general mandate the Secretary-General possesses substantively with respect to issues of peace and security is that conferred by Article 99.

 

The second factor suggesting that Guterres conceives of his letter as coming under Article 99 is the passage quoted above whereby he states that, “The current situation . . . risks degenerating into a humanitarian catastrophe with implications for peace and security that could continue to expand beyond the borders of Myanmar.”  Although not duplicating the exact wording of Article 99, this sentence suggests that the situation developing within Myanmar risks developing into a threat to the maintenance of international peace and security.

 

Guterres himself provided additional support for considering that he acted pursuant to Article 99 when he stated, at a press encounter on 5 September,

 

“I have written officially to the President of the Security Council to express my concern and to propose

various steps to end the violence and address the underlying causes of the crisis.  The international community must undertake concerted efforts to prevent any further escalation and to seek a holistic solution.”  (our emphasis)
 

Three days before the Secretary-General’s initiative, the Council discussed the situation in Myanmar under “Other matters” during closed consultations on 30 August, a development which Guterres welcomed in this letter.  However, that Council discussion did not lead to the adoption of any outcome document, and in fact none was proposed by the United Kingdom (the “lead country” or “penholder” for Myanmar) or by the United States, the two countries which have been proponents of more active engagement by the Council on Myanmar since it was first added to the Council’s agenda in 2006.[1]  Moreover, at the wrap-up meeting held on 30 August to mark the conclusion of that month’s presidency, no Council member mentioned the consultations on Myanmar held that very morning, and only one member, France, mentioned the situation in the country at all (S/PV.8038).

 

In most prior cases involving Article 99, the initiative taken by a Secretary-General was aimed at influencing the Council to convene a meeting to take up a pressing issue.  However, in view of the fact that the Council considered the situation in Myanmar only days before Guterres sent his letter, and in light of his statement on 5 September, it would seem that he was acting under Article 99 in order to bring to the Council’s attention not so much the need to meet on this matter, as the need to act on it.  In the letter, as quoted above, Guterres specifically urges the Council “to press for restraint and calm to avoid a humanitarian catastrophe, full respect for human rights and international humanitarian law, and the continued presence and safety of the United Nations and partners to provide humanitarian assistance to those in need without disruption.”

 

This would not be the first time that a Secretary-General appears to have acted under Article 99 not to influence the Council to consider a matter, but rather to act on it.  In 1961, Dag Hammarskjöld addressed an oral appeal to the Council in which he explicitly cited Article 99 when underlining the need for immediate action in connection with the situation in Tunisia.  Hammarskjöld made this appeal only one day after the Council met on this issue at the request of the Tunisian Government, but did not adopt any decision.

 

The related article on this website lists all previous instances of the application of Article 99, and notes that the last specific occurrence was in 1989, by Pérez de Cuéllar.  However, the article also notes that while Boutros Boutros-Ghali, Kofi Annan, and Ban Ki-moon never formally invoked Article 99, with some frequency they informally brought matters to the attention of the Council.  The book (page 163) observes that

 

“as part of the expanding interactions, both formal and informal, between the Secretary-General and

the Council members, it became somewhat commonplace for these Secretaries-General to draw the attention of the Council to situations already on its agenda which were deteriorating, and to request

that the Council consider taking appropriate action.  These alerts could be given to the Council through written reports of the Secretary-General, during his briefings in both formal meetings and informal consultations of the whole, by letter, or in informal settings such as the monthly luncheons and retreats.”

 

This more informal approach to Article 99 was confirmed by Kofi Annan’s Spokesperson during a noon briefing on 1 April 2002.  Asked by a journalist why Annan had requested to give another briefing to the Council members, this time in consultations, on the worsening situation in the Middle East, the Spokesperson responded that 

 

“he did, it’s true, call for this meeting, and he’s had telephone calls with world leaders throughout

the weekend.  So he has information to impart to the Council to assist them in their deliberations on

the matter. . . .  I don’t know the precise way it came about, but this is not the first time that through an exchange between the Secretary-General and the President of the Security Council that they mutually

agreed to call a meeting.  As he took the initiative, it would be under Article 99 of the Charter, which authorizes him to bring to the Council’s attention any threat to international peace and security.  But

they’re working so closely these days that it’s a phone call and not a formal letter any more to get the machinery going.”

 

Because several informal avenues exist for a Secretary-General to bring a matter to the Council’s attention, the decision by Guterres to write an official, published letter to the Council President is significant.  Such a public appeal pursuant to Article 99 will inevitably carry considerable political weight.  However, it is important to bear in mind that such an initiative does not place the Security Council under any legal obligation to respond by convening a meeting or adopting a decision.[2] 

 

Consequently, Guterres’s action entails political risk, both for him and for the Council.  The Council may be placed in an unfavourable light if it fails to act in response to the Secretary-General’s Article 99 appeal, especially given the wide media coverage of the horrific events in Rakhine, as well as the higher standards of accountability expected of the de facto leader of Myanmar, Aung San Suu Kyi, because of her status as a Nobel Prize winner.  The risk to Guterres is that he may appear ineffectual if the Council disregards his appeal.  He will also have expended considerable political capital, because formally drawing a matter to the Council’s attention pursuant to Article 99 is not a modality that a Secretary-General can afford to use very often.  Guterres would certainly be aware of these risks, but it appears that his action matured from genuine worry over the deteriorating circumstances in Rakhine. On 25 and 28 August, and 1 September, his Spokesperson issued three statements attributed to Guterres expressing concern over the situation.

 

Ultimately, any political risk for either Guterres or the Council may be limited by the fact that although the Secretary-General’s letter is known within the UN community, it has not gained much attention in the media.  Nicholas Kristof, who covers a broad range of international issues, appeared unaware of Guterres’s initiative when he wrote in the New York Times on 10 September 2017 that there has been “far too little outcry for the Rohingya; bravo to Pope Francis for being an exception among world leaders and speaking up for them.”  For Guterres’s appeal not be mentioned in this connection is telling.

_________________________________________

[1] It is noteworthy that the Council has not adopted any outcome document on Myanmar since 2009 (press statement SC/9662).

 

[2] An instance occurred in 1976 of a Secretary-General raising a matter explicitly under Article 99 without the Council taking any step to respond.  That year, Kurt Waldheim addressed an unpublished letter to the Council President in which he referred explicitly to his authority under Article 99.  Waldheim then put forward his view that unless there was a ceasefire, the civil war in Lebanon risked becoming a threat to international peace and security.  After receiving the letter, the Council did not take up the matter at that time.