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Does the UN need a more coherent approach toward “de facto” authorities?

As a result of the shifting dynamics in certain conflicts such as Ukraine and Afghanistan and as coups have become more common, particularly in Africa, the United Nations (UN) is having to engage with de facto authorities in a growing number of country contexts. This is presenting several operational challenges.

Currently, there is no system-wide policy across the UN for engaging with de facto authorities, resulting in a case-by-case approach with separate guidelines drawn up for each context. While de facto authorities come to power in different contexts and for different reasons, the central policy question facing the UN is how to balance the risk of legitimizing what are widely considered illegitimate forms of government with the need to continue to engage with these governments to fulfill key mandated tasks, including conflict resolution, humanitarian assistance, development cooperation, and human rights protection.

The term “de facto authorities” can refer to non-state entities or armed groups that are engaged in a struggle with the sovereign state and have effective authority over some territory and display state-like structures. Russian-backed militias and authorities have, for example, been part of the attempted annexation of eastern Ukraine. However, de facto authorities are also those that have seized power by force or unconstitutional means and govern despite not being recognized internationally or with the continued existence of a separate de jure government. This would include the Myanmar armed forces that attempted in February 2021 to illegally seize power just as the National League for Democracy (NLD) was about to form a government after winning elections. The Taliban’s takeover of Afghanistan in August 2021 has similarly led to an uneasy faceoff with the international community.

It is the second of these scenarios that is addressed here, including the specific dilemmas and operational challenges that these de facto authorities present for the UN, and whether a more coherent approach is required for how the organization deals with them.

To Engage or Not to Engage

In the countries where it operates, the UN has no role in recognizing states, which is the preserve of its member states. Nonetheless, by interacting with de facto authorities, UN entities can confer a degree of legitimacy, and therefore need to handle these situations carefully. For example, they may be best off avoiding public meetings with officials from de facto authorities or issuing formal communications to them such as notes verbales, which are the UN’s official form of correspondence with national authorities. In September 2022, 638 civil society organizations published an open letter to the UN secretary-general condemning the recent public signing of agreements with the Myanmar junta by representatives of several UN agencies, which underscores the reputational risks of engaging with de facto authorities.

Yet to not engage at all with de facto authorities is not practical and would prevent the UN from carrying out its work. For example, while the UN officially has a “no contact” policy with Hamas after it was designated a terrorist organization when it assumed power in Gaza in 2006, the UN special coordinator for the Middle East peace process regularly engages with the Palestinian armed group in efforts to prevent a flare-up of conflict with Israel.

Peacemaking is not the only UN task that involves engagement with de facto authorities. UN peace operations with mandates to support democratic transitions and extend state authority have had to reconfigure their engagement with de facto authorities in Mali and Sudan following coups in those countries in 2021.

The protection of civilians and the promotion of respect for human rights also require engagement with even the most egregious violators to advocate for them to respect their obligations under international law. Without ongoing interaction, the UN would be unable to present documented human rights concerns to seek accountability. The existence of competing authorities, however, raises the question of who should be held accountable for the crimes committed. For example, both the military junta and the National Unity Government have both claimed they should represent Myanmar in the case of The Gambia v. Myanmar under the Genocide Convention at the International Court of Justice.

Engagement with de facto authorities may also be necessary to ensure the delivery of humanitarian assistance and negotiate humanitarian access, putting the moral imperative to help people in need above the international community’s disavowing of certain regimes. For example, the UN Security Council included a “humanitarian exception” to its Taliban sanctions regime so that aid agencies could engage with the Taliban to avert a humanitarian catastrophe in Afghanistan after their takeover in August 2021. The practice has now been generalized for other such contexts.

Development cooperation, however, requires direct support to national authorities and may require significant reconfiguration when it’s no longer possible to transfer resources to de facto authorities. For example, after the 2021 coup in Myanmar, the UN country team undertook a due diligence exercise to cease any development program with junta-led line ministries.

The different pillars of work of the UN—peace and security, development, and human rights—are therefore impacted differently by de facto authorities, and the entities involved may view engagement with them differently, which makes agreeing a common approach more challenging.

Country Context Matters

The circumstances in which de facto authorities take control of governmental functions also have a significant bearing on the UN’s subsequent relationship with them as well the reaction of the international community.

Coups are, by definition, unconstitutional and, if successful and not reversed, usually lead to illegitimate regimes. The coup in Myanmar last year was illegal even according to the constitution the military itself had written, and the resulting regime is reviled by the people of Myanmar who have since launched an armed resistance. Coups in Mali, Burkina Faso, and Sudan over the past year have been condemned by the international community, and the UN has had to tread carefully with how it deals with the resulting military regimes.

Armed conflict can also result in de facto authorities such as the Taliban in Afghanistan and the Houthi regime in Yemen. Both the Taliban and Houthis are designated terrorist organizations, which is a major part of why they are considered de facto authorities. The same applies to Hamas, although it did not come to power by a coup or conflict but by winning elections in 2006.

Political Considerations

While there are normative considerations, such as democratic legitimacy and human rights record, the question of which authorities are considered “de facto” is extremely political. The decisions of the intergovernmental organs of the UN, particularly the General Assembly and the Security Council, can be instructive as to whether UN entities based in a country should consider that country’s regime to be a de facto authority. The Security Council may have designated a de facto authority a terrorist entity and condemned unconstitutional changes of government, although its record in response to coups has been patchy and inconsistent. The General Assembly has similarly raised concerns about such events in several contexts, but has often struggled to reach consensus on an appropriate response.

Who gets to represent a state at the UN also has implications for which authorities the UN should engage with on the ground. In December 2022, the UN General Assembly adopted the recommendation of the UN Credentials Committee to defer a decision on the representation of Afghanistan, Myanmar, and Libya. In effect, the credentials of the Taliban, the Myanmar junta, and the authorities in the east of Libya were rejected, which left the incumbent civilian government representatives in the seat.

The world body’s partnership with regional bodies can also indirectly shape its response to unconstitutional changes of government. The African Union (AU), for instance, has readily suspended the membership of states on the continent that experience coups. The Association of Southeast Asian Nations (ASEAN), though, has been less willing to condemn military takeovers in its region because of its guiding principle of non-interference.

A Common Policy

There are no fixed rules about which governments the UN should consider de facto authorities, but the organization faces common political, reputational, and operational risks when this does happen. While too close an association may legitimize the indefensible actions of de facto authorities, a certain level of engagement is required for the UN to fulfill its mandate tasks. Striking the right balance is not an easy task.

Given the increasing number of situations around the world in which the UN is now dealing with de facto authorities, it is perhaps time for a common policy across the UN system. What would that look like? It could first create a clear definition of de facto authorities and map the different scenarios in which the UN might find itself engaged with them. It could also provide ground rules for the UN’s interaction with de facto authorities while laying out considerations that are specific to each pillar of work of the UN. Such a policy would help bring some measure of consistency to what has become a challenging issue for the UN.

Source: International Peace Institute