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UN Security Council Reform in Focus
Public scrutiny and debate needed, not closed meetings
Ronda Hauben (netizen2)     Print Article 
Published 2008-09-15 03:06 (KST)   
The critical need for Security Council reform is being expressed by a number of nations at the United Nations as the 62nd session comes to an end and the 63rd session of the General Assembly gets underway.

Describing this urgency, Hilario Davide, the Philippine ambassador to the UN, told the Security Council Open Debate on its Working Methods held in late August: "Calls for changes and reforms in the Security Council are becoming louder and stronger. In due course, it may even become irresistible" (1).

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The Problem of Equitable Expansion

The 61st session of the General Assembly ended a year ago with a resolution on Security Council reform stating that intergovernmental negotiations would take place in the next session and that a transitional agreement could provide for the flexibility needed to try out a tentative solution. The idea of a transitional agreement was presented as a breakthrough. Similarly, the plan to move to intergovernmental negotiations was a means to move past the deadlocked working group phase of discussion.

No such activity took place during the 62nd Session of the General Assembly, which ran from Sept. 18 2007 to Sept. 15, 2008. Instead, the members of the General Assembly once again have the dilemma of passing the problem onto the next session of the General Assembly, which begins on Sept. 16.

Most of the delegations to the UN maintain that there is a need for some change. What the change should be, however, is a deeply contentious issue. There have been a number of proposals over the years. The effort to create a forum to reform the Security Council has been going on for years. The most recent effort dates back to 1993 when the Open Ended Working Group was created. Since then the problem has passed from one General Assembly session to the next.

There are a number of proposals for reform that have been presented to the UN membership but none has gained general acceptance (2). Among the more well-known proposals for reform is that of Germany, Japan, India and Brazil (Group of Four [G-4]), proposing four new seats for themselves and two for African nations. In this proposal, the new permanent seats would not hold veto power.

Several other member nations appear concerned that if a nation from their region in this group gains the additional power that possessing a permanent Security Council seat represents, it will shift the power balance in the region in an undesirable way. Such a concern is an impetus for other proposals, such as the Uniting for Consensus Group of nations led by Pakistan and Italy, which opposed the creation of new permanent seats for individual nations, but advocated 10 new seats for two-year renewable terms..

Another proposal on behalf of a group of 54 African nations is asking for both permanent and nonpermanent seats to be assigned to the African region, with the decision of which nations fill those seats to be determined regionally. The African group wants the permanent seats to be with veto as long as any other nation on the Security Council has a veto. Its proposal is for an increase in total council membership to 26 seats, with two of the six new permanent seats to be for nations selected by the African region, and two of the five new nonpermanent seats to be for African nations as well.

The Organization of Islamic Conference has expressed its concern that there be adequate representation for its members.

Does the Council Act on Behalf of the Members?

Despite the differing views on how to expand the Security Council membership, there is an agreement among many of the nations on the need for changes in the working methods of the council.

In statements made at the Open Debate of the Security Council on Working Methods held on Aug. 27, several nations point to Section 1 of Article 24 of the United Nations Charter, which says that the council acts on behalf of the members. They argue that this article obliges the council to involve them when determining its course of action.

The language in the charter reads, "In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf" (Article 24, Section 1).

Several of the nations not on the Security Council say they are rarely consulted or even informed about the issues being determined. Yet they are told that they must enforce the decisions made by the council.

Even some of the members of the council itself report that they do not know how the decisions by the five permanent members of the council (P-5) are made in the drafting of resolutions. Also, they observe that non-council groups or nations are part of the process of drafting resolutions instead of the members of the council.

Article 32 of the charter states, "Any member of the United Nations which is not a member of the Security Council, or any state which is not a Member of the United Nations, if it is a party to a dispute under consideration by the Security Council, shall be invited to participate, without vote, in the discussion relating to the dispute."

Instead, nations complain that even when they are a subject of or involved with the matters before the Security Council, they are excluded from the discussion and negotiation of resolutions and are only allowed to speak after a decision has been agreed to and voted on by those on the council.

Since nonpermanent members only serve for two years at a time, they are at a disadvantage when compared to the P-5, which have been on the council since it was created over 60 years ago. The P-5 nations are familiar with the past experience of the council. They also have greater resources to draw on in keeping up with the intense schedule of diverse issues that come before the council. In addition, the P-5 can use their veto as a means to pressure for their interests or to threaten that they will prevent any action.

Nations Urge Specific Reforms

Following are a few excerpts from many statements made by UN delegates at the Aug. 27 open debate describing what delegates view as the problems that need attention.

Dumisani Kumalo, the South African ambassador to the UN, explained:

"The Security Council has witnessed the gradual erosion of its credibility and authority. Its representativity has been challenged increasingly, as it addresses matters that have expanded beyond the vision that the founders of the United Nations foresaw in 1945.

"In the past decades, permanent members of the Security Council have sought to utilize the Council to further their own interest. We have always been troubled by the fact that issues such as Kosovo, Western Sahara, non-proliferation and even Georgia, are regarded as of interest, at least to some members of the Council, to the exclusion of other issues. On the question of the Middle East, people around the world are well aware that the Council has remained paralyzed in trying to address the plight of the Palestinian people 40 years after the illegal occupation of their land" (3).

Ambassador Davide of the Philippines told the council:

"Due process and the rule of law demand that Member States that are not members of the Security Council but are the subjects of the Council's scrutiny should have the right to appear before the Council at all stages of the proceedings concerning them to state or defend their positions on the issues that are the subjects of or are related to that scrutiny. At present such participation is unfairly limited by rules 37 and 38 of the provisional rules of procedure. This is a denial of due process, which is a violation of the basic principle of the rule of law. Due process and the rule of law require that a party must be heard before it is condemned" (4).

Mehdi Danesh-Yazdi, the Iranian ambassador to the UN, asked:

"A legitimate question therefore arises: whether the outcome of such non-transparent, exclusive and political procedures can represent the points of view of the entire membership. How can one expect Member States to implement decisions that are made without even minimal engagement on their part, or even without their knowledge?" (5).

Maria Fernanda Espinosa, Ecuador's ambassador, reminded the council:

"In failing to apply these methods and thus failing to improve its working methods, the Council has overlooked the fundamental premise that its actions are carried out on behalf of and in representation of all Member States" (6).

Does the Council Act in Accord with the Charter and International Law?

The UN Charter states that the member nations are obliged to carry out the decisions of the Security Council that are in accord with the charter. This implies there is an obligation of the council to draft resolutions that are in line with the obligations of the charter and of international law. According to Article 25, "The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter." Presently, however, there is no mechanism to prevent the council from passing resolutions contrary to the charter and then claiming that member states must enforce the resolutions.

A case in point is the sanctions list the Security Council has compiled of the names of individuals and entities that it alleges have been involved in the financing of the al-Qaida network and the Taliban. This is detailed in Security Council resolution 1267 (1999) and related resolutions.

The bank accounts of these individuals and entities are to be frozen and a ban instituted on their right to travel (7). Several of those whose names have been put on this list have appealed to various courts and sought other avenues for legal remedies, as they claim none exists within the UN processes. A recent decision by the European Court of Justice on Sept. 3, agreed with the arguments of two of those on the list, Yassin Abdullah Kadi, an individual, and Al Barakaat International Foundation, an entity (8).

The two separate cases were joined together by the court. The court found that both are being denied the mandatory due process procedures that are to be followed when access to one's property or to the right to travel are being denied. Therefore, being put on the sanctions list subjects them to a violation of their human rights. The court decision refers to the obligations of the UN charter to "encourage respect for human rights" (Article 1, Section 1).

The European Court of Justice said Kadi and Al Barakaat's argument was well founded, that European Union (EU) and European Community (EC) regulations to enforce the Security Council sanctions to freeze their funds violated their rights of defense, "especially the right to be heard, and of the principle of effective judicial protection" (Decision No. 353). It ordered that the two particular regulations imposing the restrictive measures on persons and entities associated with al-Qaida and the Taliban be annulled, but that the effects of the regulations be maintained for a period not to exceed three months so that the EU and EC could remedy the infringements found and redraft the regulations.

In their criticism of the working methods of the Security Council, several nations explain that they do not want the council to be acting arbitrarily or outside of the framework of international law.

Expressing this idea, Marty Natalegawa, Indonesia's ambassador to the UN, told the council:

"We seek a Council that safeguards the interests of all and whose decisions and actions are in full consonance with the established principles of international law and the Charter of the United Nations" (9).

Open Processes Make Reform Possible

The challenges facing the nations of the United Nations in trying to bring reform to the practices and composition of the Security Council are formidable. The possible veto of any change by any of the P-5 nations presents a difficult obstacle to overcome. Similarly, fostering agreement among the diverse nations as to what change is needed and how to implement it is similarly a difficult task.

Considering the difficult nature of the problem, the process in working for reform becomes important. If discussion of the various proposals for change is done in an open environment, the details can be covered by the press and public discussion can be encouraged. The activities of the group working on council reform (10) held during the 62nd Session of the General Assembly, however, were often held in closed meetings and even some of the nations involved complained that they were kept in the dark about what was happening (11).

Little progress is likely to be made in this difficult area of United Nations reform unless the whole process is opened up to welcome public scrutiny and discussion. Such discussion helps to clarify the public interest and to find ways to solve problems impeding a solution that is in line with the public purpose.

For example, in 2003 the United States sought to get a Security Council resolution authorizing the invasion of Iraq. The argument was made that it would weaken the UN if the Security Council failed to authorize the invasion. One of the ambassadors on the council at the time explained how the broadly based international coverage of council meetings and the broad public discussion of the issues involved helped to clarify that it was in the best interests of the UN not to authorize the invasion. This international public concern helped him to resist the pressure.

The lesson of the need for open, public processes is a lesson that can help to guide the efforts toward Security Council reform in the 63rd session of the General Assembly. Democratizing the UN has been proposed as a key issue for this session and for the opening debate. This is a sign that there are some nations that recognize the problem and will make efforts to solve it.
1. Security Council meeting, Aug. 27, S/PV.5968 Resumption 1, p. 8, and longer statement distributed by ambassador at meeting. This statement was one of many comments presented at a meeting of the Security Council to discuss its working methods on Aug. 27. This council meeting on the subject, held under the Belgium presidency in August, was a rare event that several delegates urged be repeated at least every two years.

2. See a summary of some proposals at Reformtheun.org.

3. Security Council meeting, Aug. 27, S/PV.5968 Provisional, p. 15.

4. Security Council meeting, Aug. 27, S/PV.5968 Resumption 1, p. 8.

5. Security Council meeting, Aug. 27, S/PV.5968 Resumption 1, p. 12.

6. Security Council meeting, Aug. 27, S/PV.5968 Resumption 1, p. 13.

7. For details, see Ronda Hauben, "At the Crossroads: Security Council Sanctions Imposed without Due Process," Telepolis, June 29.

8. See Decision Judgment of the Court (Grand Chamber), Sept. 3.

9. Security Council meeting, Aug. 27, S/PV.5968 Provisional, p. 5.

10. The actual name of the working group is the Open Ended Working Group on the Question of Equitable Representation and Increase in the Membership and Other Matters related to the Security Council. The proposal for the Sept. 9 draft for the final document is A/Ac.247/2008/L.1/Rev.1.

11. For a summary of some of the actions of the working group, see "Security Council Reform Debate Heats Up as Member States Negotiate Final Drafts," by Jonas von Freiesleben, Sept. 11.

--

An earlier version is on netizenblog.
©2008 OhmyNews
Other articles by reporter Ronda Hauben

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