Indian Defence Review

United Nations Security Council meeting (2009) at U.N. Headquarters in New York

In an era where there is increasing inter dependence amongst nations, where a narcissistic approach is a thing of the past, where good diplomacy and smart foreign policies are a way to subdue your opposition, the world is definitely turning into one global village. And to become the Sarpanch of this village has become quintessential for even the most picayune country. With everyone claiming supremacy and their so called legitimate rights, never has it been more relevant to solve the outstanding issue of reforming the United Nations Security Council.

The most coveted of all organs; the Security Council has often averted the most dangerous conflicts, being the fire fighters whenever there have been flames. But then again what would you say when the sceptics asked you about the councils indecision over the most plaguing global issues during the past five decades, the lack of action on the Soviets after their invasion of Afghanistan to more recently the watered down resolutions against Iran’s nuclear program. It is but natural that every coin has two sides and so to in this case to gain something one must lose something. But are we losing more than we are gaining? Are certain nations dictating the rules over the others? And are these nations even justified in having these rights? The last question seems to be the one that hurts the most, for it is but natural that some nations remain more powerful than others and thus decide the path for the others. It is an idiosyncrasy to have a few leaders and many followers, but is it appropriate to have leaders that no longer command respect? This is the case with some of those who hold the veto power. With the economics of the world changing from those that were at the end of the Second World War, today’s geo political scenario demands the inclusion of new members as permanent members of the UNSC.

History of SC Reforms

Until now, the only reform of the SC took place in 1963, when the number of the non permanent members was increased from 6 to 10 under Resolution 1991-XVIII. The amendment was approved in the GA with France and the Soviet Union voting against, the UK and US abstaining and China (Taiwan) voting in favour. All permanent members eventually ratified the amendment; if they had not, it would never have entered into force, which it did in 1965. Resolution 1991-XVIII also increased the number of ECOSOC members from 18 to 27. A second increase from 27 to 54 was approved with Resolution 2847-XXVI, with the amendment entering into force in 1973. The reason for increasing the number of SC members was the growth in membership numbers compared with the membership existing at the time of its foundation. In 1945 the UN counted only 50 members, while by 1963 its membership had risen to 115. This was due to the admission of several European States in 1955 and the entry of Asian and African countries as a result of decolonization. However, in 1963 the decolonization process was not yet complete. The birth of new countries with the completion of the process, the split-up of the Soviet Empire and the dissolution of Yugoslavia would dramatically increase the UN’s membership, which now stands at 92 States.

Non-permanent members are elected for two years by the GA and cannot be immediately re-elected once their mandate expires. They are chosen taking into account a geographical distribution initially established by Resolution 1991-XVIII and since then unchanged: 5 members from African and Asian countries, 1 from Eastern European countries, 2 from Latin America and 2 from the Western European and Others Group (WEOG).

The amendment of the UN Charter

Any modification of the United Nations Security Council membership involves an amendment of the UN Charter being improbable to foresee a modification operated by the practice giving origin to a kind of customary revision.

The Charter sets out two mechanisms: an amendment procedure (Art. 108) and a review procedure (Art. 109). From a formal standpoint there is no difference between the two procedures as far as amending the Charter is concerned. Any modification must obtain two-thirds of the votes of the GA or of the Review Conference and must be ratified by two-thirds of the UN’s members, including the permanent members of the SC. Permanent members do not enjoy any right of veto for the adoption of the GA or Review Conference decision. They may vote against the decision or abstain; the decision is adopted if it meets the two-thirds criterion. However, the permanent member must ratify the decision when it is submitted to its national parliament. If not, the amendment or decision is not adopted.

A problem of interpretation arises as to the meaning of two-thirds of the GA. Should it be two-thirds of those present and voting or two-thirds of all GA members? While Charter Article 18 on the vote by the GA states that Resolutions on important questions shall be taken by a two-thirds majority of the members present and voting, Article 108 on the amendment procedure does not qualify “two-thirds majority”. The issue was clarified by GA Resolution 53/30 of 23 November 1998, which states that the two-thirds majority for adopting a Resolution on amending the provisions governing the SC refers to two- thirds of the UN members and not two-thirds of members present and voting.

The Review Conference was never held, even though Article 109 envisaged that it should have been placed on the GA agenda 10 years after the UN Charter entered into force. The Charter’s tenth anniversary took place in 1955, when the Cold War was at its peak and such a Conference was inconceivable.

Article 108 and 109 do not set out any limit to the Charter amendment/review. They only regulate the procedure for amending the Charter and thus do not take any position on the substantive reform of the SC, whether this takes the form of an increase in the number of permanent or non-permanent members or a change in the veto system.

Reasons for reforming SC

There are a number of reasons for reforming the SC. They may be enumerated as follows:

(a) The birth of new States and the transformation of the international community;

At San Francisco the Charter was signed by only 50 States. The UN’s membership was more than double that number when the amendment on the increase in non-permanent members of the SC entered into force. Nowadays, the number of UN members has increased almost fourfold since its foundation. Since its birth, the international community has completely changed. At the beginning the UN was composed of Western and Eastern European countries plus a number of Latin America countries. Nowadays the majority of members belong to African and Asian countries.

(b) The increase of the SC’s role after the end of the Cold War

The role of the SC has dramatically increased since the end of the Cold War. While during the Cold War the SC was the place where the two superpowers engaged in verbal confrontation and was virtually paralyzed, after the fall of the Berlin wall its policy changed. The SC started to become the place where effective decisions were taken. This is demonstrated, for instance, by the number of peacekeeping operations put in place and by the crises solved, such as the Timor Leste case. The SC has also taken on an important territorial administration function, for example in Kosovo before its independence.

(c) The SC as legislator;

The Charter attributes to the Council the power to take decisions on measures to be carried out by member States (Art. 25). Mandatory sanctions fall within this framework. They are a kind of administrative regulation adopted to cope with concrete situations such as threats to peace. Since 9/11 the SC has started to adopt “legislative Resolutions”, i.e. Resolutions taken to address hypothetical situations such as the threat arising from international terrorism or WMD proliferation. Take for instance SC Resolutions 1373 (2001) and 1540 (2004). The former was adopted after the attack on the Twin Towers in New York on 11 September 2001. The latter defines the proliferation of WMD as a threat to peace and, like Resolution 1373, lays down provisions that oblige States to enact legislation to address proliferation and to ensure that they fulfil their duty to prevent the production of WMD. The Resolution declares that States should also adopt measures to prevent WMD and their means of delivery from falling into the hands of non-State actors. The creation of the two ad hoc criminal tribunals should also be remembered, i.e. the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (SC Resolutions 808-1993 and 995-1994).

(d) The new threats

The international community is facing new and dangerous threats, stemming from international terrorism, WMD proliferation and failed States. Nuclear proliferation has required action by the SC vis-à-vis those States that have withdrawn from the Non- Proliferation Treaty (NPT) or have been accused of failing to comply with the obligation to produce fissile material only for peaceful purposes. North Korea and Iran are cases in point. North Korea and the sanctions policy show how the freedom of States to withdraw from the NPT has been curtailed and the principle of consent to enter into international obligations have been reduced.

(e) The use of force by States

According to the Charter, States are allowed to use armed force only in self-defence. The principle is enshrined in Article 51 and the main moot point is whether anticipatory self- defence is lawful or, on the contrary, may only be exercised after an armed attack has occurred. Contemporary international law doctrine has construed Chapter VII as giving the SC the power to authorize States to resort to armed force whenever a threat to peace occurs. For instance, States may be authorised to use force to prevent or put an end to genocide or to meet a latent threat stemming from an accumulation of WMD.

Current Scenario

The current strength of the council stands at 15 with the bifurcation of non- permanent countries as follows: 3 from Africa, 2 members each from Asia, Western Europe and Latin America & 1 from Eastern Europe, whereas the Permanent 5 are the United States of America, People’s Republic of China, France, the Russian Federation & Great Britain. The non-permanent members are chosen for a 2 year term. Due to growing imbalance and mistrust many reforms have been suggested the three most popular reforms proposed to date are as follows:

G4 Reforms: The G4 are a group of countries who have rapidly growing economies and share the common interest of staking a permanent seat at the UNSC. They comprise of India, Brazil, Japan and Germany. These nations have rapidly growing economies and are large contributors to the United Nations. G4 Countries These nations have proposed the following for restructuring the Security Council: a) 6 more permanent members (4 seats go to the G4 and 2 to African countries) b) The current 10 non-permanent seats expanded to 14 seats.

Uniting for Consensus Reforms: This group of countries also known as ‘Coffee Club’ came together to stop the G4 from getting the permanent seats, they propose the addition of non-permanent members in existence to the current members. This 19-member group comprises of Spain, Italy, Argentina, Mexico & Pakistan amongst others. Their main motto is to ensure that there is regional balance amongst different regions across the world.

African Union (AU) Reforms: The main aim of the 53 country strong African Union is to increase its representation in the Security Council. They have proposed the following changes: a) 6 new permanent members out of which two should go to African nations b) 5 new non-permanent members out of which two would be AU countries.

Is a reform of the SC really necessary and/or feasible?

There are a number of reasons for reforming the SC. First of all, its expansion in membership. The UN now counts 192 members. A situation quite different from its foundation and from that existing in 1963 when the Council was expanded from 11 to 15 members. There are several reasons for reforming the SC. The main ones, which have often been pointed out, are its:

• Insufficient geographical representation
• lack of democracy
• lack of legitimacy for ensuring global governance
• Poor representation of the international community if compared with its increased powers.

Are there reasons that militate against a reform of the SC? If so, they are difficult to find. The main such reason is that a streamlined SC functions better than a large, expanded body. This is particularly true when important decisions must be taken, involving a long process of consultations among its members. But experience proves that even a lean SC is often stalemated when it has to respond to major crises.

The conclusion must be that the reasons in favour of a SC reform outweigh those against.

Whether a real reform is feasible is quite another question. The reform should involve not only the SC members, but also the right of veto. Other “reforms” may be achieved through day-to-day practice, without amending the Charter. At most, one may conceive of one or more amendments to the Council’s rules of procedure, for instance regarding its working methods. As Jacobs Silas Lund pointed out, “allowing things to remain as they are […] may be a much more realistic option than one might assume”. He points out, mentioning an insider’s opinion, that even the G4 countries fear that the non expansion option might be a possible outcome of the current negotiating effort. Nor is the reform of the right of veto gaining currency. On the other hand it is almost impossible to circumvent the amendment formal procedure by having recourse to a kind of customary amendment through practice. This would be impossible for reforming UN organs. The conclusion is very pessimistic, since “some of the P5 countries are more than happy to see reform moving at near-zero-velocity speed”.