Reform of the Security Council
Page 13.During these last rounds of negotiations, Italy did not
present anew its proposal for a
European Union (EU) seat. However, both Italy and Portugal underlined the great
change effected by the entry into force of the Lisbon Treaty. In the
opinion of both
countries this new reality should be translated “in the manner in
which the EU interacts
with the Security Council”17, and according to Italy must be taken
into account in any
further development of the SC’s reform.
Germany, while campaigning for its own permanent seat, has stated that
the final goal
– in an unforeseeable future – would be the creation of a European seat.
****************************************
10. What role for the EU in the SC?
Is EU membership of the Security Council legally feasible? The answer
is clearly in the
negative, since to be a member of the SC an entity must be a member of
the UN. The
Organisation is open only to States, as set out by Article 4 of the
Charter. The legal
personality of the EU, as formally embodied in the Lisbon Treaty (Art.
47 of the Treaty
on European Union), does not open up any new prospects. Among other things, the
EU, like other international Organisations, already had a legal
personality even though
this was not formally stated previously. For instance the EU, as a subject under
international law, entered international agreements and was subject to
international
responsibility if it committed any international offence. EU
membership may be seen as
a goal, to be pursued in the long term, only if the unification
process gives rise to a
federal State.
According to a number of scholars the EU is a federation in fieri (in
the making).
However, this is not sufficient to comply with the statehood criterion
required by Article
4 of the Charter. One possible way out would be to change Article 4 and include
international Organisations as potential UN members. However, this
proposal would
open up a real Pandora’s box and other Organisations, for instance the
AU or the OSA
and the Arab League, would apply for membership. The EU’s presence in
the SC is for
the time being unrealistic, as Mr. Alexander Graf, rapporteur on UN
questions to the
European Parliament, admitted before the start of the 65th Session of the UN GA.
The European Union already has a presence in the UN, in the form of
two permanent
members (France and the UK) and of two or three non-permanent members elected
from the WEOG (usually two members) and often a member from the Eastern or Asia
Group. For the electoral process, the Groups are still those set forth
in GA Res. 1991
(XVIII) of 17 December 1963. Following the EU’s enlargement, 16 EU
members belong
to the WEOG, 8 to the Eastern Group and 1 (Cyprus) to Asia.
There are two possible courses of action:
· The first is to have a non-permanent member seat attributed on a
rotating basis to
an EU member. This member should represent the EU and a machinery
establishing a connection with the EU should be set out;
· The second is a correct implementation of Article 34 (former
Article 19) of the
Treaty on European Union in order to defend the positions and the
interests of the
Union and to enable the High Representative to present the EU’s position.
The High Representative could explain the EU position, provided that a common
position does exist. And this, as shown by the 2003 Iraq war, is not
always the case.
However, closer and better coordination of the EU members when they
operate in the UN is the only viable solution. This coordination
should involve not only the SC but also the GA and all other organs,
for instance the newly created Human Rights Council. The
European Parliament recommended this to the EU Council, which adopted a
Resolution on 25 March 2010 in light of the 65th Session of the GA.
The Resolution
also points out that an EU seat in an enlarged SC is a long-term
objective that should
be pursued.
Coordination, however, has its limits: Article 34 expressly safeguards
the responsibility
attributed by the UN Charter to the SC members. This means that the
interests of the
permanent members are protected, including the right of veto.
11. 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:
· lack of democracy;
· insufficient geographical representation;
· 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 nonexpansion 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”.21
12. Is there any alternative to SC reform?
The Security Council reform should take place within the UN framework. Is it
conceivable to indicate alternative forums? The structures most often
considered are
not institutions in the proper sense, with a set of fully fledged
organs. They are political consultation groupings which meet once a
year (or more in the best of cases), although the intervening periods
are taken up with preparatory meetings, consultations and the work of
the sherpas. The most appropriate forums are the G8, G14 and G20.
The advantage of the G8 is that it includes countries which aspire (or
were aspiring) to become permanent SC members, such as Germany, Japan
and Italy. The G8, born as an economic coalition, has become a
political body and has been enlarged to include the Russian
Federation, transforming the former G7 into the G8.
Unlike the G8, the G14 includes emerging economies. It is an enlarged
G8 (G8 plus),
since it also encompasses Brazil, China, India, Mexico, South Africa
and Egypt. Its
comparative advantage with respect to the G8 is that China is a G14
member, meaning that it includes all of the permanent members of the
Security Council.
However it seems that G14 vision did not materialize or, at least, was
not a vital idea.
The G20 is more representative than the above two groupings, since it
encompasses
countries like Indonesia and Turkey. The EU too is member. However, the G20 is
merely an economic forum even though African, Asian and Latin America
partners are pressing for turning it in a political forum.
Thus, only the G8 is a political forum and it remains to be seen
whether it can be
enlarged to new partners. The idea to transform it in G14 is no more viable.
Be that as it may, the problem with groupings is that they may act as
a temporary
directorium in laying down principles. However, they are not suitable
for managing daily business and meeting to cope with extraordinary
situations requiring rapid decisions. In addition, they cannot be
empowered with the task of making deliberations that States
be possible to ask non-member States to implement decisions made by
this group if
there is no formal treaty obliging them to do so?
The UN is a system where the SC interacts with the GA or vice-versa, even if
imperfectly. The GA represents all States belonging to the
international community.
The UN has a Court – the International Court of Justice – to which
States may apply to solve their disputes and to which the main UN
organs may apply for legal opinions on important questions.
The UN’s popularity depends on many factors: the personality of its
SG, its members’
respect for the principles enshrined in the Charter and – last but not
the least – the
mood of the US administration. Thus far, nobody has found a real
substitute and a
viable alternative to the United Nations. Informal structures, for
instance the G 20, may be conceived not as a substitute for the SC
reform, but only as problem solving bodies.
They have the comparative advantage to set the political agenda, a
task that usually is not carried out by the UN.
13. Conclusion
There is no need to dwell any further on the necessity of a SC reform. A broad
consensus exists on the issue. The major criticism on the current
composition of the
SC is not so much its lack of efficiency as the deficit of its
representation and an
indefinite stalemate risks of de-legitimizing the SC. The real problem
is the scope and
the content of the reform. A further point is how that reform might be achieved.
It seems that the majority of UN members share the opinion that the SC should be
enlarged. This opinion is also gaining currency within the P5, in
spite of their fear that
an enlarged SC might diminish their role. A better representation of
the international
community is requested for other forums such as the G8 and its expansion towards
G14 and G20. This is a trend that should not be overlooked.
As to the number of non-permanent seats, opinions vary. However, a SC made up of
20 members (permanent and non-permanent) seems a realistic expectation
There are still differences of opinion on the duration of
non-permanent seats and
whether the reform should be for an intermediate span of time. There
is no consensus either on the category of the new seats (permanent
and/or non-permanent).
The increase in the number of seats may be achieved only by triggering the
amendment procedure, as the 1963 precedent shows. This makes it
difficult to propose a change in the composition of the SC that is
valid only for a fixed period of time. It would mean reopening
Pandora’s box.
The right of veto is a contentious item. The only stumbling block is
that the right of veto now held by the P5 is not up for discussion.
Nobody can conceive of this right being eliminated. On this point the
Charter cannot be amended, since the amendment abolishing the right of
veto for all or part of the P5 must also be ratified by the veto
holders. The point here is whether there will be any new SC members
endowed with the right of veto. The discussion goes hand in hand with
the question of new permanent seats, since the right of veto should be
given only to the new permanent seat-holders. Nobody has proposed the
right of veto for non-permanent members!
The changes outlined above require the amendment procedure to be set in motion.
The work of the UN may be improved in other respects without changing
the Charter.
This is true, first of all, of improving the SC’s working methods and
making them more transparent. The Charter allows the SC to adopt (and
change) its rules of procedure (Article 30) and to establish
subsidiary bodies (Article 29).
The exercise of the right of veto cannot be limited without amending
the Charter.
However, it may be politically limited, since a Resolution is the
result of a negotiating
process and the veto may become a permanent member’s last resort when its vital
interests are at stake.
Limiting the SC’s powers? The current trend is to increase them, as
shown by the SC
legislative Resolution. A more representative SC would avert any
criticism of its
exercising powers not conferred by the Charter. The SC would be made
more effective in coping with current threats such as terrorism and
nuclear proliferation.
Relations with the General Assembly might be improved by making the annual and
special reports submitted by the Security Council, as envisaged by
Arts 15 and 24.3 of the Charter, more analytical. But it is difficult
to see a change in the delicate balance between the General Assembly
and the Security Council as set out in Chapter IV of the Charter,
unless we wished to undermine the Security Council’s powers and
effectiveness. The United Nations are not a constitutional superpower
with a parliament (the General Assembly) and a government (the
Security Council) accountable to the
parliament. Like other international Organisations, the UN were
structured to function
(for vital issues) around an executive body whose composition is
inevitably narrower
that the one representing all members of the international community.
Updated: 12 July 2010
Anne
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