October 2022 Monthly Forecast

Posted 2 October 2022
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In Hindsight: The Long and Winding Road to Security Council Reform 

The current war in Ukraine, which has shown the impotence of the UN Security Council when one of its permanent members goes to war in violation of the UN Charter, has brought renewed energy to the debate over reforming the Council. Security Council reform has been an ongoing topic of discussion in the UN General Assembly since the early post-Cold War period, with reform pressures tending to intensify in response to an international crisis that exposes the structural weaknesses of the Security Council.   

The new momentum for changing the status quo took off on 27 February, when the Security Council referred the situation in Ukraine to the General Assembly following its own failure to adopt a draft resolution deploring Russia’s aggression against Ukraine. This was the Security Council’s first use of a “Uniting for Peace” resolution in 40 years. Two months later, through an initiative led by Liechtenstein, the General Assembly decided by consensus (A/RES/76/262, adopted on 26 April) that it would meet whenever a veto is cast in the Security Council. It has now convened twice in accordance with this new procedure: following vetoes by China and Russia on the Democratic People’s Republic of Korea in May, and after a Russian veto on Syria in July.   

Security Council Reform: What Does It Mean, What Would It Require? 

“Security Council reform” most often refers to expanding the 15-member Council, including both its permanent and elected members, and regulating the use of the veto. These thorny questions have resulted in a variety of reform initiatives during the past several decades; none has succeeded since 1965 when the Security Council was expanded from 11 to 15 members.  

On 21 September, US President Joe Biden told the UN General Assembly that the US backed an increase in the number of both permanent and non-permanent members of the Council, saying that the UN needed to “become more inclusive so that it can better respond to the needs of today’s world”. He specified that this included seats for nations the US has long supported and for countries in Africa, and Latin America and the Caribbean. He also committed the US to not using the veto except in” rare, extraordinary situations”, to ensure that the Council remains credible and effective.  

There have long been calls for a more representative Security Council, and there appears to be some agreement among member states that reform would make the Council, if not more effective, at least more representative in a manner enhancing its legitimacy. However, the path to reform is fraught with procedural and political challenges.  

Procedurally, expanding the Council will mean amending the UN Charter, which according to its Article 108, requires approval by two-thirds of the members of the General Assembly followed by ratification by two-thirds of UN members’ legislatures, including the legislatures of all five permanent members of the Security Council. Any change in Security Council membership would require revising Articles 23 and 27.  

The Security Council’s structure has only been changed once in its 77-year history. General Assembly resolution 1991-XVIII (1963) amended the Charter to expand the Council’s non-permanent members from six to ten. China (the seat was then held by Taiwan) was the only permanent member voting in favour. France and the USSR voted against, while the US and UK abstained. The expansion took effect in 1965 following the required ratifications.  

Intergovernmental Negotiations 

The longstanding vehicle for Council reform discussions is the IGN—the intergovernmental negotiations established in 2008 through the General Assembly’s Decision 62/557, and which first met on 19 February 2009. It has been renewed annually since then. (The IGN followed an Open-ended Working Group created in 1993 to discuss increasing membership of the Security Council and other issues.) The 2008 decision outlined five main issues for reform: categories of membership to the Council, the question of the veto, regional representation, the size of an enlarged Council and working methods, and the relationship between the Council and the General Assembly.  

In 2022, the co-chairs of the IGN during the 76th session of the General Assembly, Denmark and Qatar, convened five informal meetings covering all five clusters of issues—and, for the first time, convened what they termed “un-formal” conversations as well as oral reflections following the substantive discussions in an attempt to find greater common ground.  

Within the IGN process, a number of groups represent different positions on the reform of the Security Council, including the African Group, the Arab Group, Benelux, CARICOM, the Group of 4, the L69 Group, the Nordic Group, and the Uniting for Consensus Group. Notwithstanding broad agreement on the need for Council enlargement among member states, there is no consensus among members on the way ahead. During the 76th session, the Ukraine invasion and veto initiative appear to have energised the IGN on some issues of substance, particularly related to the use of the veto, However, the co-chairs’ elements paper on convergences and divergences illustrates that many issues remain to be considered in the session ahead, which began on 13 September 2022.  

Absent Council expansion, one proposal that has been considered is to give elected members terms longer than the current two years, and allow consecutive terms, which the Charter currently does not permit. But this, too, would require a formal Charter amendment.  

Given these obstacles, the path to reform may be neither smooth nor swift. In the interim, there has also been discussion over “reform-ish” procedural actions or working methods that do not require Charter amendments. February’s revival of Uniting for Peace, and the General Assembly decision in April that its own engagement will be triggered by a veto, would both fall into this category.  

Non-Amendment Avenues for Reform 

Another area of enquiry for the reform-minded, requiring no Charter amendment, is re-examining those of its articles that appear neglected or underused. This could include articles 27(3), 34, 94, and 99. Article 27(3), on obligatory abstention, states that in Council decisions under Chapter VI (Pacific Settlement of Disputes), a party to the dispute shall abstain from voting. A Council member last used it as a reason to refrain from voting in 1960; only one Council member has alluded to this rule in connection with Russia continuing to cast its vote on matters concerning its invasion of Ukraine.  

Article 34 of the Charter, found under Chapter VI, empowers the Council to investigate any dispute or any situation “which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security”. Under this article, the Council can request the Secretary-General or another body to carry out an investigation or fact-finding mission—or do so itself.   

Article 94 allows for any party to refer the matter to the Council when a party to an International Court of Justice (ICJ) case fails to comply with a judgment. In this regard, on 26 February, Ukraine instituted proceedings against Russia before the ICJ, which had rendered provisional measures on 16 March, ordering Russia to immediately suspend the military operations it commenced on 24 February in Ukrainian territory, among other matters. 

Seeking to revive or expand the use of any of these articles in the context of Ukraine faces particular challenges, both politically and procedurally. However, most reformists acknowledge that their efforts are intended to reinforce the UN Charter, not tailored to resolving a Ukraine-type situation. 

Article 99 allows the Secretary-General to bring to the Council’s attention any issue which he thinks may threaten the maintenance of international peace and security. Few Secretaries-General have invoked Article 99 explicitly, nor need they do so; the article gives them an open door to engage the Council on a broad range of threats.  

Beyond the use of Charter articles, some members appear interested in expanding the comparatively limited contact between the Security Council and the General Assembly. The General Assembly’s recent veto initiative is one way for member states as a group to seek to hold the Security Council accountable for its actions. Another is member states’ engagement in discussion with the Security Council over its annual report to the General Assembly.   

While the voices for Security Council reform may be growing louder, any agreement in the short term still seems fraught, perhaps no more so than among the permanent members of the Security Council during a time of extremely tense relations. But reform advocates are conscious of parallel initiatives that could serve to strengthen the Council’s resolve, including proposals featured in the Secretary-General’s report on “Our Common Agenda”. This report touches upon member states’ desire for a more representative Security Council through enlargement. The Summit of the Future, envisioned for 2024, may also add political momentum to advancing the matter of representation. 

 

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