Elected Members of the Security Council: Lame Ducks or Key Players? 2019955964, 9789004425378, 9789004425392

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Elected Members of the Security Council: Lame Ducks or Key Players?

Nijhoff Law Specials Volume 99

The titles published in this series are listed at brill.com/nlsp

Elected Members of the Security Council: Lame Ducks or Key Players? Edited by

Nico Schrijver and Niels Blokker

leiden | boston

The Library of Congress Cataloging-in-Publication Data is available online at http://catalog.loc.gov LC record available at http://lccn.loc.gov/2019955964

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. isbn 978-90-04-42537-8 (paperback) isbn 978-90-04-42539-2 (e-book) Copyright 2020 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. Koninklijke Brill NV reserves the right to protect the publication against unauthorized use and to authorize dissemination by means of offprints, legitimate photocopies, microform editions, reprints, translations, and secondary information sources, such as abstracting and indexing services including databases. Requests for commercial re-use, use of parts of the publication, and/or translations must be addressed to Koninklijke Brill NV. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Foreword  ix Stef Blok Acknowledgments  x i List of Abbreviations  xii 1 Introduction  1 Niels Blokker, Nico Schrijver and Sarah Mead

Part I Elected Members: Law and Practice 2

Non-permanent Members of the Security Council: A Charter Perspective  13 Stephen Mathias and Keiichiro Okimoto

3

Elected Members Today: Overcoming the Handicaps  42 Ian Martin

4

Campaigning for an Elected Seat in the UN Security Council  56 Ann-Marie Ekengren and Ulrika Möller

5

More Non-Permanent Members? On the Need for a Second Enlargement of the Security Council  71 Niels Blokker

Part II Elected Members: Inside and Outside Experiences 6

Pursuing Peace and Justice on the Security Council: The Canadian Experience  85 Alistair Edgar

7

The Role of Elected Members on the UN Security Council: The New Zealand Experience 2015-16  99 Gerard van Bohemen

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contents

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The Dutch Approach of Promoting the International Rule of Law and Constructive Multilateralism on the Security Council  111 Nico Schrijver

9

Belgium in the UN Security Council: Responsibility Without Power?  133 Jan Wouters and Nina Pineau

10 Representing the European Union at the United Nations: The Security Council Dimension  153 Thomas Mayr-Harting 11 Serving on the Security Council: More Like Playing Poker than Like Chess  176 Peter Wilson

Part III Niches for Elected Members 12 What Kind of Rule of Law Should Elected Members Promote?  183 Alejandro Rodiles 13 Elected Members and Agenda-Setting: The Security Council as Peace Broker  197 Daniëlla Dam-de Jong 14 Managing the Ebb and Flow of Sanctions Reform: An Important Role for Non-Permanent Members  217 Jeremy Farrall and Christopher Michaelsen 15 The Office of the Ombudsperson and the Elected Members of the Security Council  237 Kimberly Prost 16 Environmental Peacebuilding and the UN Security Council  248 Amanda Kron 17 Non-Permanent Members of the Security Council and International Criminal Justice: A Proposal for Revitalization  267 Giuseppe Nesi

contents

18 Working from the Outside to Change the Working Methods of the Security Council: Elected Members as a Bridge between the Permanent Members and the Rest of the UN Membership  279 Christian Wenaweser About the Contributors  285 Table of Treaties  292 Table of Resolutions  293 Presidential Notes and Statements  295 Case Law  296 Index  297

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Foreword The Kingdom of the Netherlands’ year on the Security Council taught us that the role of the Elected 10 (E10) is limited but meaningful. If nothing else, we can say that without the E10, nothing gets done. But the full picture is much more positive: even in the space of one year, we were able to advance our own initiatives on prevention, accountability and peacekeeping, and we contributed to proposals by others. Our own initiatives included the decisions we drafted on Afghanistan (Resolution 2405 of 8 March 2018), conflict and hunger (Resolution 2417 of 24 May 2018), the listing of human traffickers in Libya for the enforcement of UN sanctions (7 June 2018), peacekeeping (Presidential Statement of 14 May 2018) and police, justice and corrections (Resolution 2447 of 13 December 2018). We hope these will remain useful instruments for the Council. We also spoke out on a number of country situations. I recall in particular a plea for cooperation in the Syrian peace process and adherence to international norms. We also stressed the need to establish truth and accountability on the downing of MH17 in line with UN Security Council Resolution 2166, to secure justice for the victims and next of kin. In addition we oversaw the quality and independence of two organs reporting to the Security Council (on Iran and the Democratic People’s Republic of Korea), and we contributed to the character of several debates by opting for specific themes and briefers, often women. The Netherlands, too, benefitted from its time on the Security Council. It was an excellent opportunity to calibrate our policies and improve our information position. In addition we deepened our ties with the other members. We now intend to further our policies and initiatives through other avenues and in other forums. We also consulted with incoming members to draw their attention to the value of following up on some shared priorities. In the Council we worked constructively with all members. Do the countries of the E10 always share the same interests as the Netherlands? No. When it comes to matters of substance, the Netherlands has more in common with three of the Permanent five (P5) (France, the UK and the US) then it does with many of the E10. Still, the ongoing review of the working methods should be guided by the E10’s interest in procedural guarantees and practical arrangements, so as to further the overall work of the Council. In this regard we owe a lot to Japan’s efforts over the years. It is up to each of the E10 to be prepared and to do the diplomatic handiwork within the confines of their competences.

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Foreword

The present collection of facts, thoughts, experiences, analyses and proposals in relation to the role of non-permanent members of the Security Council is a valuable distillation of a dynamic seminar held at Leiden University. The seminar itself, and particularly the input of former elected members about their own experiences, helped us prepare for our membership in 2018. I am grateful to the authors for preserving all the contributions for the benefit of politicians, diplomats, academics and students. This highly relevant book on the role of the Security Council’s elected members deserves to be in the toolbox provided to all incoming members of the E10. Ideally, it should also be studied by the P5, aka the Non-Elected Five. Stef Blok Minister of Foreign Affairs of the Netherlands

Acknowledgments This book is the joint effort of many people. We are grateful to the authors who have contributed chapters to this book: both those who participated in the seminar of 11 and 12 May 2017 and subsequently transformed their presentations into written manuscripts, and those who joined the project later. The authors—who include former country representatives, UN officials, and scholars—together make this book a valuable reflection of the role of elected members on the Council. The book would not have been possible without generous grants from the Royal Netherlands Academy of Arts and Sciences, the Netherlands Ministry of Foreign Affairs and the Leiden Law School. We are grateful for assistance from the Task Force for the Kingdom of the Netherlands 2018 Security Council membership, especially Marriët Schuurman, Peter van der Vliet and Paul Peters. We also thank the Minister of Foreign Affairs of the Netherlands, Stef Blok, for kindly agreeing to write the foreword for this book. We appreciate having had the opportunity to hold the seminar at the premises of the Senate of the Dutch House of Parliament, where we were welcomed by its Speaker Ankie Broekers-Knol, and at the Academy Building of Leiden University. Finally, we thank all those who have assisted in the preparation of the seminar and this book from the Grotius Centre for International Legal Studies at Leiden University, including Hilde Roskam-Dam, Sophie Starrenburg, Cale Davis and Nathalie Walstra. We also thank Gerard van der Klein and Sarah Mead for their research and editorial assistance. The Editors, Nico Schrijver and Niels Blokker

List of Abbreviations ACT AMISOM AU CFSP CSCE CSDP CTBTO CTC CTED DPRK DRC E10 ECJ ECOSOC EEAS EFTA EU EUFOR EUNAVFOR FAO FATF GCTF HLR IAEA IBRD ICAO ICC ICJ ICRC ICTR ICTY IDA IFAD IFC ILO IMF IMO

Accountability, Coherency and Transparency Group African Union Mission in Somalia African Union Common Foreign and Security Policy Conference on Security and Cooperation in Europe Common Security and Defence Policy Comprehensive Nuclear-Test Ban Treaty Organization Counter-Terrorism Committee Counter-Terrorism Executive Directorate Democratic People’s Republic of Korea Democratic Republic of the Congo Elected Ten European Court of Justice The Economic and Social Council European External Action Service European Free Trade Association European Union European Union Force European Union Naval Force Operation Food and Agriculture Organization Financial Action Task Force Global Counterterrorism Forum High Level Review International Atomic Energy Agency International Bank for Reconstruction and Development International Civil Aviation Organization International Criminal Court International Court of Justice International Committee of the Red Cross International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia International Development Association International Fund for Agricultural Development International Finance Corporation International Labour Organization International Monetary Fund International Maritime Organization

List of abbreviations

IOM IPU IRENA ISIL, ISIS ISSG ITU IWGIT JCPOA MONUC MONUSCO NAM NATO NGO NPM ODA OPCW OSCE P3 P5 PBC PRoP PSC PSI R2P RUF S5 SC SDGs SIDS TEU TFEU UK UN UNAMI UNAMIR UNCIO UNESCO

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International Organization for Migration Universal Postal Union International Renewable Energy Agency Islamic State of Iraq and the Levant, also known as the Islamic State of Iraq and Syria International Syria Support Group International Telecommunication Union Informal Working Group on International Tribunals Joint Comprehensive Plan of Action United Nations Mission in the Democratic Republic of Congo United Nations Organization Stabilization Mission in the Democratic Republic of the Congo Non-Aligned Movement North Atlantic Treaty Organization Non-Governmental Organization Non-Permanent Member Official Development Assistance Organization for the Prohibition of Chemical Weapons Organization for Security and Cooperation in Europe Permanent three—United States, United Kingdom and France Permanent five Peacebuilding Commission Provisional Rules of Procedure of the Security Council Political and Security Committee Proliferation Security Initiative Responsibility to Protect Revolutionary United Front Small Five Security Council Sustainable Development Goals Small Island Developing States Treaty on European Union Treaty on the Functioning of the European Union United Kingdom United Nations United Nations Assistance Mission for Iraq United Nations Assistance Mission for Rwanda United Nations Conference on International Organization UN Education, Scientific and Cultural Organization

xiv UNFCCC UNGA UNICEF UNIDO UNITA UNPROFOR UNSC/SC UNTAC UNWTO US(A) USSR WEOG WHO WIPO WMO WTO

List of abbreviations

United Nations Framework Convention on Climate Change United Nations General Assembly United Nations Children’s Fund UN Industrial Development Organization National Union for the Total Independence of Angola United Nations Protection Force Security Council United Nations Transitional Authority in Cambodia UN World Tourism Organization United States (of America) Union of Soviet Socialist Republics Western European and Others group World Health Organization World Intellectual Property Organization World Meteorological Organization World Trade Organization

Chapter 1

Introduction Niels Blokker, Nico Schrijver and Sarah Mead Conventional wisdom has it that the successful functioning of the UN Security Council almost completely depends on the role played by the five permanent members (P5) and the extent to which they can agree—or rather, avoid to fundamentally disagree—on the many issues on the agenda of the Council.1 Prima facie, explanations for such a dominant role for the P5 seem clear. After all, the P5 include some of the most powerful UN member states and possess the power to veto any resolution before the Council. However, the Security Council also consists of ten elected members that serve a term of two years. They are called the E10, or non-permanent members. While unlike the P5, they are not vested with the right of veto, they play an indispensable role in Council decision-making. The Security Council for one can only take decisions if at least nine members vote in favour, with none of the P5 casting a veto. The votes of at least some of the E10 are therefore essential for Council decision-making. Moreover, the E10 represent five different regions of the world. Apart from an equitable geographical distribution, they are also elected in view of their con-

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See for example B. Fassbender, UN Security Council Reform and the Right of Veto: A Constitutional Perspective (1998), at 8, which notes: ‘The veto… is seen, and rightfully so, as the dominant structural feature of the present constitution of the UN’; J. Genser and B. Stagno Ugarte (eds.), The United Nations Security Council in the Age of Human Rights (2014), at 463-4, note in the conclusion: ‘Ultimately, the Security Council is a political body, in which the P5 retain a veto … whether the Council expands or becomes more representative of present-day realities, it will remain a political institution where the world’s most powerful states will have the ability to stop it from taking meaningful action’. See also ‘Transmittal letter dated 1 December 2004 from the Chair of the High-level Panel on Threats, Challenges and Change addressed to the Secretary-General’, UN Doc. A/59/565 (2004), which notes at para. 246: ‘Even outside the use of a formal veto, the ability of the five permanent members to keep critical issues of peace and security off the Security Council’s agenda has further undermined confidence in the body’s work’; and I. Tharoor, ‘The UN veto is a problem that won’t go away’ Washington Post, 2 October 2015, www. washingtonpost.com/news/worldviews/wp/2015/10/02/the-u-n-veto-is-a-problem-thatwont-go-away/?noredirect=on&utm_term=.e54e4cc8a2d3 referring to the Security Council’s ‘inability to do anything substantive about the conflict in Syria’ because of the use of the veto by Russia and China.

Schrijver and Blokker (eds.), Elected Members of the Security Council: Lame Ducks or Key Players? © 2020 Koninklijke Brill nv. isbn 978-90-04-42537-8. pp. 1-9. | DOI:10.1163/9789004425392_002

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tribution to the maintenance of international peace and security and the other purposes of the UN.2 This book aims to take a closer look at the role of the E10 as part of a broader inquiry into whether they are ‘lame ducks or key players’ on the Security Council. The book addresses whether, in terms of substance, the E10 are in an impotent position on the Council or whether they can contribute significantly to its work. While acknowledging that the E10 never form a homogeneous group, it is pertinent to identify and explore their joint strengths. The book considers what role for the E10 is foreseen in the UN Charter, and how this role evolved in practice. In terms of achieving their aims, it also asks what ‘tools’ the E10 can employ in the Security Council ‘toolbox’. Practice demonstrates that this toolbox contains a host of instruments, including establishing subsidiary organs (e.g., sanctions committees and ad hoc criminal tribunals), rotating presidencies, thematic debates, presidential statements, informal working groups, concept notes and non-papers. The experience of various E10 members will highlight how those tools have been used, and to what effect. The book also asks whether there any particular ‘niches’ for the E10 on the Security Council, such as engaging in conflict prevention, taking initiatives on rule of law issues and debating the potential effects of climate change on peace and security. Can the E10 serve as agents of the international community and norm entrepreneurs?3 And what is their perspective in terms of reform? Should their position be strengthened, for instance, by increasing their number or by extending the term of two years? Or is there room for strengthening their position by informal changes that do not require Charter amendment? Towards addressing these themes and questions, the book is divided into three parts. Part I explores the law and practice relating to elected members. On the one hand, the chapters point to the distinction between the P5 and the E10 in terms of power and influence as a result of the provisions in the UN Charter and Council practice. On the other hand, the chapters highlight the prized status of Council membership—as evidenced by the competitiveness of elections—and elected members’ role as key players in maintaining the legitimacy of the Council. To set the scene, Stephen Mathias and Keiichiro Okimoto provide a comprehensive analysis of the legal provisions in the UN Charter concerning non2 3

See 1945 Charter of the United Nations, 1 UNTS XVI, Art. 23. See M. Finnemore and K. Sikkink, ‘International Norm Dynamics and Political Change’ (1998) 52(4) International Organization 887, and C. Ingebritsen, ‘Norm Entrepreneurs: Scandinavia’s Role in World Politics’ (2002) 37(1) Journal of the Nordic International Studies Association 11.

introduction

3

permanent members of the Security Council. The chapter traces the origin of the concept of non-permanent members from the League of Nations to the present-day Charter. Article 23 of the Charter, which establishes the composition of the Security Council, ultimately maintains the distinction between permanent and non-permanent members as established by the Covenant of the League of Nations. The Charter does so, however, with less room for amendment. As a result, the number of members on the Council has only been changed once. The legal issues associated with amending the Charter, the election of non-permanent members and the role of the votes of non-permanent members in Council decision-making are addressed by the authors in depth. This overview points to the pragmatic approach adopted by legal counsel to ensure that the Council is not paralyzed by an overly rigid application of the Charter. The distinction between permanent and non-permanent members is, however, firmly ingrained in the fabric of the Charter with various legal consequences for the E10. The practice of the Security Council, as discussed by Ian Martin in chapter three, tends further to enhance the distinction between permanent and non-permanent members. Martin, a seasoned former UN official and former Executive Director of Security Council Report, points to various ‘handicaps’ affecting elected members on the Council. These include the brevity of the twoyear term, the burden of chairing sanctions committees and other subsidiary bodies, the increased weight of necessary Council business, and the working methods of the Council including the controversial penholder system. Despite these impediments, elected members have grown increasingly assertive. This leads Martin to conclude that ‘the quality and determination’ of the E10 still provides the most promise for incremental improvements in the Council’s performance. With a crisis of legitimacy within the Council arising from its ‘obviously anachronistic composition’ and the return of divisions within the P5, he considers that elected members play an increasingly critical role on the Council. Chapter four highlights trends in campaigns for non-permanent seats that confirm the perception, at least among states, that the E10 do have an important role to play on the Council. Such campaigns usually start long before a successful candidate takes its seat at the table of the Security Council, in some cases more than ten years. Drawing on the experience of Sweden’s successful campaign—which followed a string of ‘Nordic failures’—and to a lesser degree the campaigns of the Netherlands and Italy, Ann-Marie Ekengren and Ulrika Möller analyse what accounts for a successful effort for a non-permanent seat. The authors highlight campaign trends and the role of particular factors in the success, or failure, of campaigns. They observe an increase in competitiveness

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in turn ‘have reinforced a pattern in which economic resources are decisive, as it spurs on more intense, and thereby costlier, campaigns’. While this indicates that countries still consider a non-permanent seat to be worth the effort of being elected, the trend is of concern for a body already facing legitimacy concerns stemming from its unrepresentative nature. Despite the important role played by elected members, the need for reform—along with the seeming intractability of reform—is a frequently raised issue. To contextualize the call for reform, the final chapter in this Part by Niels Blokker provides a comparative perspective of the size of the Security Council vis-à-vis comparable bodies. Since its establishment, there has been a marked decrease in the representative nature of the Council: from 22% of the total UN membership in 1945, to 13% in 1963 (when agreement was reached to increase membership from 11 to 15), to less than 8% today. As a result, the Council in its current form is much less representative than other non-plenary organs of universal organizations. The ultimately unsuccessful proposals of the Highlevel Panel on Threats, Challenges and Change in 2004, would have made the body more representative. Whether this, or the other proposed changes, would have been sufficient to overcome the ‘handicaps’ raised in chapter three by Ian Martin is unclear. When it comes to reform, a balance is necessary: while more members would increase the representativeness of the Council, it is necessary to maintain the Council’s ability to effectively respond to security concerns. ‘“More representative” does not however necessarily amount to “less effective”’: a Council lacking legitimacy will not be effective in carrying out its mandate, which is the current risk.

∵

Part II explores whether elected members are ‘lame ducks or key players’ through the experiences of elected members inside the Security Council. Each chapter in this part highlights the impediments elected members face on the Council, indicating in particular a sense of frustration among those authors that have previously sat on the Council. However, the chapters also highlight how elected members can make a difference. A key question explored by the authors in this part is whether the effort required to obtain an elected seat is worth it, leading to the related question of whether elected members can make a difference on the Council given its inequitable structure and the resulting dominance of the P5. Reflecting on Canada’s prior experience on the Security Council, Alistair Edgar asks at the outset of chapter six whether a non-permanent seat on the

introduction

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Council for the 2021-22 term is ‘worth it’ for Canada. In its most recent term on the Council, Canada was able to make an impressive contribution. With a well-respected Permanent Representative who was supported by an ‘activist Foreign Minister’, Canada was able to progress its three-point agenda. Specifically, it managed to increase the transparency of the Council, strengthen the sanctions regime, and promote a human security dimension in the Council’s work. Therefore, despite the impediments faced as an elected member, Canada was able to make a mark on the work of the Council. As noted by Edgar, decisions of the Council require the affirmative vote of at least nine members: a seat gives non-permanent members a vote, and therefore a voice. While Gerard van Bohemen, former Permanent Representative of New Zealand, ultimately reaches a similar conclusion to that of Alistair Edgar, he focuses in more detail on the constraints associated with the Council’s operating methods. New Zealand, like Canada, was able to make a notable contribution to the work of the Council during its 2015-16 term. Achieving anything, however, took immense effort. The working methods and negotiating practices of the Council—which Van Bohemen considers have become less efficient since he served the New Zealand Mission 20 years prior—severely hamper the body’s effectiveness. To assist future elected members, he identifies some ‘key lessons’ based on New Zealand’s experience, including the importance of having a well-respected Permanent Representative, strong Ministerial support and a clear agenda. In chapter eight, Nico Schrijver addresses the Dutch experience. After reviewing some principal features of Dutch foreign policy, he discusses the Netherlands’ previous five terms on the Security Council. The chapter then examines in some detail the Netherlands’ most recent term during 2018, including its three priorities: common action to improve the functioning of peacekeeping operations; conflict prevention, with attention to the root causes including climate and access to water-related risks; and the strengthening of rule of law and accountability, including international criminal justice. By discussing how these priorities were tackled in practice, he draws up the balance of the Dutch memberships on the UN Security Council, in particular that of 2018. Belgium, meanwhile, is currently serving on the Council. While it is too early to tell how Belgium will fare during its 2019-20 term, Jan Wouters and Nina Pineau explore the country’s general approach and priorities by drawing on its five previous terms. Like the previous authors, they also ask what power states have as elected members on the Security Council, particularly small states like Belgium. Noting again the impediments, they conclude that expertise on priority areas, subsidiary bodies and the rotating presidency present opportunities to make important contributions to the Council’s work. Looking ahead, the authors identify three main themes for Belgium’s term: defence of human

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rights and protection of civilians; building sustainable peace; and partnering for sustainable development. External forces, including its role within the EU and Brexit, present specific challenges. In chapter ten, Thomas Mayr-Harting considers how the Lisbon Treaty and its subsequent implementation has impacted on how the EU is represented at the UN, and the implications of this for EU member states both inside and outside of the Council. The Lisbon Treaty provides that EU members ‘shall represent the Union’ at international organizations, and ‘concert and keep the other Member States and the High Representative fully informed’.4 It is incumbent on Security Council members that are also EU members to therefore balance two sets of obligations: their obligations to the Council and its members as an individual state party, and their obligations to the Union as an EU member state. Changes to the Provisional Rules of Procedure of the Security Council and a more active EU Delegation in New York have together eased the potential tension associated with this duality of roles. We are now therefore seeing a substantially increased role for the EU in respect of Security Council matters. Direct representation of the EU is not possible, but this new level of interaction by an intergovernmental body with the Council represents a new dynamic within the state-centric body. The final chapter in this part offers a P5 perspective of the role of non-permanent members: a view from the outside looking in. This chapter is based on an interview with Ambassador Peter Wilson on his experiences as Deputy Permanent Representative of the Mission of the UK to the UN from 2013-17. Departing from the more tempered view of the preceding authors, he considers that ‘it is absolutely possible to achieve things during one’s term’ as an elected member. In order to do so, he emphasizes the need to ‘stand for things’ and to negotiate as your country (as opposed to as a group). He also addresses topics of key concern to elected members. He describes the penholder system—a source of significant frustration for elected members—as ‘simply tradition’: if elected members wish to take the pen, there is nothing formally stopping them from doing so. As for the veto, he considers that ‘others having the veto is a bigger disadvantage than [the UK] having the veto is an advantage’. The overall view of the elected members’ experiences canvassed in this part is therefore that a seat on the Council is worth the effort, despite the inequalities built into the Security Council. It pays to note that the experiences shared in this part all relate to countries from the ‘Western Europe and Others Group’. With this comes more competitive campaigns and, generally speaking, more 4

2007 Consolidated version of the Treaty on European Union (TEU) 2008/C 115/13, Art. 34(2)[2].

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introduction

resources. Whether the experiences presented here also reflect those of states coming from other regional groupings, for instance the African Group which tend to observe a rotational system and comprise more low-income countries, would require further research.

∵

To further interrogate the role of elected members as ‘key players’ on the Security Council, the seven chapters of Part III focus on certain areas in which elected members have played a particularly prominent role, or made a significant contribution—despite those impediments already discussed. One such area is in the promotion of the international rule of law. Alejandro Rodiles, in chapter twelve, argues that elected members have played the ‘leading role’ in promoting the international rule of law within the Security Council, at times in opposition to the P5. He makes a distinction between a thick and thin conception of the rule of law—the former focussing on fostering the rule of law at the national level (for instance, through initiatives that protect women in armed conflict or restore the rule of law in post-conflict settings), and the latter focussing on the containment of power including at the international level. Elected members have been instrumental in promoting a thin conception of the rule of law, particularly in relation to the Security Council itself. Faced with a lack of power on the Council, they have pushed for ‘more transparency and objective predictability’, with various successes. Given the Council’s crisis of legitimacy, Rodiles argues that the efforts of the E10—for instance to strengthen the transparency of the sanctions regime—should be welcomed by the P5. Another means for elected members to substantively influence the Security Council’s agenda and future work is through thematic debates, which is the subject of Daniëlla Dam-de Jong’s chapter. With reference to two case studies, notably the protection of civilians in armed conflict (a theme introduced by Canada in 1999) and the role of natural resources in armed conflict (a theme introduced by Belgium in 2007), she makes an argument in favour of thematic debates as an effective format for elected members to influence the work of the Security Council in the long-term. With this in mind, she suggests future non-permanent members to engage the Council on a thematic debate on ‘the negotiation, implementation and enforcement of peace agreements’. Chapters fourteen and fifteen then discuss the important role played by elected members in sanctions reform. In chapter fourteen, Jeremy Farrall and Christopher Michaelsen discuss the development of the UN sanctions regime from ‘blunt’ to ‘targeted’ or ‘smart’ sanctions, and the role of elected mem-

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bers in this process. Elected members have, in short, consistently pushed for the creation of mechanisms, such as the Office of the Ombudsperson, to ensure the fair and transparent operation of UN sanctions regimes. In so doing, elected members have demonstrated their ability to ‘set and shape the reform agenda’. Gains made can, however, be easily undone: the authors point to the ‘ebb and flow’ of sanctions reform which endangers advances made by elected members. The other chapter on sanctions reform focuses specifically on the role of the Office of the Ombudsperson. The Office was established to counter criticism of the 1267 sanctions regime, which lacked due process requirements. Kimberly Prost, former Ombudsperson for the Security Council’s Al-Qaida and Taliban Sanctions Committee from 2010-15, details the reasons for establishing the Office and the process taken by the Ombudsperson in respect of complaints received. Drawing on her own experiences, Prost highlights the important contribution made by elected members at each juncture of the system’s development, in addition to the role played by elected members in the operation of the system itself. She credits the strength of the system to the perseverance and patience of elected members and calls on them to continue to prioritize and support the work of the Ombudsperson to ensure the gains made are retained. A lesser known area in which elected members have contributed to the work of the Security Council is in the environmental space. In chapter sixteen, Amanda Kron addresses the subject of environmental peacebuilding—an emerging field of international law and policy which seeks to better understand the role of natural resources and the environment in conflicts. Drawing on its responsibility for international peace and security, the Security Council has adopted a number of resolutions addressing natural resources, the environment and—more recently—climate change. Elected members have played a key role in championing these issues, such as New Zealand in relation to climate change. Whether it is appropriate for the Security Council to have a role in this regard has, however, raised pressing questions. For instance, while it is clear that climate change is already aggravating, and will continue to aggravate, security and conflict risks—what role should the Security Council have in addressing these concerns, given its unrepresentative composition? Giuseppe Nesi, in chapter seventeen, proposes a future role for elected members in respect of international criminal justice. Nesi documents the decline in the Security Council’s focus on international criminal justice, which has become something of a ‘taboo’ topic in recent times. He considers how the Informal Working Group on International Tribunals (IWGIT)—which was central to establishing the Residual Mechanism for Criminal Tribunals—might be used by elected members to revitalize international criminal justice in the

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introduction

work of the Security Council. Accordingly, he encourages elected members to push for a restructuring of the IWGIT with a broader mandate, or the establishment of a new ad hoc subsidiary organ of the Security Council with a specific mandate centering around international criminal justice. In the final chapter in Part III, Christian Wenaweser, Permanent Representative of Liechtenstein to the UN, highlights the important bridging role that elected members can play between the Security Council and the wider UN membership. With greater interactions and a sense of accountability to the general UN membership, along with strong relationships inside the Council— elected members have one foot each inside and outside of the Council. This makes them the ‘natural drivers for reform measures in the Security Council’. Indeed, elected members have been behind the efforts of the S5 (‘small five’) and the ‘ACT’ (accountability, coherence, transparency) group aimed at reforming the Council’s working methods towards greater transparency, inclusion and accountability. Wenaweser thus observes that a stronger role for elected members contributes to stronger efforts for greater openness and transparency within the Security Council. This is particularly so when the P5 relationships are so fractured, as they are at the moment.

∵

Most of the chapters in this book originated as contributions for a two-day seminar organized in May 2017 in Leiden and The Hague. As such, several of the chapters in this book were finalised around that time—while others were prepared at a later stage. One of the participants mentioned at the end of the seminar, in the ancient Academy Building of Leiden University, that this was ‘an academic meeting but not an academic debate’. Indeed, the discussions during the seminar were far from ivory tower conversations and greatly benefited from the active participation of practitioners, including senior permanent representatives at the UN. At the end of the seminar, the overall view seemed to prevail that the E10 may play a useful role in the Security Council. When the League of Nations was established, one of the proposals was for the League’s Council to be composed of Great Powers only. It was finally decided to reject this approach. This choice was also followed when, some 25 years later, the UN was created. Many examples in this book demonstrate the usefulness of having elected members on the Security Council. The ‘laws of power’ require that the most powerful members of the UN be represented on the Security Council, but it is also true that the ‘power of laws’ require that there should be non-permanent members as well, to give greater legitimacy to the work of the Council.

Part I Elected Members: Law and Practice

∵

Chapter 2

Non-permanent Members of the Security Council: A Charter Perspective Stephen Mathias and Keiichiro Okimoto* 1

Introduction

This chapter provides an analysis of the provisions in the Charter of the United Nations concerning non-permanent members of the Security Council and the practice and legal issues under those provisions. The maintenance of international peace and security being one of the most important purposes of the UN, and the Security Council being the principal organ which bears the primary responsibility for that purpose, membership in the Security Council has had considerable political importance for member states of the UN. Due to this political importance, much has been written on almost all aspects of the Security Council. As far as the legal aspects are concerned, there has been a vast amount of publications on the work of the Security Council on substantive issues, such as the use of force authorized by the Council and peacekeeping operations established by it, as well as some procedural issues, such as the ‘veto’ power of permanent members of the Council. However, it can be said that equal attention has not been paid to the legal issues related to non-permanent members of the Security Council. This chapter, therefore, provides an overview of the Charter provisions concerning non-permanent members of the Security Council and the legal issues that have arisen in connection with them. In doing so, this chapter will first trace the origin of the concept of non-permanent members by reviewing how non-permanent members were dealt with in the League of Nations and its Covenant. It then discusses the legal issues that have arisen with respect to the number of non-permanent members of the Security Council, the factors to be taken into account in electing non-permanent members, particularly the factor of equitable geographical distribution, the procedure for the election of

*

The views expressed herein are those of the authors and do not necessarily reflect the views of the United Nations.

Schrijver and Blokker (eds.), Elected Members of the Security Council: Lame Ducks or Key Players? © 2020 Koninklijke Brill nv. isbn 978-90-04-42537-8. pp. 13-41. | DOI:10.1163/9789004425392_003

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non-permanent members, and the role of the votes of non-permanent members in decision-making. 2

Council of the League of Nations

The Council of the League of Nations (‘the League Council’) was established by the Covenant of the League of Nations (‘the Covenant’), which formed part of the Treaty of Peace between the Allied and Associated Powers and Germany of 28 June 1919.1 The League Council was mandated to deal with ‘any matter within the sphere of action of the League or affecting the peace of the world’,2 including to make recommendations to settle disputes between members of the League of Nations3 and to recommend military measures in the event of a resort to war that was contrary to the Covenant.4 As far as the composition was concerned, Article 4, first paragraph, of the Covenant provided as follows: The Council shall consist of Representatives of the Principal Allied and Associated Powers, together with Representatives of four other Members of the League. These four Members of the League shall be selected by the Assembly from time to time in its discretion. Until the appointment of the Representatives of the four Members of the League first selected by the Assembly, Representatives of Belgium, Brazil, Spain and Greece shall be members of the Council. Pursuant to this paragraph, the Council was to be composed of nine members, in other words, the Principal Allied and Associated Powers (the British Empire, France, Italy, Japan, and the United States of America),5 which were later referred to as ‘permanent members’, and four other members to be selected by the Assembly of the League of Nations (‘the League Assembly’) from time to time, which were later referred to as ‘non-permanent members’. The Covenant, 1

2 3 4 5

Entered into force on 10 January 1920. See 1919 The Treaty of Peace Between the Allied and Associated Powers and Germany (Treaty of Versailles) 225 CTS 188, at 195. The text of the Covenant is also available at, League of Nations, Official Journal, February 1920 (1920), at 3; 13 AJIL Supp. 128 (1919). 1919 Covenant of the League of Nations, Art. 4. Ibid., Art. 15. Ibid., Art. 16. See the first preambular paragraph of the Treaty of Peace for the definition of the term ‘Principal Allied and Associated Powers’. See supra note 1.

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therefore, already envisaged the distinction between permanent members and non-permanent members. However, the Covenant authorized the League Assembly to add permanent and non-permanent members on the Council with the approval of the majority of the Assembly. Thus, Article 4, second paragraph, provided as follows: With the approval of the majority of the Assembly, the Council may name additional Members of the League whose Representatives shall always be members of the Council; the Council with like approval may increase the number of Members of the League to be selected by the Assembly for representation on the Council. This provision was applied on a number of occasions. As far as the permanent members were concerned, their number changed from time to time. From the outset, not all permanent members mentioned in Article 4 of the Covenant were serving on the League Council as the US did not become a party to the Treaty of Peace. The Assembly subsequently admitted Germany as a permanent member in 19266 and the Union of Soviet Socialist Republics (USSR) in 1934.7 However, Japan8 and Germany9 withdrew from the League of Nations in 1935, and Italy in 1939.10 The League Council further decided in 1939 that USSR was no longer a member of the League of Nations.11 Thus, the number of permanent members on the Council was initially four but increased to six with the admission of Germany and USSR. However, that number fell to two by December 1939 after Germany, Japan, Italy, and USSR left the League of Nations. The British Empire and France were the only permanent members that remained in the League Council.

6 7 8

9 10 11

Assembly Res. of 8 September 1926, League of Nations, Official Journal, Special Supplement No. 43 (1926), 29. Assembly Res. of 18 September 1934, League of Nations, Official Journal, Special Supplement No. 123 (1934), 18. Notification by the Japanese Government of its intention to withdraw from the League of Nations. League of Nations, Official Journal, May 1933 (1933), 657-8. Pursuant to Art. 1, third para., of the Covenant, the notification of withdrawal took effect after two years from the notification. Notification by the German Government of its intention to withdraw from the League of Nations. League of Nations, Official Journal, January 1934 (1934), 16. Notification by the Italian Government of its intention to withdraw from the League of Nations. League of Nations, Official Journal, January 1938 (1938), 10. Council Res. of 14 December 1939, League of Nations, Official Journal, November-December 1939 (1939), at 505-8.

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As far as non-permanent members were concerned, the Council initially had four non-permanent members pursuant to Article 4 of the Covenant. The Assembly subsequently increased the number of non-permanent members to six in 192212 and to nine in 1926.13 It further increased the number provisionally to ten in 1933 for the period up to 1936,14 and to 11 in 1936 for the period up to 1939.15 At the penultimate meeting held on 14 December 1939, the League Council decided that the number of non-permanent members should be kept at 11 until 1942.16 Thus, over the years, the number of non-permanent members in the League Council was increased from four to 11 by decisions of the League Assembly. Such increase did not require amendments to the Covenant. The League Assembly also laid down rules concerning, among other things, the term of office of the non-permanent members, their eligibility for re-election, and distribution of seats. This practice was formalized by an amendment to Article 4 of the Covenant adopted on 4 October 192117 which provided as follows: ‘The Assembly shall fix by a two-thirds majority the rules dealing with the election of the non-permanent Members of the Council, and particularly such regulations as relate to their term of office and the conditions of re-eligibility.’ In 1920, the Assembly initially decided that the term of office of the non-permanent members should be one year,18 which was extended to three years in 1926.19 The resolution adopted in 1926 also authorized the Assembly to decide that a member of the League Council may be eligible for re-election, upon request by the member concerned.20 As far as the distribution of the non-permanent seats was concerned, the Assembly, in 1920, initially recommended:

12

Assembly Res. of 25 September 1922, League of Nations, Official Journal, Special Supplement No. 9 (1922), at 14. 13 Assembly Res. of 8 September 1926, League of Nations Official Journal, Special Supplement No. 43 (1926), at 29. 14 Assembly Res. of 2 October 1933 and its decision of 9 October 1933, League of Nations, Official Journal, Special Supplement No. 114 (1933), at 10-11. 15 Assembly Res. of 1 October 1936 and its decision of 3 October 1936, League of Nations, Official Journal, Special Supplement No. 153 (1936), at 9-10. 16 Council Res. of 14 December 1939, League of Nations, Official Journal, November-December 1939 (1939), at 500. 17 1921 Protocol of an Amendment to Article 4 of the Covenant, 51 LNTS 362. 18 Assembly Res. of 11 December 1920, League of Nations, Official Journal, Special Supplement No. 5 (1921), at 10. 19 Assembly Res. of 15 September 1926, League of Nations, Official Journal, Special Supplement No. 43 (1926), at 9-10. 20 Ibid.

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… to vote for the four non-permanent Members of the Council to be selected by the Assembly so that three shall be selected from among the Members of the League in Europe and the two American continents, and one selected from among the Members in Asia and the remaining parts of the world.21 In 1922, the Assembly further recommended as follows: It is desirable that the Assembly, in electing the six non-permanent Members of the Council, should make its choice with due consideration for the main geographical divisions of the world, the great ethnical groups, the different religious traditions, the various types of civilisation and the chief sources of wealth.22 In practice, and particularly after the increase in the number of non-permanent members in 1926, Europe normally had two or three of its states on the League Council, including one from Scandinavia; Latin America normally three; Eastern Europe normally two; and Asia normally one. The other seats were occasionally occupied by an African or Middle Eastern state, or by Canada, Australia or New Zealand.23 The League of Nations, therefore, had a relatively flexible system with respect to the organization of the League Council. The Assembly could decide, by a simple majority, to increase the numbers of permanent and non-permanent members, and was not bound by the requirement of unanimity in Article 5 of the Covenant, or required to amend the Covenant. The Assembly could also decide on the rules concerning the term of office and other aspects of non-permanent members by a two-thirds majority. The Assembly, in practice, applied these powers on a number of occasions.

21 22 23

Assembly recommendation of 11 December 1920, League of Nations, Official Journal, Special Supplement No. 5 (1921), at 10. Assembly recommendation of 29 September 1922, League of Nations, Official Journal, Special Supplement No. 9 (1922), at 15. For example, when the League Council held its last meeting on 14 December 1939, the following member states were non-permanent members of the League Council: Bolivia, Belgium, China, Dominican Republic, Greece, Iran, New Zealand, Peru, Union of South Africa, Sweden, Yugoslavia. See League of Nations, Official Journal, November-December 1939 (1939), at 501.

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Drafting History of Article 23 of the Charter of the United Nations

The Dumbarton Oaks Conversations, which took place separately between the UK, US, and USSR and then between the UK, US, and China from August to October 1944, resulted in the ‘Dumbarton Oaks Proposals for a General International Organization’.24 These were used as a basis for the negotiations at the UN Conference on International Organization held from April to June 1945. Chapter VI, Section A, concerning the composition of the Security Council provided as follows: The Security Council should consist of one representative of each of eleven members of the Organization. Representatives of the United States of America, the United Kingdom of Great Britain and Northern Ireland, the Union of Soviet Socialist Republics, the Republic of China, and, in due course, France, should have permanent seats. The General Assembly should elect six states to fill the non-permanent seats. The six states should be elected for a term of two years, three retiring each year. They should not be immediately eligible for reelection. In the first election of non-permanent members three should be chosen by the General Assembly for one-year terms and three for two-year terms.25 A number of comments were submitted with respect to this proposal, including on the distinction between permanent and non-permanent members, number of non-permanent seats, factors to be taken into account in the election of non-permanent members, and the terms of office. One state proposed that the permanent and non-permanent seats should be replaced by ‘semipermanent members’ and ‘temporary members’ who would be elected by the General Assembly but with a longer term of office for the former category.26 On the other hand, many states did not challenge the distinction between permanent and non-permanent members, but proposed different numbers of

24 25 26

United Nations Information Organizations (UNIO), Documents of the United Nations Conference on International Organization (1945), Vol. III, at 1. Ibid., at 7. Mexico. See ibid., at 183-4.

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non-permanent seats,27 such as seven,28 nine,29 ten,30 and 13.31 Other states proposed criteria for the election of non-permanent members, namely the contribution of members towards the maintenance of peace and security and equitable geographical distribution.32 Some states proposed a specific number of seats for various regions,33 while others proposed that the geographical regions should be defined.34 One state proposed that members occupy the non-permanent seats in the alphabetical order of the members.35 One state went further to propose the following criteria: relative population, industrial and economic capacity, contribution in armed forces, facilities and assistance to the Security Council, and contribution during the Second World War.36 Furthermore, one state proposed that the term of office and eligibility for reelection should be decided by the General Assembly without an amendment to the Charter.37 Despite the variety of proposals made by states concerning non-permanent members of the Security Council, a number of them were withdrawn or were rejected in Committee 1 of Commission III of the UN Conference, which dealt with the structure and procedures of the Security Council.38 The rejected proposals included a proposal to group states into different regions for the purpose of distributing non-permanent seats.39 The only amendments that were approved by Committee 1 were those submitted by the four states that drew up the Dumbarton Oaks Proposals. Thus, Committee 1 approved, at its meeting held on 16 May 1945, the following text concerning non-permanent members of the Security Council (the amendments proposed by the four states are indicated in italics): 27

Chile, Colombia, Egypt, El Salvador, Iran, Iraq, Lebanon, Liberia, the Netherlands and Venezuela. See ibid., Vol. XI, at 252 and 253. Turkey, ibid., Vol. I, at 452. 28 Liberia. See ibid., Vol. I, at 449. 29 Egypt. See ibid., Vol. III, at 457. 30 Chile. See ibid., Vol. III, at 283. Turkey, ibid., at 482. Iran, ibid., at 555. 31 Ecuador. See ibid., Vol. III, at 406, 410 and 429. 32 China, UK, US, USSR. See ibid., Vol. III, at 623-4. Australia, ibid., at 550. Canada, ibid., at 589. Egypt, ibid., at 449. France, ibid., at 378 and 384. New Zealand, ibid., vol. XI, at 254. 33 Chile. See ibid., Vol. III, at 284. Dominican Republic, ibid., at 566. Ecuador, ibid., at 406. Egypt, ibid., at 457. Guatemala, ibid., at 255. Philippines, ibid., at 537. Venezuela, ibid., at 201-2. 34 See ibid., Vol. XI, at 270. 35 Liberia. See ibid., Vol. I, at 449. 36 India. See ibid., Vol. III, at 529-30. 37 New Zealand. See ibid., Vol. XI, at 254. 38 See ibid., Vol. XI, at 282, 289-292, and 298-9. 39 See ibid., Vol. XI, at 291.

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The General Assembly should elect six states to fill the non-permanent seats, due regard being specially paid in the first instance to the contribution of members of the Organization towards the maintenance of international peace and security and towards the other purposes of the Organization, and also to equitable geographical distribution.40 The approved text was transmitted to the Coordination Committee of the United Nations Conference. However, the secretariat of the Conference, in transmitting the approved text, revised the text and removed the references to ‘representatives’ in order to clarify that states, as opposed to representatives of states, were to be members of the Security Council.41 The Coordination Committee and the Advisory Committee of Jurists of the United Nations Conference reviewed the text and made further changes to the text, mostly of an editorial nature.42 However, at a meeting of the Coordination Committee on 15 June 1945, a question arose with respect to the amendments quoted above which were proposed by the four states. In particular, a question arose as to whether the phrase ‘in the first instance’ referred to the two criteria, or only the first criterion concerning the contribution of member states. The Coordination Committee took the view that ‘the phrase “in the first instance” governed only the first factor of contributions’.43 A comma was inserted after the phrase ‘specially paid’ to emphasize this point.44 The Coordination Committee, therefore, clarified that the criteria for the election of non-permanent members were to be taken into account in a particular order. In its view, due regard would first be paid to the contribution of member states towards the maintenance of international peace and security and the other purposes of the organization, and then to equitable geographical distribution. The final text on the composition of the Security Council contained in Article 23 of the Charter was as follows: 1. The Security Council shall consist of eleven Members of the United Nations. The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council. The General Assembly shall elect six other Members of the 40 See ibid., Vol. XVIII, at 10 (emphasis added). 41 See ibid., Vol. XVIII, at 23-4. 42 See ibid., Vol. XVIII, at 192-4; ibid., Vol. XVII, at 61. 43 See ibid., Vol. XVII, at 161. 44 Ibid.

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United Nations to be non-members of the Security Council, due regard being specially paid, in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to other purposes of the Organization, and also to equitable geographical distribution. 2. The non-permanent members of the Security Council shall be elected for a term of two years. In the first election of the non-permanent members, however, three shall be chosen for a term of one year. A retiring member shall not be eligible for immediate re-election. 3. Each member of the Security Council shall have one representative. The Charter, including Article 23, was adopted on 26 June 1945 and entered into force on 24 October 1945. Article 23 of the Charter, therefore, maintained some of the features of the League Council, such as the distinction between the permanent and non-permanent members and the small size of the organ. However, it also provided for a more rigid arrangement. The number and the terms of office of non-permanent members of the League Council could be changed by the League Assembly by a decision of the majority of the Assembly, without amendments to the Covenant. However, the number of non-permanent members and other arrangements concerning the Security Council can only be changed by amendments to the Charter. In accordance with Article 108 of the Charter, this must be adopted by two-thirds of the members of the General Assembly and ratified by two-thirds of those members, including the permanent members of the Security Council. 4

Number of the Non-Permanent Members in the Security Council

Under Article 23(1) of the Charter as originally adopted in 1945, there were six non-permanent members in the Security Council. Discontent that the number of non-permanent seats was not adequate in order for the various regions to be represented was expressed from very early on. At the first election of the nonpermanent members held in the General Assembly on 12 January 1946, China stated that ‘[t]here [were] other regions in the world which [were] not given non-permanent representation on the Security Council. The continent of Asia [was] one such region’.45 45

UN Doc. A/PV.5 (1946), at 88.

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This discontent grew over the years as membership of the UN grew. In 1945, there were 51 member states, of which 20 were Latin American and Caribbean states; 12 were Western European and other states; nine were Asian states; six were Eastern European states; and four were African states. By 1963, there were 113 member states, of which 36 were African states; 26 were Asian states; 21 were Latin American and Caribbean states; 20 were Western European and other states; and ten were Eastern European states. Against this background, a group of 44 member states, by a letter dated 16 September 1963, requested the inclusion of an item in the agenda of the General Assembly entitled ‘Question of equitable representation on the Security Council and the Economic and Social Council’.46 Upon recommendation of its General Committee, the General Assembly decided to include the item in its agenda and allocated it to the Special Political Committee.47 The meeting records of the Special Political Committee indicate that member states that were opposed to the enlargement of the non-permanent membership proposed that each of the six existing seats should be distributed to six regions, namely Africa, Asia, Eastern Europe, Western Europe, Latin America and the Middle East.48 On the other hand, most of the member states were in favour of increasing the number of non-permanent members and, in particular, allocating adequate number of seats to African and Asian states. However, their proposals varied. Latin American and Caribbean states submitted a draft resolution which would increase the number of non-permanent members from six to

46

47

48

UN Doc. A/5520 and Corr.1 (1963). Attempts to increase the number of non-permanent members were also made prior to 1964. At the eleventh session of the General Assembly (1956), the following item was included in the agenda of the General Assembly: ‘Question of amending the United Nations Charter, in accordance with the procedure laid down in Article 108 of the Charter, to increase the number of non-permanent members of the Security Council and the number of votes required for decisions of the Council’. Between the eleventh (1956) and fifteenth (1960) sessions, this item and several draft resolutions submitted under this item were discussed in the General Assembly or in the Special Political Committee, but no amendments were adopted by the General Assembly. For a summary, see United Nations, Repertory of Practice of United Nations Organs, Supplement No. 2, covering the practice with respect to Art. 23 for the period between 1955 and 1959, and Supplement No. 3 covering the period between 1959 and 1966. UN Doc. A/PV.1210 (1963), paras. 79 and 82. See also, UN Doc. A/5530 (1963), at 9 and 14, containing the report of the General Committee. The Special Political Committee and the Fourth (Trusteeship) Committee were subsequently merged by General Assembly decision 47/233 of 17 August 1993 and is now known as the Special Political and Decolonization Committee (Fourth Committee). See UN Doc. A/47/49, at 7. UN Doc. A/SPC/SR.423 (1963), para. 43; UN Doc. A/SPC/SR.428 (1963), paras. 12 and 62.

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eight.49 Another draft resolution which was sponsored by African states and some Asian states provided that the number of non-permanent members should be increased from six to ten.50 One member state initially proposed to double the number of the non-permanent seats.51 The number of additional non-permanent seats was intrinsically linked to the question whether the numbers of seats allocated to the various regions after the enlargement would be sufficiently proportionate to the numbers of member states in the respective regions. Many member states considered that increasing the number of such seats from six to eight would leave some regions without seats that would be sufficiently proportionate to the number of member states belonging to their regions.52 They, however, considered that increasing the number from six to ten would provide for a satisfactory distribution of seats amongst the various regions.53 The two groups of states that submitted the two draft resolutions mentioned above eventually supported a single draft resolution that would increase the number of non-permanent seats from six to ten.54 The Special Political Committee eventually approved this draft resolution by 96 votes to 11, with four abstentions.55 The draft resolution recommended by the Special Political Committee to the General Assembly included proposals to amend the Charter in accordance with Article 108 of the Charter, which provides as follows: Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council. Therefore, an absolute majority of two-thirds was required in order for the draft resolution to be adopted by the General Assembly. In other words, 76 49 50 51 52 53 54 55

UN Doc. A/SPC/L.104/Rev.1 (1963). Other member states also made the same proposal, such as the Netherlands (UN Doc. A/SPC/SR.420 (1963), para. 23) and the US (UN Doc. A/ SPC/SR.427 (1963), para. 18). UN Doc. A/SPC/L.109 (1963). UN Doc. A/SPC/SR.425 (1963), para. 17. UN Doc. A/SPC/SR.425 (1963), para. 19; UN Doc. A/SPC/SR.428 (1963), para. 6. UN Doc. A/SPC/SR.425 (1963), para. 20; UN Doc. A/SPC/SR.427 (1963), para. 23; UN Doc. A/ SPC/SR.428 (1963), para. 6. UN Doc. A/SPC/SR.429 (1963), paras. 16-19 and 22. Ibid., para. 47.

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votes in favour were required, as there were 113 member states when the General Assembly took action on the draft resolution. The General Assembly eventually adopted Resolution 1991 A (XVIII) on 17 December 1963 by 97 votes to 11, with four abstentions.56 By this Resolution, the General Assembly: Decide[d] to adopt, in accordance with Article 108 of the Charter of the United Nations, the following amendments to the Charter and to submit them for ratification by the States Members of the United Nations: (a) In Article 23, paragraph 1, the word ‘eleven’ in the first sentence shall be replaced by the word ‘fifteen’, and the word ‘six’ in the third sentence by the word ‘ten’. By the same resolution, the General Assembly decided to amend the second sentence of Article 23(2) to read as follows: ‘In the first election of the non-permanent members after the increase of the membership of the Security Council from eleven to fifteen, two of the four additional members shall be chosen for a term of one year’. It further amended Article 27(2) and (3) concerning the number of votes required for taking decisions in the Security Council, and replaced the word ‘seven’ with the word ‘nine’. The resolution then ‘[c]all[ed] upon all Member States to ratify the above amendments, in accordance with their respective constitutional processes, by 1 September 1965’. While the US was the depositary of the Charter, upon consultation with the US, the Secretary-General of the United Nations considered that it might be appropriate for him to undertake the depositary functions as concerns the instruments in respect of the amendments to the Charter.57 The Secretary-General, therefore, received instruments of ratification from member states with respect to these amendments.58 Article 108 of the Charter does not specify whether the two-thirds should be calculated on the basis of the number of member states at the time of the adoption of Resolution 1991 A (XVIII), or on the basis of the latest number of member states. In the former case, ratification by 76 member states would 56 57 58

UN Doc. A/PV.1285 (1963), para. 164. United Nations Office of Legal Affairs, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties (1999), para. 25. See, for example, the depositary notification dated 27 September 1965 (C.N.148.1965. TREATIES-17) by which the Legal Counsel of the United Nations, on behalf of the Secretary-General, notified the ratification of the 1963 amendments to the Charter by six member states and the entry into force of the amendments on 31 August 1965.

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have met the requirement since there were 113 member states at the time of adoption of the resolution. However, the Secretary-General adopted the latter approach and referred to 114, the number of member states on the date which all the requirements for the entry into force of the amendments in Article 108 were met. Therefore, ratification by 76 member states was required for the entry into force of the amendments.59 In this particular instance, the number of ratifications required for the entry into force of the amendment was the same, regardless of the approach taken by the depositary to calculate the two-thirds. However, additional instruments of ratification would have been required if the number of member states had increased to 115 or more. In practice, by 4 June 1965, 76 member states had ratified the amendments. However, since only two permanent members of the Security Council had ratified the amendments by then, the requirement that all the permanent members ratify the amendments had not been met. This requirement was met on 31 August 1965 when the fifth permanent member ratified the amendments. The amendments, therefore, entered into force on 31 August 1965 for all member states.60 As a result of the entry into force of the amendments, amendments to other relevant rules were made. The General Assembly, by its Resolution 2046 A and B (XX) of 8 December 1965, amended the relevant parts of the Rules of Procedure of the General Assembly, including Rule 142 which now provides that ‘[t]he General Assembly shall each year… elect five non-permanent members’ instead of ‘three non-permanent members’.61 The Secretary-General subsequently pointed out that there was a discrepancy between Articles 23 and 27 of the Charter, as amended, and Article 109.62 The relevant part of Article 109(1) provided that: A General Conference of the Members of the United Nations for the purpose of reviewing the present Charter may be held at a date and place to

59 60 61

62

Protocol of Entry Into Force of 31 August 1965 of the Amendments to Arts. 23, 27 and 61 of the Charter of the United Nations Adopted by the General Assembly Resolutions 1991 A and B (XVIII) of 17 December 1963, 557 UNTS 144, at 152. Ibid., and depositary notification dated 27 September 1965 (C.N.148.1965.TREATIES-17). Res. 2046 B (XX) states that Rule 143 was amended since the rule concerning the election of non-permanent members was, at the time, contained in Rule 143. See UN Doc. A/ RES/2046 B (XX) (1965). As at 1 July 2017, the latest text of the Rules of Procedure of the General Assembly is contained in UN Doc. A/520/Rev.18 (2017). UN Doc. A/5974 (1965).

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be fixed by a two-thirds vote of the members of the General Assembly and a vote of any seven members of the Security Council.63 The Secretary-General, therefore, proposed that the word ‘seven’ be replaced by the word ‘nine’.64 Article 109(3) further provided that: If such a conference has not been held before the tenth annual session of the General Assembly following the coming into force of the present Charter, the proposal to call such a conference shall be placed on the agenda of that session of the General Assembly, and the conference shall be held if so decided by a majority vote of the members of the General Assembly and by a vote of any seven members of the Security Council.65 The Secretary-General noted that, since the General Assembly had already decided, by its Resolution 992 (X) of 21 November 1955, to hold a General Conference to review the Charter, Article 109(3) could be considered as obsolete but should be maintained for historical reasons.66 The Legal Committee (Sixth Committee) of the General Assembly recommended to the Assembly a draft resolution which would adopt, in accordance with Article 108 of the Charter, an amendment to replace the word ‘seven’ in the first sentence of Article 109(1) with the word ‘nine’.67 This was then adopted by the General Assembly by consensus on 20 December 1965 as Resolution 2101 (XX).68 The amendment entered into force on 12 June 1968 for all member states, upon ratification by two-thirds of the members of the UN, including all the permanent members of the Security Council.69 The entry into force of the amendments that increased the number of nonpermanent members prompted the question whether the Security Council would be legally constituted during the period between the entry into force of the amendments (31 August 1965) and the beginning of the term of office of 63 64 65 66 67 68 69

Emphasis added. Ibid., at 2 and 4. Emphasis added. UN Doc. A/6180 (1965), paras. 9 and 12. Ibid., para. 15. UN Doc. A/PV.1404 (1965), para. 123. Protocol of Entry Into Force of the Amendment to Art. 109 of the Charter of the United Nations Adopted by the General Assembly in Resolution 2101 (XX) of 20 December 1965, 638 UNTS 308. See also, depositary notification dated 28 June 1968 (C.N.88.1968.TREATIES-5).

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the additional non-permanent members (1 January 1966). During this period, there would be fewer members on the Security Council than the number prescribed in Article 23(1) as amended. In this instance, the Office of Legal Affairs of the Secretariat of the United Nations issued an opinion on the matter.70 It first referred to Article 23(2) as amended, which made provision of ‘the first election of the non-permanent members after the increase of the membership of the Security Council’, thereby implying that there would be an intervening period between the entry into force of the amendment and the election of the additional members. The opinion further referred to Article 28(1) of the Charter which provided that ‘[t]he Security Council shall be so organized as to be able to function continuously’ and stated that ‘[a]n interpretation tending to so extreme a consequence as a break in the functioning of [the Security Council] could not be accepted without clear support in the text itself or in the reports of the General Assembly’. The opinion concluded that ‘the time-lag between the amendment’s coming into force and the elections will not render [the Security Council] incapable of performing their functions’. In practice, during the period in question, the Security Council held 34 meetings,71 adopted 11 resolutions72 and took other decisions.73 However, there is no indication in the official records of the Security Council that the Council was not legally constituted and that its decisions were without effect. 5

Factors to be Taken into Account for the Election of Non‑Permanent Members

Article 23(1) of the Charter sets out two factors to be taken into account in electing non-permanent members: (1) the contribution of members of the UN to the maintenance of international peace and security and to other purposes of the organization; and (2) equitable geographical distribution. As noted above, during the drafting of the Charter, it was understood that the phrase ‘in the first instance’ before the first factor indicated that it would be taken into account first, before the second factor concerning equitable geographical dis70 71 72 73

United Nations, United Nations Juridical Yearbook (1965), at 224-5. 1237th meeting held on 4 September 1965 to 1270th meeting held on 17 December 1965. See UN Docs. S/PV.1237 (1965) to S/PV.1270 (1965). Security Council Res. 209 (1965) of 4 September 1965 to 219 (1965) of 17 December 1965. See UN Docs. S/RES/209 (1965) to S/RES/219 (1965). See UN Doc. S/INF/20/Rev.1 (1965) for the other decisions taken by the Security Council during the period in question.

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tribution.74 However, in practice, the first factor has not been emphasized as much as the second. Occasionally, member states which expressed their willingness to serve on the Security Council emphasized their contributions to the maintenance of international peace and security and to other purposes of the UN.75 However, equitable geographical distribution has been the most contentious issue in the election of non-permanent members. While Article 23(1) requires that equitable geographical distribution be taken into account, it does not specify how many seats should be allocated to which geographical region. Therefore, in theory, any member state could vote for any eligible member states, as long as it felt that it took into account the factor of equitable geographical distribution. However, many member states referred to an oral agreement that was reached in London in 1946 which was often referred to as the ‘gentleman’s agreement’. Some member states explained that, according to this agreement, two states from the Latin American region and one state each from the British Commonwealth, the Middle East, Western Europe, and Eastern Europe were to occupy the six non-permanent seats of the Security Council.76 However, this was not an agreement that was binding on all member states or formally endorsed by the General Assembly. This can be seen partly from the way in which the results of the election of non-permanent members were announced in the General Assembly. The President of the General Assembly announced one list of member states that received votes, instead of separate lists of member states according to the various geographical regions.77 In practice, the ‘gentleman’s agreement’ was largely followed.78 However, the seat which was, on an informal basis, intended for a member state from Eastern Europe proved to be the most contentious. Except for the first two elections held in 1946 and 1948, in which Poland and the Ukrainian Soviet So74 75 76

77

78

Supra note 43. See for example, UN Doc. A/48/PV.27 (1993), at 5 and UN Doc. A/50/PV.53 (1995), at 2-3. UN Doc. A/PV.450 (1953), para. 19. See also UN Doc. A/PV.231 (1949), paras. 4 and 6; UN Doc. A/PV.353 (1951), para. 13; UN Doc. A/PV.450 (1953), paras. 22 and 23; UN Doc. A/PV.612 (1956), para. 19; UN Doc. A/PV.857 (1957), paras. 308 and 317; UN Doc. A/34/PV.115 (1979), paras. 28, 31, and 32; UN Doc. A/5487 (1963), para. 6; UN Doc. A/SPC/SR.419 (1963), para. 4; UN Doc. A/SPC/SR.425 (1963), para. 3; UN Doc. A/SPC/SR.428 (1963), paras. 8, 12, 56, 59, 61, 62, and 65; UN Doc. A/SPC.SR.429 (1963), para. 33. For example, the General Assembly held an election in October 1953 to fill three non-permanent seats. After the first secret ballot was held, the President of the General Assembly read out one list of eight member states that received votes (Brazil, New Zealand, Turkey, Poland, Philippines, Czechoslovakia, Ecuador and Mexico). See UN Doc. A/PV.450 (1953), para. 26. See L. Sievers and S. Daws, The Procedure of the UN Security Council (2014), at 134.

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29

cialist Republic were elected respectively, the seat in question was either occupied by a member state that did not belong to Eastern Europe, or was shared between a member state that belonged to Eastern Europe and a member state that did not, by serving one year each of the two-year term. Thus, Yugoslavia was elected (which did not seem to be considered as part of Eastern Europe at the time)79 in 1949;80 Greece in 1951;81 Turkey in 1953;82 Yugoslavia (now as part of Eastern Europe) in 195583 and the Philippines in 1956;84 Japan in 1957;85 Poland in 195986 and Turkey in 1960;87 Romania in 196188 and the Philippines in 1962;89 Czechoslovakia in 196390 and Malaysia in 1964.91 Other deviations from the ‘gentleman’s agreement’ was when Liberia and Ireland served one year each in 1961 and 1962 on a seat that was informally allocated to Western Europe,92 and when Ivory Coast was elected in 1963 instead of a member state that belonged to the British Commonwealth.93 The question of equitable geographical distribution was at the heart of the amendments to the Charter adopted in 1965 by General Assembly Resolution 1991 A (XVIII) by which the number of non-permanent seats was increased from six to ten. This resolution not only sought to increase the number of nonpermanent seats but also to settle the question of equitable geographical distribution by including the following operative paragraph: Further decides that the ten non-permanent members of the Security Council shall be elected according to the following pattern: (a) Five from African and Asian States; (b) One from Eastern European States; (c) Two from Latin American States; (d) Two from Western European and other States. 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93

After the election, the USSR representative stated that ‘Yugoslavia did not represent the countries of Eastern Europe’. UN Doc. A/PV.231 (1949), para. 13. UN Doc. A/PV.231 (1949), para. 9. UN Doc. A/PV.356 (1951), para. 15. UN Doc. A/PV.450 (1953), para. 33. UN Doc. A/PV.560 (1955), para. 1. UN Doc. A/PV.612 (1956), para. 15. UN Doc. A/PV.695 (1957), para. 2. UN Doc. A/PV.857 (1959), para. 332. UN Doc. A/PV.941 (1960), para. 3. UN Doc. A/PV.1068 (1961), para. 10. UN Doc. A/PV.1154 (1962), para. 3. UN Doc. A/PV.1254 (1963), para. 6. UN Doc. A/PV.1314 (1964), para. 5. UN Doc. A/PV.959 (1960), para. 81; UN Doc. A/PV.1044 (1961), para. 28. UN Doc. A/PV.1246 (1963), para. 2.

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Thus, by this resolution, the General Assembly fixed the number of seats for the various geographical regions, and marked an end to the question which had constantly been an issue since the drafting of the Charter. As far as the five seats for the African and Asian states are concerned, at the time the Special Political Committee approved the draft resolution that eventually became Resolution 1991 A (XVIII), the Chair of the African-Asian group confirmed the understanding that three seats would be allocated to African states and two seats to Asian states.94 At the time of adoption of this resolution at the General Assembly, the Rapporteur of the Special Committee recalled this understanding. The distribution of the African and Asian seats based on this understanding has been recalled by the President of the General Assembly at the time of elections of non-permanent members, occasionally since 1966 and systematically since 1984. As a matter of practice, member states have consistently observed this understanding.95 Furthermore, during the discussions in the Special Political Committee, some Arab states stated that Arab states were entitled to one of the five seats allocated to the African and Asian states.96 While this arrangement was not part of the understanding mentioned above, member states have consistently observed it since 1968. Thus, an Arab state has occupied one of the three seats for African states for a two-year term, and then one of the two seats for Asian states for the following two-year term, and so on.97 As a result, at any given time, there have been either two African states, two Asian states and one Arab state, or three African states, one Asian state and one Arab state on the Security Council as non-permanent members. Between October 1979 and January 1980, the General Assembly held 155 secret ballots to fill the one remaining non-permanent seat which belonged to Latin American states, due to the intense competition between Colombia and Cuba. At one point, India indicated that it might propose the suspension of operative Paragraph 3 of General Assembly Resolution 1991 A (XVIII) concerning the distribution of seats amongst the various regions, in order to allow member states to vote for any member state from any region.98 However, this did not occur as member states informally agreed to elect Mexico instead of Colombia or Cuba.99 94 95 96 97 98 99

UN Doc. A/SPC/SR.429 (1963), para. 21. See Sievers and Daws, supra note 78, at 135-8. UN Doc. A/SPC/SR.427 (1963), para. 35; UN Doc. A/SPC/SR.428 (1963), paras. 47, 55, 56, and 66. See Sievers and Daws, supra note 78, at 135-8. UN Doc. A/34/PV.115 (1979), para. 42; and UN Doc. A/34/PV.117 (1979), para. 19. UN Doc. A/34/PV.120 (1979), para. 6.

Non-Permanent Members: A Ch arter Perspective

6

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Election of the Non-Permanent Members

6.1 Electing Organ Article 23(1) of the Charter provides that ‘[t]he General Assembly shall elect ten other Members of the United Nations to be non-permanent members of the Security Council’. Therefore, the organ that elects the non-permanent members is the General Assembly. 6.2 Timing of the Elections As far as the timing of the elections is concerned, Rule 142 of the Rules of Procedure of the General Assembly provides that ‘[t]he General Assembly shall each year, in the course of its regular session, elect five non-permanent members of the Security Council for a term of two years’. The first election was held in January 1946 and the second election in November 1946. Since then, the Assembly normally held elections in October every year, which occasionally continued until November or December, and in one case, until January the following year.100 However, by its Resolution 68/307 of 10 September 2014, the Assembly ‘[d]ecide[d] to conduct the elections of the non-permanent members of the Security Council… about six months before the elected members assume their responsibilities, beginning at the seventieth session’,101 in order to allow sufficient time for the elected members to prepare for their tenure.102 Pursuant to this resolution, the election of non-permanent members whose terms of office were to begin on 1 January 2017 was held on 28 and 30 June 2016.103 Since then, the elections of non-permanent members have been held in June every year. 6.3 Eligible States As Article 23(1) of the Charter provides that ‘ten other Members of the United Nations’ should be elected as non-permanent members, only member states are eligible for election. However, member states that are permanent members are not eligible for election. Member states that are serving as non-permanent members are also not eligible, and, as far as those that are about to complete their two-year term of office, Article 23(2) of the Charter specifically provides that ‘[a] retiring member shall not be eligible for immediate re-election’. Fur100 Ibid., para. 11. 101 UN Doc. A/RES/68/307 (2014), para. 17. See also, UN Doc. A/RES/69/231 (2015), para. 21; UN Doc. A/RES/70/305 (2016), para. 19. 102 See UN Doc. A/RES/67/297 (2013), para. 17. 103 UN Doc. A/70/PV.106, 107, and 108 (2015).

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thermore, a member state that belongs to a particular regional group is not eligible to be elected to a seat in another regional group. Up to 2017, there was no formal nomination process for the election of nonpermanent members, as Rule 92 of the Rules of Procedure of the General Assembly provided that ‘[t]here shall be no nominations’. Therefore, member states could vote for any other member states, provided that they were eligible. As a matter of practice, regional groups endorsed member states, or member states announced their wish to serve as non-permanent members. Thus, for example, at the election held in June 2016, the President of the General Assembly announced that: For the two vacant seats from among the African and Asia-Pacific States, there are three candidates, namely, Ethiopia, Kazakhstan and Thailand. Of these three candidates, Ethiopia is an endorsed candidate. For the one vacant seat from among the Latin American and Caribbean States, there is one endorsed candidate namely, the Plurinational State of Bolivia. For the two vacant seats from among the Western European and other States, there are three candidates, namely Italy, the Netherlands and Sweden.104 While member states normally voted for the endorsed candidates, they were not legally required to vote for one of those candidates. Member states could vote for any eligible member states, including those that were not endorsed by a regional group or did not put forward their candidature. Hence, at the election referred to above which was held in June 2016, while Bolivia was the endorsed candidate for the one seat to be filled by a Latin American or a Caribbean state, Colombia and Cuba received one vote each.105 Similarly, while Italy, the Netherlands, and Sweden were the only member states that put forward their candidatures for the seat allocated to the Western European and other states, Belgium received one vote.106 In September 2017, the General Assembly slightly changed the procedure for elections in the Assembly. By Resolution 71/323 of 8 September 2017 entitled ‘Revitalization of the work of the General Assembly’, the General Assembly deleted the following sentence in Rule 92 of the Rules of Procedure: ‘There shall be no nominations’. By the same resolution, the General Assembly further decided that:

104 UN Doc. A/70/PV.106 (2015), at 2. 105 Ibid., at 3. 106 Ibid.

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… the names of candidates for election by the General Assembly…shall be communicated to the Secretariat, where possible, at least 48 hours prior to an election unless otherwise required by specific rules governing the elections concerned, and that those names shall be printed on the ballot papers, while additional space shall be provided on the ballot paper for inscribing other names, where applicable. An election of five non-permanent members of the Security Council was held under this new arrangement for the first time on 8 June 2018.107 6.4 Regular Elections and By-Elections Every year, an election for five non-permanent members is held. The number of vacant seats for each regional group differs every year. The one seat allocated to the Eastern European states and the two seats allocated to the Western European and other states become vacant every two years. On the other hand, of the two seats allocated to the Latin American states, one becomes vacant every year. Of the five seats allocated to the African and Asian states, three become vacant every two years and the other two become vacant every two years. Thus, for example, the following vacancies were filled at the election held in June 2016: two seats allocated to the African and Asian states; two seats allocated to the Western European and other states; and one seat allocated to the Latin American states.108 At the election that was held in June 2017, the following vacancies were filled: three seats allocated to the African and Asian states; and one seat each allocated to the Latin American states and the Eastern European states. Apart from the regular elections, additional elections may be held to fill any casual vacancy arising from, for example, the resignation of a non-permanent member. In this regard, Rule 140 of the Rules of Procedure of the General Assembly provides that, ‘[s]hould a member cease to belong to a Council before its term of office expires, a by-election shall be held separately at the next session of the General Assembly to elect a member for the unexpired term’. Such by-elections were held in 1956,109 1960,110 1961,111 1962,112 and 1964.113 In October

107 108 109 110 111 112 113

See A/72/PV.93. UN Doc. A/70/PV.106 (2015), at 2. UN Doc. A/PV.612 (1956), para. 16. UN Doc. A/PV.941 (1960), para. 3. UN Doc. A/PV.1044 (1961), para. 28. UN Doc. A/PV.1154 (1962), para. 3. UN Doc. A/PV.1313 (1964), paras. 3-5.

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2013, Saudi Arabia was elected for a two-year term starting on 1 January 2014.114 However, it subsequently withdrew,115 and another election was held in December 2013 to fill the vacancy.116 As Saudi Arabia had not yet begun its term of office, the election held in December 2013 was not a by-election but a part of the regular election. 6.5 Conduct of Elections As far as the conduct of elections is concerned, it is carried out by secret ballot as required by Rule 92 of the Rules of Procedure of the General Assembly. Secret ballots are conducted in accordance with Rule 94 of the Rules of Procedure of the General Assembly, which provides for an election procedure when there are two or more elective places. By-elections are often held for one vacant seat, in which case Rule 93 of the Rules of Procedure of the General Assembly would apply, which provides for an election procedure when there is only one elective place. However, in one instance, the General Assembly elected non-permanent members without a secret ballot. In 1964, the President of the General Assembly announced that: I would request each head of delegation, as soon as this meeting is adjourned, to call on me in my offices behind the podium, and I shall then give each one the means of stating anonymously and in writing the preference of his delegation as regards the filling of the four vacancies on the Security Council. He further stated that ‘I shall inform the Assembly of the results of this consultation, and I shall ask the Assembly whether, in the light of this information, it would be prepared to fill the vacancies on the Security Council without objection’.117 The President subsequently proposed that Jordan, Malaysia, the Netherlands, and Uruguay be elected as non-permanent members, which was approved by consensus.118 In other instances, elections were consistently held by secret ballot, even where there were endorsed candidates for all vacant seats. In many instances, a number of inconclusive secret ballots were held as no member state ob114 115 116 117 118

UN Doc. A/68/PV.34 (2013), at 2. UN Doc. A/68/599 (2013). UN Doc. A/68/PV.61 (2013), at 5. UN Doc. A/PV.1312 (1964), para. 9. UN Doc. A/PV.1313 (1964), para. 5; UN Doc. A/PV.1314 (1964), para. 3.

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tained the required majority. In such instances, the deadlock was resolved by one of the following methods: (1) additional secret ballots were held;119 (2) one of the two member states competing for the seat withdrew its candidature;120 (3) a third state was proposed as a compromise;121 or (4) the two competing member states informally agreed to serve one year each of the two-year term. The fourth method was frequently used before the distribution of seats was fixed by General Assembly Resolution 1991 A (XVIII). This method was first used in 1955 when Yugoslavia and the Philippines received the most votes, but neither obtained the required majority after many rounds of secret ballot. The President of the General Assembly proposed that, after consultation with delegations, lots were drawn to decide which member state should withdraw from the elections.122 As a result, the Philippines withdrew and Yugoslavia was elected, on the understanding that, after completing the first year of the term, Yugoslavia would offer its resignation from the Security Council and that the Philippines would then be elected to the vacant seat for the remaining one year.123 The President clarified that this understanding was not contrary to the provision in Article 23(2) that ‘[t]he non-permanent members of the Security Council shall be elected for a term of two years’. He clarified that Yugoslavia would be elected for a two-year term in accordance with this provision.124 Yugoslavia would then resign of its own will and a by-election would then be held

119 UN Doc. A/PV.149 (1948), at 346-7; UN Doc. A/PV.231 (1949), para. 9; UN Doc. A/PV.356 (1951), paras. 12-15; UN Doc. A/PV.1154 (1962), para. 8; UN Doc. A/33/PV.51 (1978), paras. 1721; UN Doc. A/37/PV.36 (1982), paras. 21-9; UN Doc. A/39/PV.33 (1984), paras. 15-19; UN Doc. A/40/PV.38 (1985), at 11-21; UN Doc. A/42/PV.40 (1987), at 51; UN Doc. A/43/PV.37 (1988), at 56-61; UN Doc. A/47/PV.48 (1992), at 31-6; UN Doc. A/48/PV.43 (1993), at 7; UN Doc. A/51/ PV.39 (1996), at 3; UN Doc. A/55/PV.32 (2000), at 5-7; UN Doc. A/56/PV.23 (2001), at 3; UN Doc. A/66/PV.37 (2011), at 3-4; UN Doc. A/69/PV.25 (2014), at 3-4. 120 UN Doc. A/PV.5 (1946), at 83-5; UN Doc. A/PV.109 (1947), at 749; UN Doc. A/PV.294 (1950), paras. 155 and 158; UN Doc. A/PV.450 (1953), paras. 27-33; UN Doc. A/PV.627 (1956), paras. 20-1 ; UN Doc. A/PV.2387 (1975), paras. 41 and 54; UN Doc. A/32/PV.43 (1977), paras. 18, 19, and 47; UN Doc. A/33/PV.51 (1978), paras. 4 and 9; UN Doc. A/35/PV.59 (1980), para. 18 and UN Doc. A/35/PV.61 (1980), para. 6; UN Doc. A/43/PV.37 (1988), at 51-60; UN Doc. A/48/ PV.44 (1993), at 1-2; UN Doc. A/51/PV.39 (1996), at 2-3; UN Doc. A/54/PV.34 (1999), at 6; UN Doc. A/62/PV.26 (2007), at 3-5; UN Doc. A/65/PV.28 (2010), at 3-4; UN Doc. A/66/PV.40 (2011), at 4. 121 UN Doc. A/34/PV.120 (1979), paras. 6 and 11; UN Doc. A/39/PV.105 (1984), paras. 4 and 11; UN Doc. A/61/PV.49 (2006), at 1-2. 122 UN Doc. A/PV.559 (1955), para. 198. 123 Ibid., paras. 200 and 269. 124 Ibid., para. 230.

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in accordance with the Rules of Procedure of the General Assembly, at which the Philippines was expected to be elected for the remainder of the term.125 Yugoslavia later notified the Secretary-General as follows: ‘Yugoslavia will not be in a position to serve on the Security Council of the United Nations in 1957 and that the seat at present occupied by Yugoslavia will therefore be vacant as from 1 January 1957.’126 The General Assembly then held a by-election, at which the Philippines was elected for the remaining one year.127 A similar method was used when Poland and Turkey served one year each in 1960 and 1961 respectively;128 Liberia and Ireland in 1961 and 1962;129 Romania and the Philippines in 1962 and 1963;130 and Czechoslovakia and Malaysia in 1964 and 1965.131 At the election held in June 2016, Italy and the Netherlands agreed to a similar arrangement.132 Italy started its two-year term on 1 January 2017. Italy declared that it would relinquish its seat on 31 December 2017.133 Therefore, the General Assembly held a by-election in June 2017, at which the Netherlands was elected for a term beginning on 1 January 2018 and ending on 31 December 2018 to serve out the unexpired term of Italy.134 6.6 Required Majority As far as the required majority is concerned, Article 18(2) of the Charter provides that ‘[d]ecisions of the General Assembly on important questions shall be made by a two-thirds majority of the members present and voting. These questions shall include… the election of the non-permanent members of the Security Council’. However, a question arose at the first election held in 1946 in connection with the implementation of Article 23(2) of the Charter, which provided that ‘[i]n the first election of the non-permanent members, however, three shall be chosen for a term of one year’. The question was whether the selection of 125 126 127 128 129 130 131 132 133 134

Ibid., para. 198. UN Doc. A/3332 (1956), Ann. UN Doc. A/PV.612 (1956), para. 16. UN Doc. A/PV.857 (1959), paras. 304-5, 322, 324, and 332; UN Doc. A/PV.941 (1960), paras. 2 and 3. UN Doc. A/PV.959 (1960), paras. 52, 81, 83, 84, and 86; UN Doc. A/PV.1044 (1961), paras. 25 and 28. UN Doc. A/PV.1068 (1961), paras. 2, 3, 10, 11, and 12; UN Doc. A/PV.1154 (1962), paras. 1-3. UN Doc. A/PV.1254 (1963), paras. 4, 6, 7, and 12; UN Doc. A/PV.1312 (1964), paras. 5-6; UN Doc. A/PV.1313 (1964), paras. 3-5. UN Doc. A/70/964 (2016) and UN Doc. A/70/965 (2016). See also, UN Doc. A/70/PV.107 (2016), at 2-3 and UN Doc. A/70/PV.108 (2016), at 6. UN Doc. A/71/896 (2017). UN Doc. A/71/PV.86 (2017).

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the three out of six non-permanent members which would serve for a term of two years required a two-thirds majority or a simple majority of the member states present and voting.135 The General Assembly decided that this decision only required a simple majority of the member states present and voting.136 The same required majority was applied in 1965 when the General Assembly selected two non-permanent members to serve for two years,137 after the Assembly elected four additional non-permanent members following the entry into force of the amendments to Article 23 of the Charter. 6.7 Term of Office Article 23(2) of the Charter provides that ‘[t]he non-permanent members of the Security Council shall be elected for a term of two years’. Furthermore, pursuant to Rule 139 of the Rules of Procedure of the General Assembly, ‘the term of office of members of Councils shall begin on 1 January following their election by the General Assembly and shall end on 31 December following the election of their successors’. Pursuant to these provisions, once the General Assembly elects the non-permanent members, they begin their term on 1 January of the year following their election and serve for two years. As noted above, on six occasions, the two member states that competed for one non-permanent seat informally agreed to serve one year each of the twoyear term. However, at no point on these occasions did the General Assembly elect a member state for a one-year term, which would have been contrary to Article 23(2) of the Charter. On these occasions, the General Assembly consistently elected one member state for a two-year term. That elected member state indicated that it was resigning from the Security Council at the end of the first year of the tenure, which was a sovereign decision of that member state. The resignation prompted a casual vacancy in the Security Council and required the General Assembly, pursuant to its Rules of Procedure, to hold a by-election. The General Assembly then elected the other member state for the remaining one year. However, the General Assembly did not choose to elect that member state for a one-year term, but merely elected it ‘for the unexpired term’ as required by its Rules of Procedure, which happened to be one year.

135 While Article 23(2) envisages the selection of three out of the six non-permanent members for a term of one year, the motion which was actually put to the vote by secret ballot was which three of the six non-permanent members should serve for a term of two years. See UN Doc. A/PV.5 (1946), at 85-8. 136 UN Doc. A/PV.5 (1946), at 85-7. 137 UN Doc. A/PV.1392 (1965), paras. 6, 20, and 26; UN Doc. A/PV.1393 (1965), para. 66.

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Legal Consequences of a Failure of the General Assembly to Elect a Non-Permanent Member In 1979, the General Assembly elected four non-permanent members but could not elect the fifth non-permanent member even after numerous rounds of secret ballot. Colombia and Cuba received the most votes but neither of them obtained the required majority. The date of expiry of the serving nonpermanent members, 31 December 1979, was rapidly approaching, and the possibility that the Security Council would only be composed of 14 members on 1 January 1980 became real. It was in this context that the question of the legal consequences of a failure of the General Assembly to elect a non-permanent member arose. More specifically, the Legal Counsel of the UN was asked by the President of the General Assembly to advise on whether the Security Council may continue to function with 14 members, and whether decisions taken by the Council with 14 members would be valid. At a plenary meeting of the General Assembly held on 31 December 1979, the Legal Counsel shared his legal opinion with the Assembly.138 He first referred to Article 23(1) of the Charter, which provided that ‘[t]he Security Council shall consist of fifteen Members of the United Nations’, and stated that ‘a legally constituted Security Council must have 15 members’. However, he further referred to the ‘primary responsibility [of the Security Council] for the maintenance of international peace and security’ and the fact that the Security Council ‘shall be so organized as to be able to function continuously’ pursuant to Article 28(1) of the Charter and opined that: 6.8

… the compositional requirement of Article 23 must be balanced against the requirements of other provisions of the Charter concerning the functioning of the Council in so far as the non-compliance with the requirement of Article 23 does not run counter to the provisions of Article 27, which may be considered as an implied quorum provision. In this regard, it is recalled that Article 27 requires at least nine votes in favour to adopt a decision on procedural matters, and at least nine votes in favour, including the concurring votes of the permanent members, to adopt decisions on all other matters. The Legal Counsel further opined that ‘an act of omission or the failure of the General Assembly to fulfil its constitutional obligations cannot be held to produce legal consequences so fundamental to the Organization as the paralysis of a principal organ’. 138 UN Doc. A/34/PV.117 (1979), paras. 25-42.

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On this basis, the Legal Counsel concluded that ‘in theory and in practice the Security Council may continue to function notwithstanding the fact that it is not legally constituted’ and that ‘decisions of the Security Council taken in accordance with the relevant provisions of Article 27 of the Charter would constitute valid decisions’. In practice, Colombia and Cuba eventually withdrew their candidatures, and Mexico was elected as a non-permanent member on 7 January 1980.139 Between 1 January 1980 and the time at which Mexico was elected a non-permanent member, the Security Council held five meetings140 and took several decisions to invite representatives of member states to participate in the discussion of the Security Council,141 but did not adopt any resolutions. However, there was no indication that the Security Council considered that it could not meet or take decisions due to the fact that it was composed only of 14 members. It is noted that, when announcing the election of Mexico, the President of the General Assembly stated as follows: ‘I wish to congratulate Mexico and the other countries that have been elected non-permanent members of the Security Council for a two-year term that began on 1 January 1980.’142 The decision containing the results of the election (decision 34/328) also indicates that the General Assembly ‘elected the German Democratic Republic, Mexico, the Niger, the Philippines and Tunisia non-permanent members of the Security Council for a two-year term beginning on 1 January 1980’.143 This may have meant that, while the General Assembly elected Mexico on 7 January 1980, its term retroactively began on 1 January 1980. 7

Role of the Votes of Non-Permanent Members in Decision‑Making

Before the 1963 amendments entered into force, Article 27(2) of the Charter required an affirmative vote of seven members with respect to decisions of the Security Council on procedural matters. Article 27(3) required an affirmative vote of seven members, including the concurring votes of the permanent members, with respect to decisions on all other matters. Therefore, the votes of permanent and non-permanent members had equal weight with respect 139 UN Doc. A/34/PV.120 (1980), para. 11. 140 1285th meeting held on 5 January 1980 to 1289th meeting held in the morning of 7 January 1980. See UN Docs. S/PV.1285 (1980) to S/PV.1289 (1980). 141 UN Doc. S/INF/36 (1981), at 1. 142 UN Doc. A/34/PV.120 (1980), para. 12. 143 UN Doc. A/34/46 (1980), at 263. Emphasis added.

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to procedural matters, but with respect to non-procedural matters, a single permanent member could reject a proposal. In this regard, the votes of nonpermanent members played no role in influencing the outcome when at least one permanent member cast a negative vote on non-procedural matters. On the other hand, non-permanent members had a larger role to play with respect to decisions on procedural matters, and decisions on non-procedural matters when none of the permanent members intended to cast a negative vote.144 In this context, if at least five non-permanent members abstained or voted against a proposal, the Council would fail to obtain the seven votes required by Article 27(2) and (3). In other words, non-permanent members alone could prevent the Security Council from adopting a decision. However, on the other hand, their votes alone were not sufficient to adopt a decision. The total number of votes of non-permanent members was six, which is one vote short of the seven votes required by Article 27(2) and (3). The situation changed after the 1963 amendments entered into force and the number of non-permanent members was increased from six to ten. As a result of the increase in the number of non-permanent members, the number of votes required for decision-making was also amended. Thus, at present, Article 27(2) of the Charter requires an affirmative vote of nine members to adopt decisions on procedural matters, and Article 27(3) requires an affirmative vote of nine members, including the concurring votes of the permanent members, with respect to decisions on all other matters. This meant that the votes of non-permanent members alone would be sufficient to adopt a decision of the Security Council, provided that no permanent member cast a negative vote in the case of decisions on non-procedural matters. In practice, the Security Council adopted Resolution 344 of 15 December 1973 concerning the Middle East Peace Conference by ten votes to none, with four abstentions.145 The ten votes were cast by the ten non-permanent members at the time. The four members that abstained were four permanent members (France, USSR, the UK, and the US). China did not participate in the voting. Therefore, Resolution 344 (1973) was adopted by the votes of non-permanent members alone. This would not have been possible before the 1963 amendments entered into force, as the total votes of the six non-permanent members fell short of the seven votes required by Article 27 of the Charter at the time. 144 It is recalled that the fact that one or more permanent members abstained in the voting does not prevent the Security Council from adopting a decision. See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, [1971] ICJ Rep. 16, para. 22. 145 UN Doc. S/RES/344 (1973).

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Finally, it is noted that, as far as the election of judges of the International Court of Justice (ICJ) is concerned, the Statute of the ICJ provides, in its Article 10(2), that ‘[a]ny vote of the Security Council…shall be taken without any distinction between permanent and non-permanent members of the Security Council.’ Therefore, while Article 27(3) of the Charter makes a distinction between the permanent and non-permanent members in relation to decisions on non-procedural matters, Article 10(2) of the Statute of the ICJ is an exception to that rule and places all members of the Security Council on an equal footing. 8

Conclusion

This chapter provided an overview of the Charter provisions concerning nonpermanent members of the Security Council and the legal issues that have arisen in connection with them. A review of the history reveals that a variety of legal issues of a different nature have arisen in the past, including constitutional and procedural issues. It is hoped that this chapter would provide some insights when similar issues arise in the future.

Chapter 3

Elected Members Today: Overcoming the Handicaps Ian Martin Well over twenty-five years ago, on 11 December 1992, the General Assembly adopted unanimously a resolution requesting proposals from member states for a review of the membership of the Security Council, and placing on its agenda the item ‘Question of equitable representation on and increase in the membership of the Security Council’.1 More than fifteen years ago, SecretaryGeneral Kofi Annan told the General Assembly: I respectfully suggest to you, Excellencies, that in the eyes of your peoples the difficulty of reaching agreement does not excuse your failure to do so. If you want the Council’s decisions to command greater respect, particularly in the developing world, you need to address the issue of its composition with greater urgency.2 The Security Council labours under a series of handicaps in measuring up to its primary responsibility for the maintenance of international peace and security. The first is a crisis of legitimacy stemming from its obviously anachronistic composition—its failure to reflect the geopolitical realities of the twenty-first century. The Council displays in its practice little awareness of how seriously this undermines its credibility in under-represented regions. With no current expectation that sufficient consensus to amend the Charter can be reached, the Council ought at least to show maximum openness to the wider membership, but this cannot be said to characterize the attitude of its permanent members. Meanwhile, the optimism which followed the end of the Cold War, that the political divisions which had inhibited Council action were a thing of the past, has evaporated as new differences—not so unlike the old ones—have emerged and deepened. Nowhere is this more evident than over the Syrian conflict, which by April 2018 had seen 12 resolutions vetoed in an increasingly bitterly divided Council. And while Syria and Ukraine are situations in which 1 2

UN Doc. A/RES/47/62 (1992). UN Doc. A/58/PV.7 (2003).

Schrijver and Blokker (eds.), Elected Members of the Security Council: Lame Ducks or Key Players? © 2020 Koninklijke Brill nv. isbn 978-90-04-42537-8. pp. 42-55. | DOI:10.1163/9789004425392_004

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major national interests of permanent members are at stake, the divisions have spilled over to bedevil situations on the Council’s agenda where there are no such interests and Council consensus ought to be more readily achievable. At the same time, the dynamics among the five permanent members have become more complex. Trump’s America and Macron’s France are far apart on many issues, with Brexit Britain uncomfortably caught between them. Despite their similar approaches to issues of national sovereignty and interventionism, it cannot be assumed that China will always follow a Russian lead, as it becomes increasingly assertive on the international stage—although not yet very visibly in the Council. Of the 12 vetoes on Syria resolutions from October 2011 to April 2018, China voted with Russia in six of the first seven, but none of the last five. This chapter has as its premise that these contextual factors make the role of the ten elected members more critical than ever. Their responsibility to those who elected them requires them to be a bridge between the Council and the wider membership. And despite their own ideological diversity, they can help to find greater consensus when permanent members are confronting each other. However, we will examine the several impediments to their being able to play their part as strongly as is needed. 1

The Practice of Elections

Article 23(1) of the Charter provides that the General Assembly shall elect ten non-permanent members, ‘due regard being specially paid, in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization, and also to equitable geographical distribution.’ The Charter does not stipulate how equitable geographical distribution should be achieved; nor does it define the composition of appropriate geographical groups. The regional groups as they now operate are the African Group, which with 54 members has three seats (with no permanent member); the Asia-Pacific Group, which with 54 members has two seats (in addition to permanent member China); the Eastern European Group, which with 23 members has one seat (in addition to permanent member Russia); the Latin American and Caribbean Group, which with 33 members has two seats (with no permanent member); and the Western European and Others Group, which with 28 members has two seats (in addition to permanent members France, the UK and the US). There is an informal agreement that one seat will be reserved for an Arab state, with Africa and Asia taking turns to provide a candidate for an

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‘Arab swing seat’. When the permanent members are taken into account, the disparity in regional distribution as it might be determined by population, national income, or numbers of states is glaring. The selection of candidates operates very differently within the different groups. The African Group operates a rotation system on a sub-regional basis, which is only occasionally challenged in a contested election. The Asia-Pacific Group, whose wide geographic span results in much looser regional co-ordination, has no formal rotation system, so that contested elections result more often. The Eastern European Group—11 of whose countries are today members of the EU and another four candidates for EU membership—also sometimes sees contested elections. After protracted contests, the Latin American and Caribbean Group developed an informal understanding to avoid contested elections and has done so for the past ten years. The Western European and Others Group practices an open market approach to elections, which produces a regular pattern of highly competitive contests.3 A country must obtain the votes of two-thirds of the member states present and voting at the General Assembly session in order to secure a seat on the Council, regardless of whether the election is contested. In theory, this allows the whole membership to assess how far candidates measure up to the Charter criterion of their contribution to international peace and security and other purposes of the UN. In practice, uncontested candidatures endorsed by regional groups almost always go unchallenged in the General Assembly. And where there is a contest, it is far from clear that it is the Charter criterion which weighs most with member states. Contests have tended to begin earlier and to involve increasing levels of expenditure, invitations to capitals, entertaining, and gifts, as well as political lobbying by roving ambassadors and targeting of development assistance. Some have therefore begun to argue for an election code of conduct to encourage restraint in such campaigning. Effectiveness on the Council should not be assumed to be a function of the size of the state, even if diplomatic representation in regions and countries of Council engagement is an asset: small states from different regions have been highly effective Council members. The quality of the permanent representative is a significant factor, as well as the political support received from the capital. But the manner of elections is far from guaranteeing that the ten elected members will be among those from their regions who can make the most effective contribution to the work of the Council.

3

For a fuller description of practices within regional groups, see Security Council Report, ‘Security Council Elections 2017’ (2017), 8.

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The Length of Term and Preparation for Council Membership

The most obvious handicap to the effectiveness of elected members is the brevity of the two-year term contrasted with the continuity of the permanent members, with their institutional memories and large diplomatic staffs. This is recognized in reform proposals which would provide longer terms, or possibility of re-election, or both.4 The ability of elected members to mitigate their handicap with preparation before commencing their two-year term has recently been somewhat enhanced by the decision of the General Assembly in September 2014 to bring forward the date of their election.5 Until 2015, elections were held in October, but from 2016, they now take place in June. The Council then agreed to bring forward from 1 December to 1 October the date from which it invites the newly elected members to observe all meetings and informal consultations of the Council and its subsidiary bodies.6 It suits the permanent members to have elected members take on the considerable burden of chairing sanctions committees and other subsidiary bodies (while consensus decision-making ensures that there is no loss of control by the permanent members). Before 2016, the allocation of chairs of subsidiary bodies was made by the permanent members, with a degree of consultation which was regarded as quite inadequate by the elected members, to whom it was handed down only very close to—or even on occasion, after—1 January when they were expected to assume the responsibility. This was a source of considerable resentment on the part of elected members, even to the point of refusal to accept the allocated responsibility. Following the decision to move the election to June, the Council’s Informal Working Group on Documentation and Other Procedural Questions (where it discusses its working methods) considered new measures to facilitate the induction of elected members. On timing, it agreed to seek to reach agreement on chairs of subsidiary bodies by 1 October each year. However, modifying the process for selection proved highly contentious in the Informal Working Group: a proposal from some elected members that this should be the responsibility of the Council President was strongly resisted by permanent members. The eventual compromise was that the process ‘will be facilitated jointly by two members of the Security Council working in full cooperation’, with the unwritten understanding that the two 4 5 6

See for example A More Secure World: Our Shared Responsibility. Report of the High-level Panel on Threats, Challenges and Change, UN Doc. A/59/565 (2004), at 80-2. UN Doc. A/RES/68/307 (2014). UN Doc. S/2016/619 (2016).

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members would be one permanent member and the elected member chairing the Informal Working Group.7 These changes allow for better preparation by newly-elected members, including the handover of responsibilities for sanctions committees and other subsidiary bodies from their predecessors. For the past sixteen years, beginning in 2003, Finland has hosted an annual workshop, the ‘Hitting the Ground Running’ retreat, where the newly elected members hear the experience of outgoing members and participate in a discussion of the work and practices of the Council with all Council members.8 The Security Council Affairs Division of the UN Secretariat’s Department of Political Affairs has steadily enhanced its own induction of new elected members. Security Council Report now offers tailored capacity development sessions to newly elected or candidate members, both in New York and in capitals, and these are now taken up by the great majority of elected members. Informal interaction among past, present, and future elected members has increased, although this is not helped by the fact that most members of outgoing Council delegations leave New York for new postings very soon after their term ends. But the challenge of preparation and the disparity between the elected and permanent members are immense. One Australian delegate described the experience of joining the Council in 2013 as ‘akin to arriving at a dinner party where there were forty-four separate, intense conversations taking place and needing to intervene in every conversation in a coherent and informed way’.9 The earlier election has opened up greater space for such preparation, but the limitations of a two-year term are still hard to exaggerate. In this context, the decision of Italy and the Netherlands, with the endorsement of the Western European and Others Group, to split the 2017-18 term when they were tied after five rounds of close voting in June 2016, suggesting that neither would achieve a two-thirds majority, is not a good precedent. Russia and Egypt, then an elected member, sent letters to the President of the General Assembly in which they outlined their concerns, arguing that a practice of splitting a term would have a negative impact on the functionality and efficiency of the Coun-

7 8 9

Security Council Report, ‘Security Council Working Methods: Provisional Progress’ (2018), 7. Reports of the workshops, compiled by Finland in accordance with the Chatham House Rule, are circulated with a letter from the Permanent Representative of Finland to the President of the Security Council, see for example, UN Doc. S/2018/404 (2018). J. Langmore and J. Farrall, ‘Can Elected Members Make a Difference in the UN Security Council? Australia’s Experience in 2013–2014’, (2016) 22(1) Global Governance: A Review of Multilateralism and International Organizations 59, at 63.

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cil.10 Russia noted that the last split term had been more than 50 years before, following which the Council’s workload has greatly increased. Although Italy and the Netherlands established collaborative arrangements, which included embedding diplomats in each other’s teams, the criticism is a powerful one. 3

The Agenda of the Council and Time Management

In 1990, the Council held 69 meetings and 80 consultations. In 2017, there were 296 meetings—a fourfold increase—and 137 consultations. The Council adopted 37 resolutions in 1990, and 61 in 2017. In 2017, it issued 1135 documents. It spent an average of 56 hours each month in formal meetings and consultations, to which can be added time spent in ‘Arria-formula meetings’,11 informal interactive dialogues, and sanctions committees and other subsidiary bodies, as well as in negotiations. There can be no doubting the greatly increased weight of necessary Council business, but the Council adds to the burden on itself by poor time management. Reporting cycles do not necessarily correspond to the need for another round of consideration of an agenda item, and often result in discussions which add little to the one before. Despite repeated injunctions to itself, the Council spends much of its time in informal consultations in the delivery of repetitive prepared speeches, and only limited time in interaction with each other and with briefers focused on strategic issues. The time devoted to open debates and thematic issues also merits scrutiny. From 90 hours in 2013, the cumulative duration of open debates went up gradually to more than 170 hours in 2017. Non-members have long sought opportunities to engage with the Council, and in principle welcome open debates. But their contribution to Council decision-making, especially as regards core situations on the Council’s agenda, is questionable. Originally, open debates 10 11

Security Council Report, ‘Security Council Elections 2017’ (2017), 2. The Russian and Egyptian letters are UN Doc. A/70/971 (2016) and UN Doc. A/70/974 (2016). ‘Arria-formula meetings’ began as informal, confidential gatherings, which enable Security Council members to have a frank and private exchange of views, including with civil society representatives, within a flexible procedural framework; today, they may be closed or open meetings, and some are webcast. They are not envisaged in the Charter of the UN or the Security Council’s Provisional Rules of Procedure. Under Art. 30 of the Charter, however, the Council is the master of its own procedure and has the latitude to determine its own practices. See ‘Background Note on ‘Arria-Formula’ Meetings of Security Council Members’, Informal Non-Paper of 25 October 2002, prepared by the United Nations Secretariat. See also Security Council Report, ‘Arria-Formula Meetings’, www.securitycouncilreport.org/un-security-council-working-methods/arria-formula-meetings.php.

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were mostly conflict-specific, but most open debates are now thematic, with situation-specific ones other than the quarterly Middle East open debate being rare exceptions.12 Council members speak first and thereafter are represented at junior levels; and if there is any outcome, in the form of a resolution or Presidential Statement, it is often pre-determined and thus unrelated to the views expressed by non-members. The Council’s thematic debates have made important contributions to normative developments, such as those regarding women and peace and security, children and armed conflict, and the protection of civilians, and have given rise to mechanisms for country-specific briefings and discussion.13 But the debates themselves can become repetitive with little impact on country situations. Most elected members feel they should mark their presidencies with thematic debates, perhaps to fulfil campaign commitments or to provide platforms for their ministers. The Council, however, needs to refocus on how its permanent representatives can devote sufficient time to strategic discussion of its core responsibilities, notably, intractable country and regional situations and ensuring effective mandates and political support for peace operations. 4

Working Methods of the Council

The greatest obstacles to the effectiveness of elected members are found in the working methods which permanent members have imposed on the Council. The domination of the permanent members was always considerable, but ‘it was not unusual in the early 1990s for elected members to take initiatives on major substantive items and to strongly contest the policy options on other items where a member of the P5 had the lead’.14 Countries which have come back onto the Council after a substantial interval—New Zealand, returning in 2015-16 after 22 years; Sweden, returning in 2017-18 after 20 years—remark

12 13 14

Security Council Report, ‘In Hindsight: Security Council Open Debates’, Monthly Forecast June 2017 (2017), 2. The Informal Expert Group on Women, Peace and Security; the Working Group on Children and Armed Conflict; and the Informal Expert Group on the Protection of Civilians. C. Keating, ‘Power Dynamics Between Permanent and Elected Members’, in S. von Einsiedel, D. Malone, and B. Stagno Ugarte (eds.), The UN Security Council in the 21st Century (2016), 139 at 145.

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on the closing down of space for the initiative and effective contribution of elected members.15 Central to this is the operation of the penholder system, under which one member of the Council takes the lead in drafting the text of a resolution or Presidential Statement, and in other initiatives regarding a particular agenda item.16 It is a relatively recent practice, which has become entrenched in the past decade. Since 2014, Notes by the President—the form in which Council working methods are articulated—have institutionalized penholdership as a recognized, if informal, arrangement.17 In doing so, they state that any member of the Council may be a penholder. Yet there is no process by which the Council agrees to designate a penholder or reviews the allocation of penholderships. In practice, three permanent members—France, the UK, and the US (the P3)—are today sole penholders on the overwhelming majority of country situations on the Council’s agenda.18 A joint statement of six elected members from six regions—Angola, Chile, Jordan, Malaysia, New Zealand, and Spain—in an October 2015 open debate on Council working methods noted that the penholder system ‘has diminished the opportunity for wider Council engagement, especially by the elected members’, and ‘cuts across the principle of collective responsibility that underpins the Charter’.19 Closely linked to the penholder system is the manner of negotiations, the quality and outcomes of which are of supreme importance to the effectiveness of the Council. But these are vitiated by penholder domination. The permanent representative of New Zealand spoke to this in a July 2016 open debate: … the Council was intended to be a collective security body. Too often, it is a forum for polarizing initiatives and last-minute take-it-or-leave-it drafts tabled by so-called penholders. Those practices leave no space for meaningful input from Council colleagues, let alone affected parties… Penholders routinely take zero drafts straight to meetings of so-called experts. This precludes any real effort at building genuine consensus on the 15 16 17 18

19

See also I. Martin, ‘In Hindsight: What’s wrong with the Security Council?’ Monthly Forecast April 2018 (2018). See Security Council Report, ‘The Penholder System’ (2018). For example, see UN Doc. S/2014/268 (2014) and UN Doc. S/2017/507 (2017). Security Council Report publishes a list of penholderships annually in its February Monthly Forecast. See most recently, Security Council Report, ‘Lead Roles within the Council 2019: Penholders and Chairs of Subsidiary Bodies’, Monthly Forecast February 2019 (2019), at 25-28. UN Doc. S/PV.7539 (2015), at 7.

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key policy questions to be considered. Non-penholders have to choose between accepting a text largely as presented, or risk being accused of torpedoing important documents if they wish to make substantive policy proposals. Those practices are neither effective, sustainable nor respectful of the perspectives of other Council members.20 The latest consolidated Note by the President addresses negotiating practice, not for the first time but more fully than its predecessors.21 It stresses that drafting should be carried out in an inclusive manner that will allow the participation of all members; that penholders should engage in timely consultation with all members with openness and flexibility; that there should be at least one round of discussions with all members; and that penholders should provide a reasonably sufficient time for consideration by all members. Moreover, there should be informal consultation in an early manner with the broader membership. All this might seem an obvious statement of good practice, but it is far from being the current reality. Notes by the President also state that more than one member may act as co-penholders.22 Co-penholdership could be a way of drawing more fully on those elected members who chair the relevant sanctions committees or who have regional or other strong expertise on a country situation. But this is not invited by the P3 penholders. It may seem surprising that the domination of the penholder system by the P3 has not been more strongly challenged by Russia or China. China, however, has so far shown no aspiration to lead on issues in the Council: it almost never proposes the text of a resolution or Presidential Statement. Russia does sometimes present drafts, and has maintained that the Council would benefit from ‘the further democratization of its work’, with a more equitable distribution of penholdership: ‘Certain Council members should not regard countries or even regions as their tutees and act as mentors on certain issues. This is a vestige of a bygone era, entirely out of place in the twenty-first century.’23 But in practice, the availability of the veto ensures that the P3 consult Russia and China on their drafts, and thus appears to make the penholder system of less concern to them than to the marginalized elected members. 20 21 22 23

Ambassador Gerard van Bohemen, Permanent Representative of New Zealand, UN Doc. S/PV.7740 (2016), at 9. UN Doc. S/2017/507 (2017), at 13-14. For an account of the negotiation of this and preceding consolidated Notes, see Security Council Report, supra note 7. UN Doc. S/2017/507 (2017), at 13 and UN Doc. S/2014/268 (2014). Ambassador Vitaly Churkin, Permanent Representative of the Russian Federation, UN Doc. S/PV.7740 (2016), at 11.

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In 2018, the challenge to P3 penholdership intensified. Having taken over the chair of the Informal Working Group, Kuwait held an open debate on working methods during its February presidency, which saw sustained criticism from elected members and non-members of the Council.24 Russia advocated expanding the circle of penholders, particularly by using elected members.25 Kuwait then distributed a non-paper with further proposals and Russia circulated a draft note by the President with changes to the penholder system including an allocation process, but their proposals to distribute penholdership and copenholdership between both permanent and elected members continued to be resisted by the P3.26 5

The Growing Assertiveness of Elected Members

Notwithstanding these handicaps, the trend towards the closing down of space for the contribution of elected members has been more strongly resisted in recent years and has begun to be somewhat reversed. No situation has caused more outrage at and around the UN than the failure of the Council to bring an end to the Syrian conflict and the extreme suffering of civilians which is its consequence. In 2013, with permanent members deadlocked on the political situation, elected members Australia and Luxembourg took the lead in drafting first a Presidential Statement,27 and then, joined by Jordan when it came onto the Council in 2014, a resolution addressing the humanitarian situation and calling for improved humanitarian access.28 Elected members became the recognized penholders on Syrian humanitarian issues, with the pen passing successively to co-penholderships involving New Zealand, Spain, Egypt, Japan, Sweden, and Kuwait. They have succeeded in negotiating outcomes which the permanent members would not themselves have achieved. Elected members have thus increasingly co-operated across their own political differences to seek consensus on aspects of the Syria situation. This has included ultimately unsuccessful efforts to find consensus af24 25 26 27 28

UN Doc. S/PV.8175 (2018). Kuwait circulated a summary of the debate to all member states, UN Doc. A/72/849-S/2018/399. UN Doc. S/PV.8175 (2018), at 8. See Security Council Report, ‘Informal Working Group on Documentation and other Procedural Questions Meeting’, What’s In Blue, June 2018. UN Doc. S/PRST/2013/15 (2013). See Security Council Report, ‘Syria: Addressing the Humanitarian Crisis’, What’s In Blue, October 2013. UN Doc. S/RES/2139 (2014). See Security Council Report, ‘Possible Vote on Syria Draft Humanitarian Resolution’, What’s In Blue, February 2014.

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ter an April 2016 chemical weapons attack (referred to further below); to save the Joint Investigative Mechanism of the Organization for the Prohibition of Chemical Weapons and the UN in November 2017;29 and, in February 2018, to demand a month-long cessation of hostilities amid intensification of the fighting in Syria.30 These efforts have been welcomed by China but often not by the other permanent members, which sometimes seem to have preferred to proceed to a veto rather than seek compromise. In 2016, five elected members took the initiative in drafting and negotiating, over several months, a resolution on the protection of health care in armed conflict, at a time when ‘four of the five permanent members of the Council have, in varying degrees, been associated with coalitions responsible for attacks on health-care structures’ in Afghanistan, Yemen and Syria.31 While, like other thematic efforts to enhance protection of civilians, this may seem to have had little effect on the ground, it established strong reporting requirements, including for country-specific reports of the Secretary-General.32 The ineffectiveness of the Council on Syria in the face of the Russian veto is mirrored by its ineffectiveness on Israel/Palestine in the face of the US veto. In December 2016, elected members were instrumental when the Council issued a rare rebuke of Israel, with the adoption of a resolution condemning Israeli settlements as having no legal validity and constituting a major obstacle to a two-state solution.33 When the possibility opened up that the departing Obama administration would not veto a resolution once the US presidential election had taken place, Egypt (acting on behalf of the Arab League) was joined by New Zealand—which had been a strong proponent of Council action on the issue during its term on the Council—as well as Malaysia, Senegal, and Venezuela in tabling a draft resolution. Egypt withdrew its sponsorship following a call from US President-elect Donald Trump to Egyptian President Abdel Fattah al-Sisi, but the resolution was re-tabled by the other four elected members and adopted with the US abstaining.34 In June 2018, a draft resolution by 29 30 31 32 33 34

Security Council Report, ‘In Hindsight: The Demise of the JIM’, Monthly Forecast January 2018 (2018), 1-2. Security Council Report, ‘Possible Vote on Humanitarian Draft Resolution and Meeting on Eastern Ghouta’, What’s In Blue, February 2018. J. Liu, International President of Médecins Sans Frontières (MSF), UN Doc. S/PV.7685 (2016), at 8. Security Council Report, ‘Briefing and Resolution on Healthcare in Armed Conflict’, What’s In Blue, May 2016. See UN Doc. S/RES/2334 (2016). Security Council Report, ‘In Hindsight: Resolution on Israeli Settlements’, Monthly Forecast February 2017 (2017), at 3-4.

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Kuwait on the protection of civilians in Gaza garnered ten votes in favour, with four abstentions and a veto by the US.35 The political differences among elected members are as wide as those among the permanent members, but they have a common interest in promoting working methods which lessen the domination of the permanent members and open up space for elected members and non-members to influence Council decisions. Security Council Report has analysed the ways in which elected members have pressed over time to develop and institutionalize more transparent and open working methods, with some members continuing to pursue their efforts throughout more than one term on the Council and as a non-member in-between.36 A major area of such effort has related to sanctions committees—not surprisingly, as they are chaired by elected members and their decisions are to be implemented by all member states. This has achieved some progress towards more consistent application of best practice, but what was perhaps the most determined attempt, by Australia during its 2013-14 term, foundered on the opposition of Russia.37 After Venezuela held a debate on working methods of subsidiary organs during its February 2016 presidency,38 the subsequent Presidential Statement was first negotiated among the ten elected members before being shared with the permanent members.39 As well as outlining measures aimed at improving transparency, such as conducting chair’s briefings to the Council in public meetings rather than closed consultations and holding interactive briefings for non-members, it highlighted the need to improve the process for selection of chairs. This heralded the changes in the selection process described above. But advances in transparency have been limited, and the ever-tighter grip of consensus decision-making has inhibited the role of elected members as chairs of sanctions committees, even as the permanent members are happy to have them bear the heavy administrative burden.40 As already noted, the Council’s codification of its working methods states that any member of the Council may be a penholder, and that more than one member may act as co-penholders. But greater assertiveness of elected members had yet to lead to direct challenges to existing penholder arrangements, even in cases where a particular penholdership is most clearly inappropriate. 35 36 37 38 39 40

See UN Doc. S/RES/2018(516); UN Doc. S/PV.8274 (2018); Security Council Report, ‘In Hindsight: Competing Texts on Israel/Palestine’, Monthly Forecast July 2018 (2018). See Security Council Report, supra note 7. Ibid., at 14. UN Doc. S/PV.7620 (2016). UN Doc. S/2016/170 (2016). See also Security Council Report, supra note 7, at 15. Ibid., at 11-15; especially on working methods relating to sanctions.

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The role of the UK as penholder on Yemen bears heavy—although certainly not sole—responsibility for the inaction of the Council in the face of persistent violations of international humanitarian law by the Saudi Arabian-led coalition, supported by the UK and the US, and the greatest of the world’s extreme humanitarian crises. While Sweden and other elected members have pressed for greater Council action and threatened to move forward if the UK continued to stall, the UK’s penholdership has not been displaced, although co-ordination by some elected members has emerged as a result of what were perceived as unbalanced Council draft products on Yemen.41 A moment of revolt by the elected members occurred during the US presidency in April 2017, when the elected members were excluded from negotiations of a resolution agreed among the P3, condemning the Khan Shaykhun chemical weapons attack in Syria and inviting a Russian veto. Sweden convened the elected members, who were not willing to proceed to a vote on the P3 draft and instead tabled their own text, in an effort to break the impasse among the permanent members and avert a Russian veto and airstrikes by the P3.42 Although the attempt to find consensus was ultimately unsuccessful, it contributed to a greater collective spirit among the ‘E10’. Thus, the ten elected members have begun acting as a more cohesive group. In 2018, they met monthly at both permanent representative and political coordinator level and had several meetings as a group with the Secretary-General.43 In September 2018, the E10 adopted ‘Ten Elements for Enhanced E10 Coordination and Joint Action’, in which they agreed to continue the monthly meetings, with co-ordination rotating in alphabetical order (as well as a WhatsApp group); envisaged inviting upcoming members upon their election; committed to sharing draft proposals for resolutions and Presidential Statements at an early stage to enhance support or co-sponsorship; and intended to enhance informal interaction of the group with the Secretary-General and Under-Secretaries-General. They advocated fair burden-sharing by all members of the Council, reiterated the right of all members to pursue initiatives and of any member to be a penholder, and agreed that the chair of a subsidiary organ is, by default, co-penholder of the agenda item. In November 2018, the current 41

42 43

Security Council Report, ‘In Hindsight: Council Action and Inaction on Yemen’, Monthly Forecast July 2017 (2017), at 1-2; ‘Yemen: Security Council Presidential Statement’, What’s In Blue, March 2018; and ‘In Hindsight: Emergence of the E10’, Monthly Forecast October 2018 (2018). Security Council Report, ‘In Hindsight: Council Dynamics and Syria Resolutions’, Monthly Forecast May 2017 (2017), at 1-3. Security Council Report, ‘In Hindsight: Emergence of the E10’, Monthly Forecast October 2018 (2018).

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E10 and the five newly elected members held an ‘E10 Dialogue’ in South Africa, with representatives from capitals as well as from New York permanent missions. All fifteen signed a letter to the President of the Council which noted that they had been elected with large margins by the General Assembly and bring added legitimacy to the Council. They said that the principle of equal distribution of work among all members, including the permanent members, should mean that no member should chair more than two subsidiary bodies, and should apply to penholderships. They proposed promoting the role of chairs of sanctions committees as penholders and automatic co-penholders on the related dossiers. The summary of the E10 Dialogue set out further proposals for E10 cooperation, noting ‘that the current geopolitical environment created the opportunity and necessity for E10 members to foster greater collaboration to ensure unity of the Council’, including by acting as bridge builders to overcome deadlocks.44 6

Conclusion

At the end of 2018, the internal politics of the permanent members and the relations among them seemed to offer no prospect of improvement in the effectiveness of the Council, confronted as it is by threats of great danger and complexity. Reform of the composition of the Council is essential as a matter of justice and legitimacy, yet seems still beyond the ability of governments to agree upon. It would not in itself be a guarantee of effectiveness, and indeed an enlarged Council would all the more need to improve its working methods. In the immediate future, therefore, it is the quality and determination of the ten elected members on which some incremental improvement in performance most depends.

44

See ‘With adoption of three key documents, momentum accelerates for enhanced E10 impact’, Update Website of L. Sievers and S. Daws, The Procedure of the UN Security Council, www.scprocedure.org/chapter-3-section-3i. The letter is UN Doc. S/2018/1024 (2018).

Chapter 4

Campaigning for an Elected Seat in the UN Security Council Ann-Marie Ekengren and Ulrika Möller 1

Non-Permanent Members in the UN Security Council: Who Should be Elected?

Why do countries seek representation in the UN Security Council? What accounts for a successful effort? The five permanent seats that come with a right to veto are the typical illustration of how the Security Council reflects the uneven distribution of power in international politics. A much less frequent example is the variation in opportunity to win representation through the nonpermanent (or elected) seats with a two-year mandate and a regular vote in decisions. Two-thirds of all member states of the UN have served on the Security Council on at least one occasion. At the same time, while ten countries have been among the elected members six times or more, there are also 67 countries not yet elected once. To win a seat in the Security Council requires two thirds of the votes from present and voting member states at the annual elections in the General Assembly. The UN Charter specifies that member states pay special attention ‘in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization, and also equitable geographical distribution.’1 The selection of candidates takes place on a regional basis, within five groups. Among the 67 countries never elected, ten have a history of at least one unsuccessful candidature. The remaining countries never elected have not sought to become or succeeded in becoming a candidate. The nomination process varies between the regional groups in their practice of ‘clean slates’ (the endorsement of one candidate per seat) or contested elections (the endorsement of several candidates in competition over seats). The underlying conditions for successful election to the Security Council, as well as the main features of the campaign process itself, are underexplored academic topics. Statistical studies point to certain country characteristics connected with success in the attempts to acquire an elected seat. In this chapter, 1

1945 Charter of the United Nations, 1 UNTS XVI, Art. 23(1).

Schrijver and Blokker (eds.), Elected Members of the Security Council: Lame Ducks or Key Players? © 2020 Koninklijke Brill nv. isbn 978-90-04-42537-8. pp. 56-70. | DOI:10.1163/9789004425392_005

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we seek to illuminate the conditions and reasons for becoming a candidate for an elected seat, and some of the important characteristics of the campaign process. Departing from existing research, we take as a point of reference the Swedish campaign for the 2017-18 term. We focus on (1) the message of the campaign in comparison with the competitors in the group, and (2) the Swedish domestic debate on the candidature in comparison with the Dutch domestic debate, leading to (3) some current estimations on the success (and failures) of the campaign, as the conclusion.2 2

Increasing Competition over Seats: Who is Elected?

The monopolization of effective decision-making power by the permanent five (P5) has not prevented the other UN member states from attempting to become one of the elected ten (E10). There has been an increase in competition for representation in the Security Council since the 1990s, and winning a seat has been described as ‘more of a prize than ever’.3 More than 20 of the countries elected on at least one occasion since 1990 have also campaigned unsuccessfully during this time. Not only smaller developing states, such as Benin and Guinea-Bissau, but also wealthy regional powers, such as Canada and Australia, are among those with a failed attempt to win a non-permanent seat on their record. Through the annual elections, there is a rotation of five seats for the coming two years. Nomination as a candidate for a seat takes place within the five regional groups. The regional representation is set to three from Africa, two from Asia and the Pacific, one from Eastern Europe, two from Latin American and the Caribbean, and two from the Western Europe and Others group (WEOG) (including Canada, Australia and New Zealand).4 On even calendar years, there are elections for one seat from the African group, one from the Asia-Pacific group, one from the Latin America and Caribbean group, and two from the WEOG. On odd calendar years, there are elections for two seats from the African group, one from the Asia-Pacific group, one from the Latin America 2

3 4

Additional knowledge on this topic will follow in the years to come through the ongoing research-project: A. Ekengren, U. Möller, T. Piiparinen, T. Seppä and B. Thorhallsson, The Quest for Power in International Politics: Campaigns by and Selection of Non-Permanent Members to the United Nations Security Council (forthcoming). D. Malone, ‘Eyes on the Prize: The Quest for Nonpermanent Seats on the UN Security Council’, (2000) 6(3) Global Governance 23. UN Doc. A/RES/1991 (XVIII) (1963); Malone, ibid.; I. Hurd, ‘Myths of Membership: The Politics of Legitimation in UN Security Council Reform’, (2000) 14 Global Governance 199.

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and Caribbean group, and one from the Eastern European group.5 The distribution of regional representation is the result of reform in 1963, through which the number of non-permanent seats was extended from six to ten. The reform was in response to a changing international community, with an increasing number of newly independent states. A further increase in the number of states since, from 104 in 1963 to 193 in 2017, attests to the current competitiveness among states to serve as a non-permanent member. Countries with an interest in a seat are facing an increasing number of possible candidates and all candidates need to convince more countries during their campaigns in order to secure the required number of votes. Results from statistical analysis reveal that involvement in war and conflict has a negative impact on the chances of obtaining a non-permanent seat, and that wealthier countries from the developed world more frequently win elections.6 The increase in competition for a seat may have reinforced a pattern in which economic resources are decisive, as it spurs on more intense, and thereby costlier, campaigns. It may also lead to an increase in less appealing campaign features that benefit wealthier candidates, such as vote trading, gifts, and promises of financial contributions. The development within some regional groups towards a set system of rotation, and the endorsement of one candidate per seat, runs in the opposite direction. The African group most consistently applies a rotational system, while WEOG is most inclined towards endorsing several candidates, with competitive elections as the result. Uncontested candidates must still obtain the required number of votes in the General Assembly, even if such votes have always been successful.7 Therefore, all candidates run campaigns to garner the sufficient number of votes, but with more intense and expensive campaigning by candidates from groups with contested elections.8 5 6

7 8

Security Council Report. ‘Security Council Elections 2017’, Research Report (April 2017), at 7-8. A. Dreher et al, ‘The Determinants of election to the United Nations Security Council’, (2014) 158 Public Choice 51. Studies on the period of the Cold War reveal an over-representation of personnel in UN offices, including the Security Council, from countries close to the US. See M. Singer and B. Sensenig, ‘Elections within the United Nations: An Experimental Study Utilizing Statistical Analysis’, (1963) 17 International Organization 901. This pattern is confirmed in a more recent study, with the time-period extended to 2008, see Y. Iwami, ‘Delegating the Power to Govern Security Affairs: The Composition of the Un Security Council’, (2011) unpublished paper available online, www.rochester.edu/College/ gradstudents/yiwanami/UNSC_members.pdf. Security Council Report, ‘Security Council Elections 2017’, Research Report (April 2017), at 6. Ibid., at 9.

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Put in relation to the principles for consideration set by the UN Charter: the practice of ‘clean slates’ reflects an emphasis on equitable geographical representation, while the latter practice gives members the opportunity to elect a candidate on their actual merits with regard to international peace and security, as well as the other purposes of the UN. The assessment of merits with regard to international peace and security tends to rely on the personnel and financial contributions by the candidate to peacekeeping operations and peace processes.9 The reference to other purposes allows for a broader interpretation, but contributions to development co-operation in terms of Official Development Assistance (ODA) are typically highlighted by candidates within the WEOG. Despite the prevailing pattern that speaks to the advantage of wealth in winning a seat on the Security Council, the previously mentioned defeats of both Australia and Canada underline that the outcome of contested elections is indeed uncertain. The victory of Luxemburg in 2012, with an estimated budget half the size of defeated Finland, and the victory of Sweden in 2016, with an estimated budget less than half of both Italy and the Netherlands respectively, further highlights that it is certainly not all about money.10 This, in turn, points to the relevance of analyzing the campaign process and the campaigns conducted to date. On this topic, previous research suggests that the quality and attractiveness of the conducted campaign, national reputation, and the personality and reputation of individual delegates are of importance.11 Empirical results also point to the relevance of contributions to the UN and the need for contestants to be perceived as ‘good’ members of the UN, in order to successfully compete for office within the organization.12 On national reputation, the claim can run both ways: while a positive reputation certainly can be of assistance, candidates should not rely on an elevated image of their ability to do the job, nor include an ‘excessively complacent view of their own standing’ in campaigns.13

9 10

Ibid., Annex 1, at 11. International Peace Institute, ‘Taking Stock, Moving Forward: Report to the Foreign Ministry of Finland on the 2012 Elections to the United Nations Security Council’ (April 2013); U. Cronenberg-Mossberg, ‘Uppföljning och utvärdering av kampanjen för Sveriges kandidatur till FN:s säkerhetsråd’, (June 2017) Riksdagens utrikesutskott [‘Assessment of the Swedish campaign to the UN Security Council’]. 11 Singer and Sensenig, supra note 6, at 902; Malone, supra note 3, at 8. 12 K.M. Weigert, and R.E.  Riggs, ‘Africa and United Nations Elections: an Aggregate Data Analysis’, (1969) 23(1) International Organizations 19. 13 Malone, supra note 3, at 8.

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There has been no detailed exploration of the relevance of the domestic arena to the success of a state’s candidature. However, the choice to campaign for a seat takes effort and resources from other foreign policy issues, which may raise criticism from the opposition. A defeat may be less politically costly if there has been a recent change of government, and thus an opportunity to put blame on the predecessors.14 3

Increasing Competition over Seats: Why Campaign?

Similar to the striving for office by any political agent, we may assume that the member states of the UN seek representation in the Security Council with some expectation of gaining influence. This ambition is significantly restrained, however, by the veto right that puts effective decision-making power in the hands of the five members with permanent seats. The decision to campaign for a seat makes sense from the view that state representatives consider power and influence as a resource, as a relationship, and as an indication of status. Typically, the theoretical discussion on power in the study of international politics builds on the notion of ‘hard power’: actors gain this ‘ability to get others to do what they would otherwise not do through threats or rewards’ and extensive material resources.15 Certainly, a non-permanent seat brings proximity to power constituted through material resources possessed by the permanent members of the Security Council. Yet the theoretical discussion on power has, in recent years, come to broaden the conceptualization of the notion itself. Beyond power possessed through resources, states might also seek and obtain influence through tactics to establish their own skillfulness, and to undermine similar claims by opponents.16 A non-permanent seat provides a platform for states to establish new relationships through which they might obtain influence by proving their own competence and skills. In recent years, there has also been a renewed academic interest in the role of social recognition

14 15 16

J. Langmore and J. Farrall, ‘Can elected members make a difference in the Security Council? Australia’s experience in 2013-2014’, (2016) 22 Global Governance 59, at 61; Malone, supra note 3, at 9. J. Nye and R. Keohane, ‘Power and Interdependence in the Information Age’, (1998) 77(5) Foreign Affairs 81. R. Adler-Nissen and V. Pouliot, ‘Power in Practice: Negotiating the International Intervention in Libya’, (2014) 20(4) European Journal of International Relations at 895.

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and the quest for status and prestige in international politics.17 This relates to power, as the quest for prestige may be a means to wield influence;18 a kind of asset that state representatives can use to exercise influence in the international sphere but also on the domestic political scene. 4

Sweden’s Bid for an Elected Seat in the Security Council 2017‑18

The Swedish victory in the first round of the elections in 2016 was a surprise to many observers, and welcomed with relief and happiness by the politicians and diplomats involved in the campaign. It was not only a victory for the Swedish government, but it represented a break in a series of Nordic failures to obtain representation on the Security Council, after Iceland was defeated in 2008 and Finland in 2012. Sweden also failed to be elected to the Human Rights Council in 2012. Prior to the 2017-18 term, Sweden had served on the Security Council on three occasions (1957-8, 1975-6 and 1997-8). Sweden launched a candidacy for the term 1993-4 but was defeated by Spain and New Zealand in the 1992 election. The intention to seek office for 2017-18 was declared in 2004. During the campaign, Sweden competed with Italy and the Netherlands for the two WEOG seats. The Netherlands had a record of five previous terms, with 19992000 as the most recent. The Netherlands announced its campaign in 2005.19 Italy had served on the council on six previous terms, with 2007-8 as the most recent. Just after this period reached its end, Italy announced its candidacy for the term 2017-18 and deprived Sweden and the Netherlands of their hope for a clean slate. While many were sure of an Italian victory, Sweden was considered to be competing with the Netherlands for the second seat. These expectations were displaced when Sweden received more than the necessary two-thirds of 17

18

19

J. Bartelson, ‘Three Concepts of Recognition’, (2013) 5(1) International Theory 107; R. N. Lebow, Cultural Theory of International Relations (2008); T. Paul, D. Welch Larson and W. Wohlforth (eds.), Status in World Politics (2014); E. Ringmar, Identity, Interest and Action: A Cultural Explanation of Sweden’s Intervention in the Thirty Years War (1996); E. Ringmar, ‘The Recognition Game: Soviet Russia Against the West’, (2002) 37 Cooperation and Conflict 115. H. Morgenthau, Politics among Nations: The Struggle for Power and Peace (1978, first published 1948); J. Galtung, ‘A Structural Theory of Aggression’, (1964) 1(2) Journal of Peace Research 95; M. Wallace, ‘Power, Status and International War’, (1971) 8(1) Journal of Peace Research 23.  Security Council Report, ‘Security Council Elections 2016’, Research Report (June 2016), at 3.

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votes in the first round.20 The even race between Italy and the Netherlands, when remaining after five rounds of voting, was resolved through a split-term agreement.21 4.1 Campaign Messages of the WEOG Candidates in the 2016 Elections This section describes the Swedish campaign platform and compares it with the platform launched by the Netherlands, and to a more limited extent, Italy.22 The Swedish campaign had a clear emphasis on Sweden as a loyal and dedicated member of the UN. To prove its commitment to the UN’s work on international peace and security, the Swedish campaign pamphlet emphasized its position as number six on the UN donor list, and its personnel and material contributions to UN missions. The historic record of sending ‘Swedish men and women’ to the service of the UN was stated to underline this further. The amount of Swedish ODA was spelled out in order to prove dedication to the other missions of the organization. Sweden highlighted peace, respect for international law, climate change action, human rights and development as the most important goals in world politics. The campaign described Sweden as a strong contender in favour of conflict resolution, a generous asylum policy, dialogue and the worth of small states. In addition, the Swedish pamphlet contained a more open sentence on Sweden as a defender of ‘common values and principles’. This may be seen as a way to underline Sweden’s integrity and willingness to act when necessary. The importance of progressing work towards reforming the UN was emphasized, with improved transparency and effectiveness as the goals. Finally, the Swedish pamphlet made the remark that 20 years had passed since Sweden served on the Security Council, and both other candidates had served more recently. Initially, the Swedish campaign used the slogan: ‘Global commitment, independent voice’. As will be further discussed in the section on the domestic debate, a decision was made to phase out the description of Sweden as an independent voice and to replace it with Sweden 20 21 22

UN Doc. A/70/PV.106 (2016). Security Council Report, supra note 7. For describing the campaigns, we have used the pamphlets ‘Sweden for the UN Security Council’, ‘Kingdom of the Netherlands United Security Council Candidate 2017-2018’, and ‘Italy 2017-2018’. We have also relied on Security Council Report, supra note 19. The slogans are also described to some extent in parliamentary documents, see for example in the Dutch case: Kamerstukken II 2014/15, 34 000 V, nr. 10 and in the Swedish case 2014/15: 422 Kandidatur till FN:s säkerhetsråd, svar från Margot Wallström på skriftlig fråga från Kerstin Lundgren (c); 2015/16: 769 Global commitment, independent voice, svar från Margot Wallström på skriftlig fråga från Sofia Arkelsten (m).

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as a voice with integrity. Whether this change was actually implemented in the campaign that took place in New York is, however, a matter of debate. The Dutch campaign used the slogan: ‘The Kingdom of the Netherlands: Your partner for peace, justice and development’. Similar to Sweden, the Dutch campaign sought to portray the Netherlands as a dedicated member of the UN. Financial contributions to the budget and contributions in terms of personnel and material to peacekeeping missions were stressed. The Netherlands emphasized peace, justice, development, and sustainable development. The Netherlands’ role in strengthening the international legal order was a particularly distinct feature, with the advantage of promoting The Hague as ‘the legal capital of the world’. Security Council reform was also among the prioritized issues. As was revealed by the choice of slogan, the Netherlands presented itself as the Kingdom of Netherlands. As such, the campaign included the Caribbean Islands of Saint Marten, Curaçao and Aruba, who rely on the Netherlands for foreign policy and defense matters. Although in a different manner than Sweden, and despite being a middle power, the Netherlands could thereby also portray itself as a voice for small states. Similar to the Swedish and Dutch campaigns, the Italian campaign pointed to specific measures to portray Italy as a dedicated member of the UN, such as being number ten on the donor list, and the most important Western country in terms of providing support to the UN peacekeeping missions. Consistent with UN values, Italy spoke about peace, anti-radicalization, sustainable development, development, human rights, women’s empowerment, cultural heritage protection and counterterrorism. UN and Security Council reform were declared priority issues, with a change of working methods of the Security Council, and the inclusion of more frequent consultations with member states as examples. Italy presented itself as a Mediterranean state. To conclude, the campaign pamphlets revealed how the candidates sought to portray themselves as good members of the UN by referring to their substantial contributions to international peace and security. They also put forward a number of more or less specified themes that were in line with the broader values of the UN. They also included descriptions of their identity as part of the campaign: Sweden as a small independent state, the Netherlands as the Kingdom of the Netherlands thereby tying the three Caribbean Islands to its candidature, and Italy as a part of the Mediterranean region.

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4.2 Domestic Debate on the Candidature: Sweden and the Netherlands This section describes the political debate in Sweden in respect of its campaign and compares it with that in the Netherlands.23 A Social Democratic government announced Sweden’s intention to seek a seat on the Security Council in 2004, with the support of the political opposition. When it came time to make more detailed plans and initiate the campaign, Sweden had a liberal-right government (2006-14) led by Prime Minister Fredrik Reinfeldt. Reinfeldt’s government planned a rather slim campaign that, in the eyes of the political opposition, appeared delayed. The Social Democrats in particular repeatedly asked the government to reveal its plans for a successful Swedish campaign.24 The Minister for Foreign Affairs, Carl Bildt, explained that Sweden’s CV regarding UN matters would speak for itself. Bildt identified an increasing tendency to spend more and more resources on international campaigns in international forums, a development the government did not want to support by intensifying Sweden’s campaign.25 As concerned the opposition, they did not identify any campaign at all, and expressed their concerns over what they viewed as a lack of interest among leading Swedish politicians. A new government installed in the autumn of 2014 resulted in an increased interest both in UN policy overall and a more ambitious campaign to get Sweden elected to the Security Council. The new government, led by Prime Minister Stefan Löfvén and with Margot Wallström as new Minister for Foreign Affairs, consisted of the Social Democrats and the Green Party. The Moderates, the Liberal Party, and the Centre Party repeated their opposition towards excessive spending on the campaign. The criticism against spending money on the campaign went hand in hand with criticism against a strong focus on the UN in Swedish foreign policy-making. The liberal-right parties feared that

23

24

25

Documents on the Swedish debate in this section are published on the Swedish parliament’s website www.riksdagen.se/. Documents on the Dutch debate in this section are published on the Dutch parliament’s website www.tweedekamer.nl/kamerstukken/plenaire_verslagen. 2012/13: UU15 Mänskliga rättigheter i svensk utrikespolitik [Human rights in Swedish politics]; 2013/14: KU1 Konstitutionsutskottets betänkande [Committee on the Constitution]; 2013/14: 102 Sveriges kandidatur till FN:s säkerhetsråd, interpellation från Urban Ahlin (s) [The Swedish candidature for a seat in the UNSC, major written question put to a minister from Urban Ahlin (s)]. 2013/14: 102 Sveriges kandidatur till FN:s säkerhetsråd, svar från Carl Bildts på interpellation från Urban Ahlin (s) [The Swedish candidature for a seat in the UNSC, answer from Minister for Foreign Affairs Carl Bildt to a major written question put to minister from Urban Ahlin (s)].

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the focus on the EU, which they favoured, would dissolve.26 This was quite opposite to the position taken by the Swedish Democrats, a rather marginalized party in foreign policy,27 who instead feared that Sweden would be a megaphone for the EU in the Security Council.28 Once the Swedish campaign for a seat in the Security Council was up and running, the debate between the government and the opposition revolved around the content and form of the campaign. In terms of content, the Left Party argued that Sweden should use its place in the Security Council to highlight the rights of LGBTQ persons, especially so in conflict zones. The government’s response to the Left Party during the debate focused particularly on women and women’s rights to be targeted by government policy, disclosing a more constricted focus.29 The liberal-right parties hoped that Sweden would work in favor of reforming the UN and the UN system. In their view, the veto right should be limited in its use, as should the use of extensive campaigning for different seats in the UN community.30 In addition, the liberal-right opposition raised concerns with the fact that Sweden had launched its campaign with the slogan ‘Global commitment, independent voice’. This slogan was heavily questioned by the opposition. The reason for the criticism was that Sweden’s overall foreign policy was co-ordinated with the EU. How could Sweden combine co-ordination with the EU and an independent voice?31 The criticism brought forward led to a revision of the slogan. Independence was replaced by the catchword ‘integrity’, signaling that Sweden was a country with a clear and consistent foreign policy not under the rule of others.32 26 27 28 29 30 31

32

2014/15: UU15 FN och mänskliga rättigheter i svensk utrikespolitik [The UN and human rights in Swedish politics]. The Swedish Democratic Party does not have a strong profile in foreign policy and security issues, according to Swedish voters. The co-operation with other parties in these issues is non-existent. 2014/15: UU15 FN och mänskliga rättigheter i svensk utrikespolitik [The UN and human rights in Swedish foreign policy]. 2016/17: UU15 HBTQ-personers åtnjutande av mänskliga rättigheter [LGBTQ persons and human rights]. 2914/15: UU15 FN och mänskliga rättigheter i svensk utrikespolitik [The UN and human rights in Swedish foreign policy]. 2014/15: 422 Kandidatur till FN:s säkerhetsråd, skriftlig fråga från Kerstin Lundgren (c) [The Swedish candidature for a seat in the UNSC, major written question put to a minister from Kerstin Lundgren (c)]; 2014/15: 359 Kampanjen för kandidaturen till FN:s säkerhetsråd, skriftlig fråga från Sofia Arkelsten (m) [The Swedish candidature for a seat in the UNSC, major written question put to a minister from Sofia Arkelsten (m)]. 2014/15: 422 Kandidatur till FN:s säkerhetsråd, svar från Margot Wallström på skriftlig fråga från Kerstin Lundgren (c) [The Swedish candidature for a seat in the UNSC, answer

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In terms of the form of the campaign, the liberal-right parties were critical of the government for not involving and informing the opposition to the extent they wanted. Given the fact that transparency and openness was part of how the Swedish government wanted to transform the UN, the perceived lack of those qualities in the Swedish campaign was used by the opposition to ridicule the government’s position. The opposition accused the government of keeping things secret regarding the campaign, concerning both its content and the different campaign activities. They were also critical of the use of foreign aid funding to finance parts of the campaign, as well as promises by the Swedish government to vote for other countries in other settings if they promised to vote for Sweden, i.e. vote exchange.33 The government responded that it had informed the opposition to the extent that was possible, using the regular channels. In order not to harm Swedish relations with foreign countries, some information was not possible to send to actors outside the Office of Foreign Affairs. The seminar series and the invitations to ambassadors were seen as a way to transfer knowledge regarding poverty and conflict prevention to the poorest countries in the world. According to Margot Wallström and the Minister of Foreign Aid Isabella Lövin, it did not exceed the rules for how foreign aid was allowed to be used.34 To conclude, the political debate on the Swedish campaign for a seat on the Security Council very much followed established cleavages between the parties on foreign policy issues. While there was consensus insofar as all parties supported the Swedish candidature, the liberal-right parties were criticized for being too cautious and unwilling to invest in the campaign, and the Social Democrats and the Green Party for being too generous with public funding. In terms of both the content and the form of the campaign, the parties took different positions. Given the greater focus on the EU among the liberal-right parties, they were more concerned by actions that could be interpreted as

33

34

from Margot Wallström to a major written question put to a minister from Kerstin Lundgren (c)]; 2015/16: 769 Global commitment, independent voice, svar från Margot Wallström på skriftlig fråga från Sofia Arkelsten (m) [Global commitment, independent voice, answer from Margot Wallström to a major written question put to a minister from Sofia Arkelsten (m)]. 2015/16: 1072 Bistånd och säkerhetsrådskampanjen, skriftlig fråga från Sofia Arkelsten (m) [Foreign aid and the candidature for seat in the UNSC, major written question put to a minister from Sofia Arkelsten (m)]; 2015/16: 291 Överstatligt beslutsfattande i FN:s säkerhetsråd med parlamentarisk förankring [Supranational decision-making in UNSC established in the parliament]. 2015/16: 528 FN-ambassadörernas besök, svar från Isabella Lövin på interpellation från Karin Enström (m) [UN ambassadors’ visit, answer from Isabell Lövin to a major written question put to a minister from Karin Enström (m)].

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a hindrance to Sweden’s future endorsement of the EU. Whereas the Social Democrats and the Green Party tended to view the UN as an important global actor where Sweden ought to be present and hopefully influential. They also emphasized that, as a non-NATO member country, Sweden was in a unique position to achieve this. From earlier studies on Swedish foreign policy, we find the same tendency to criticize the government for being reluctant to inform the opposition, or for other similar formal issues of foreign policy decisionmaking.35 Turning to the Netherlands, Prime Minister Jan Peter Balkenende made public the Netherlands’ candidacy for a seat on the Security Council in 2005. At that time, the Dutch government consisted of three parties: Christian Democratic Appeal, People’s Party for Freedom and Democracy, and Democrats 66. In 2014, when the campaign was up and running, the first traces of a domestic debate regarding the campaign emerged. At that time Mark Rutte was the Prime Minister for a government based on the support of the People’s Party for Freedom and Democracy and the Labour Party.36 Hence, both campaigns by the Netherlands and Sweden were led by coalition governments. The intense parliamentary debate on the Swedish slogan ‘Global commitment, independent voice’ found no equivalent in the political debate on the Dutch campaign. The Netherlands also portrayed itself as independent to some extent from the EU and, by referring to the Kingdom, even emphasized its political ties outside of Europe. Pressing questions on how the campaign was proceeding were frequently raised, implying the presence of a political expectation of success, which was not part of the Swedish debate.37 As in the Swedish debate, the Dutch parliament frequently discussed matters relating to the content of the campaign, but even more so in the Dutch case. According to the Minister of Foreign Affairs, Frans Timmermans, if elected the Netherlands would be able to exert more power and promote more of its principles globally.38 More concretely, Timmermans, and later his successor Bert Koenders, discussed the Responsibility to Protect, the enhancement of the ICC, the support to women according to Security Council Resolution 1325,

35 36 37 38

See for example U. Bjereld and M. Demker, ‘Foreign Policy as Battlefield: A Study of National Interest and Party Motives, (2000) 23(1) Scandinavian Political Studies 17. Parliaments and Governments Database, see www.parlgov.org/explore/nld/cabinet/. Kamerstukken II 2014/15, 34 200 V, nr. 1; Kamerstukken II 2014/15, 26 150, nr. 146; Kamerstukken II 2015/16, 34 300 V, nr. 9. Kamerstukken II 2013/14, 33 750 V, nr. 1, 27 of November 2013, Begroting Buitenlands Za­ ken.

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and disarmament in general.39 Hence, more frequently than in the Swedish debate, the Dutch debate addressed substantive themes, as the political opposition demanded the Government to spell out its priorities if the Netherlands won office. There were also questions raised in the Dutch parliament concerning the costs of the campaign. However, it seemed as if the questions regarding the financial status of the project were not asked from the same critical perspective as in Sweden.40 To conclude, the Swedish government faced a more intense critique by the opposition than the Dutch, especially so in relation to the campaign costs and the type of activities that should be financed. The Swedish domestic debate revolved somewhat less around the content of what Sweden would focus on once elected, than the Dutch. It seems as if there was an expectation from the parties and their representatives that the Netherlands would actually win a seat in the Security Council, which was not present in Sweden. 5

Summary and Conclusions: Some Current Estimates of Success and Failure of Campaigns

The Swedish victory in the elections in 2016 was both a surprise to many observers, and a welcomed success by the politicians and diplomats that had been involved in the campaign. The similarities in campaign-messages between the WEOG candidates, both in how they stressed their contributions to the UN and in the themes they emphasized, underline the surprising element of the clear Swedish win. While 128 votes is required (two third majority), Sweden got 134 votes in the first round. The pamphlets of all the three competing countries promote a strong UN record in terms of peace and development, and dedication to reforming the UN and to contributing to the future development of the organization. A seemingly minor difference between candidates relates to their approach on environmental concerns. While the Netherlands and Italy spoke in broader terms of sustainable development, Sweden narrowed in on 39

40

Kamerstukken II 2014/15, 34 000 V, nr. 10; 2015-02-12. Aanhangsel van de Handelingen. Vragen gesteld door de leden der Kamer, met de daarop door de regering gegeven antwoorden; Kamerstukken II 2014/15, 26 150, nr. 144; 2016-03-08. Kamerstukken II 2015/16, 26 150, nr. 150. Kamerstukken II 2014/15, 26 150, nr. 146; Kamerstukken II 2015/16, 34 300 V, nr. 9; 2016-08-11. Wijziging van de begrotingsstaten van het Ministerie van Buitenlandse Zaken (wijziging samenhangende met de Voorjaarsnota). Verslag houdende een lijst van vragen en antwoorden.

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climate change. Climate change is one of the main concerns of many smaller states, as they are vulnerable to its consequences, so this may in fact have been a comparative advantage of the Swedish campaign. The evaluation of the campaign by the Swedish Foreign Ministry highlights this as important. Results from interviews with diplomats exposed to the campaigns indicate that the Swedish campaign was the most convincing on the topic of climate change.41 This might also have helped to promote the role Sweden sought—as the independent voice of small states. The overview of the domestic debate in Sweden reveals debate over a number of issues related to the campaign. The candidature brought to life the conflict between political parties on whether Sweden’s role in international politics should be expressed primarily through membership in the EU, and to what extent an active role within the UN on global issues competes with Sweden’s commitment to the EU. This was not reflected in the Dutch domestic debate. The debate on public spending and the cost of the campaign was another major recurring issue that raised severe criticism. While there was broad agreement between the political parties on the attempt to win a seat, there was certainly not full domestic support by the time of intensified campaign efforts in 2014-15. Domestic criticism regarding financing was much less frequent in the Dutch campaign. The rather limited media coverage in Sweden primarily focused on public spending and whether inappropriate means were used to gather votes. Previous research on the relevance of the domestic arena for the campaigning efforts is limited. The Swedish case reveals that a win can certainly take place in the absence of full-fledged domestic mobilization, but the message in the campaign needs to be right. It is also possible to see the Swedish campaign in light of earlier Nordic campaigns. The Nordic countries co-ordinate their efforts to win international representation, which means that they do not campaign against each other and they share insights from previous experiences. Thus, the Swedish Ministry of Foreign Affairs tried to learn from past Nordic defeats. Iceland failed to get a seat in the Security Council in 2009, and Finland lost in 2012. The Swedish campaign was therefore well aware of the need to be perceived as a listening part-

41

‘Slutsatser från utvärdering av Sveriges kampanj för en plats i FN:s säkerhetsråd 2017-18.’ Foreign Ministry of Sweden, April 2017 [Conclusions from the evaluation of the Swedish campaign for a seat in UN Security council 2017-18. Foreign Ministry of Sweden April 2017]. See www.regeringen.se/artiklar/2017/03/slutsatser-fran-uds-interna-utvarderingav-arbetet-med-kandidaturen-till-sakerhetsradet/.

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ner, and to continue campaigning until the day of the election.42 Suggestions for future research on the success and failure of states’ campaigns include the relevance of the foreign policy profile to the campaign message, and the role of politicians, diplomats and other delegates to demonstrate the required competences and commitments for membership on the Security Council.

42

International Peace Institute, supra note 10. Foreign Ministry of Sweden (April 2017), www.regeringen.se/artiklar/2017/03/slutsatser-fran-uds-interna-utvardering-av-arbetetmed-kandidaturen-till-sakerhetsradet/.

Chapter 5

More Non-Permanent Members? On the Need for a Second Enlargement of the Security Council A Comparative Perspective Niels Blokker* 1

Introduction

A better understanding of the role of non-permanent members of the UN Security Council is useful in the context of the discussions and negotiations on changing the size and composition of the Council. Such discussions and negotiations have taken place in particular since the 1990s, fuelled by a more active role played by the Council since the end of the Cold War and the criticism that its size and composition no longer adequately reflect UN membership as a whole. Against this background, this brief chapter will compare the size of the Security Council to that of non-plenary organs of other universal organizations. In addition, it will pay particular attention to the reform proposals that were probably closest to being accepted: those made in the 2004 report of the High-level Panel on Threats, Challenges and Change.1 This report specifically suggested to increase the number of members of the Security Council, partly by adding non-permanent members. The most appropriate size and composition of an international organ depends on its task. As stated in Article 24, paragraph 1 of the UN Charter, ‘[i]n 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’ (italics added). The requirement of ‘prompt and effective action’ explains why the Security Council was created as a non-plenary organ. On 26 June 1945, the Charter was signed by the representatives of 50 countries, who agreed that the Security Council *

1

This chapter is partly based on N.M. Blokker, ‘Towards a second enlargement of the Security Council? A comparative perspective’, in N.M. Blokker and N.J. Schrijver (eds.), The Security Council and the Use of Force (2005), 253-60. I thank Marietta Hristovski for research assistance. A More Secure World: Our Shared Responsibility. Report of the High-level Panel on Threats, Challenges and Change, UN Doc. A/59/565 (2004).

Schrijver and Blokker (eds.), Elected Members of the Security Council: Lame Ducks or Key Players? © 2020 Koninklijke Brill nv. isbn 978-90-04-42537-8. pp. 71-82. | DOI:10.1163/9789004425392_006

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would be composed of 11 members, including five permanent members having the right of veto. The need to be able to take prompt and effective action could be an argument in favour of a very small Security Council, having a few members only. However, it is clear that the Council should have a certain minimum number of members, because UN members agreed ‘that in carrying out its duties under this responsibility the Security Council acts on their behalf’.2 The Security Council must represent the entire UN membership. It would be difficult to see how it could do so if it would have, for example, only three, five or even seven members. While such a small number of members would probably make it easier to take ‘prompt and effective action’, it would be much more difficult for all the 50 original members of the UN to ‘recognize’ themselves in the decisions of the Council, and to feel that it is acting on their behalf. At the creation of the UN in 1945, the agreed size of the Council (11 members) amounted to 22 per cent of the total number of states that signed the Charter. Less than 20 years after its creation, membership of the UN had more than doubled: in 1963 it had 113 member states. As a result, it was considered necessary to expand two of the UN’s non-plenary organs, ECOSOC and the Security Council. On 17 December 1963, the General Assembly adopted Resolution 1991A, in which it increased the number of members of the Security Council to 15, by adding four non-permanent members. This resolution considered that ‘the present composition of the Security Council is inequitable and unbalanced’, and recognized ‘that the increase in the membership of the United Nations makes it necessary to enlarge the membership of the Security Council, thus providing for a more adequate geographical representation of non-permanent members and making it a more effective organ for carrying out its functions under the Charter of the United Nations’.3 However, while the increase to 15 members made the Security Council more representative, seen as a percentage of total UN membership, this increase did not at all make the Council ‘as representative’ as it was in 1945. At the creation of the UN, 11 members amounted to 22 per cent of the total number of states that signed the Charter, whereas 15 members amounted to only 13 per cent of all UN members in 1963. The UN now has 193 member states. Its Security Council still has 15 members, which is now less than eight per cent of UN membership as a whole. While it is obvious that there is no rule of any nature saying that non-plenary organs of international organizations must have at least a certain percentage 2 3

1945 UN Charter, 1 UNTS XVI, Art. 24(1). UN Doc. A/RES/1991A (XVIII), preamble.

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of all the members of the organization, it is clear that a reduction from 22 per cent in 1945 to 13 in 1963 and to eight at present is significant and that the longstanding calls for expanding Security Council membership are justifiable. It is the aim of this brief chapter to put these figures and developments in perspective, by comparing the size of the Security Council to that of non-plenary organs of other universal organizations, both looking at the situation in 1945 and how this has changed over time. 2

Effective and Representative?

Since 1990 the Security Council has become much more active than in the preceding 45 years of its existence. It has frequently used its extensive powers under the Charter. In many resolutions the Council has demonstrated its ability to agree on the use of force when necessary. This is one of the reasons why many academics and governments concluded that—leaving aside important exceptions such as the failure to prevent the genocide in Rwanda—the Security Council generally performed its functions in the 1990s and the early years of the 21st century better than before.4 While the functioning of the Council has become more cumbersome in recent years, as demonstrated by the frequent use of the veto with regard to resolutions proposed to deal with the war in Syria, the Council is still much more active than it used to be during the Cold War era. The vigorous role played by the Council in particular since 1990 has amplified earlier calls for enlarging its membership. Those in favour of enlargement claim that, now that the Council has become much more active, there is a corresponding greater urgency to make it more representative of UN membership as a whole and perform its functions with the requisite legitimacy. In 1992, the General Assembly referred to the following reasons for such greater urgency: ‘the increasingly crucial role of the Security Council in maintaining international peace and security’ and ‘the changed international situation and the substantial increase in the membership of the United Nations’.5 In 1993, the Assembly decided to establish the Open-ended Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council, ‘to consider all aspects of the question of increase in the membership of the Security Council, and other matters related to the Security 4 5

E.g. the government of the Netherlands in a letter to Parliament, 1 June 2004, Doc. TK 2003-2004, 24832, nr. 5, at 6. UN Doc. A/RES/47/62 (1992).

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Council’.6 So far there has been no agreement within this Working Group on the enlargement of Security Council membership.7 If the present size and composition of the Council no longer adequately reflect UN membership as a whole—also taking into account that 80 new members have been admitted to the UN since agreement was reached in 1963 on the first, and so far only, enlargement of the Council—the next question is whether increasing Council membership might solve one problem only to create a new one, i.e. by increasing the risk of new stalemates in decision-making within the Council. A concern often expressed centers on those instances where the Security Council failed to act or where its actions were ineffective. Seen exclusively against this background, it would seem hazardous to increase the number of members of the Security Council. If, for example, the Council would have had 24 members since 1990, would this not have prevented it from adopting some or many of the resolutions it now has been able to adopt? To the extent that the Council is criticized for not always being able to act, or not acting effectively when necessary, is it not likely that, having 24 members, the Council will be ineffective in more cases? These rhetorical questions are based on the presumption that it is easier to reach agreement with 15 members than with 24. However, it is generally accepted that the question of the enlargement of the Security Council cannot exclusively be considered from this perspective. The Council must also be (seen to be) legitimate and representative. These requirements are important in themselves, but they are also directly related to the requirement of effectiveness. After agreement was reached in 1963 on the expansion of membership of ECOSOC and of the Security Council, Secretary-General U Thant wrote: ‘[I] am sure that such expansion, which will make it possible to secure more adequate geographical representation in the two Councils, will contribute to the greater effectiveness of both bodies’.8 It is more difficult for Security Council resolutions to be fully and swiftly implemented if the Council is widely held to be unrepresentative than if it is perceived to carry 6 7

8

UN Doc. A/RES/48/26 (1993). See the annual reports by the Working Group to the General Assembly, e.g. UN Doc. A/53/47 (1999), UN Doc. A/56/47 (2002). See further O. Fleurence, La réforme du Conseil de sécurité – L’état du débat depuis la fin de la guerre froide (2000); B. Fassbender, UN Security Council Reform and the Right of Veto – A Constitutional Perspective (1998); B. Simma et al (eds.), The Charter of the United Nations (2012), 756-60 ; R. Higgins et al. (eds.), Oppenheim’s International Law—United Nations (2017), 67-69 (and the literature mentioned at 62-63). Introduction to the annual report of the Secretary-General on the work of the Organization, UN Doc. A/5801/Add.1 (1964), at 11 (italics added).

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the trust of UN membership as a whole.9 ‘More representative’ therefore does not necessarily amount to ‘less effective’. A larger Security Council may also be a more effective Security Council, if the enlargement restores the legitimacy the Council needs to perform its functions. These questions of effectiveness and representativeness have previously been raised. This happened only to a rather limited extent at the creation of the UN. The text of the Dumbarton Oaks proposals (1944) already referred to five permanent and six non-permanent members.10 At the 1945 San Francisco Conference a number of delegations, in particular those from Latin America, tabled amendments to the Dumbarton Oaks proposals. These amendments either proposed to increase the total number of members of the Council (varying from 12 to 15 seats, instead of 11), or suggested a larger number of nonpermanent members (nine or 10, instead of six). However, at the end of the day these suggestions did not receive sufficient support.11 Next, the issue of enlarging Security Council membership was discussed for years before agreement was reached in 1963 to increase the original number of 11 members to the present 15. Since 1956 in particular, Latin American and Western European countries have favoured an increase. The Soviet Union and its allies initially rejected this, mainly because the Chinese communist government was not accepted as the representative of China in the UN. Only in 1963 did the negotiations gain momentum when African and Asian countries— having been admitted to the UN in previous years and feeling particularly underrepresented in the Security Council—strongly pressed for a larger Council. In December 1963 the General Assembly adopted Resolution 1991A, increasing the number of members to 15.12 This resolution was adopted notwithstanding considerable opposition from four permanent members of the Council: the Soviet Union and France voted against, the UK and the US abstained. The Soviet Union was against any increase of Security Council membership. The US could agree only to an increase with two members, indicating that—as reported in 9 10 11 12

As stated in 2004 by the High-level Panel on Threats, Challenges and Change: ‘the paucity of representation from the broad membership diminishes support for Security Council decisions’ (report of the Panel, supra note 1, para. 245). ‘Proposals for the establishment of a general international organization’, adopted by China, the Soviet Union, the UK and the US at Dumbarton Oaks, 7 October 1944. See in particular Chapter VI, Section A of these proposals. UNCIO Documents, Vol. XI (1945), at 762. See also ‘Het Ontstaan der Verenigde Naties’, Publication No. 23 of the Dutch Ministry of Foreign Affairs (July 1950), at 57-60. See for a brief overview of the negotiations preceding the adoption of this resolution: Yearbook of the United Nations 1963, at 80-87. Voting results: 97 in favour, 11 against (Soviet Union and its allies, France), 4 abstentions (Portugal, South Africa, UK and US).

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the UN Yearbook—‘[i]n the interest of its effectiveness the Security Council should be kept as small as possible’.13 This dilemma of sailing the best course between the Scylla of effectiveness and the Charybdis of representativeness is by no means unique to the Security Council. Essentially all universal international organizations have faced and are facing this dilemma with regard to the size and composition of their nonplenary, executive organs. It may therefore be helpful, in order to put these Security Council discussions in a wider perspective, to briefly examine how other organizations have dealt with this dilemma. One preliminary objection to such a comparison may be that the Security Council is a unique body. The primary responsibility to maintain international peace and security can hardly be compared to the work of non-plenary organs in the area of health or civil aviation. This responsibility is of paramount importance. It calls for the strictest possible requirements regarding effectiveness and therefore justifies a relatively small size. Therefore, it is in the collective interest of UN membership as a whole to have a small-sized Security Council. However, while this may be true, the importance of its tasks to all states, perhaps even more for small states than for superpowers, makes it equally or even more important for this organ as compared to others to be representative. Furthermore, the tendency of the Council to now also sometimes perform a quasi-legislative role (e.g. Resolution 1373 and Resolution 1540) makes it more important to be representative. In addition, is it really correct to assume that the Security Council would need to meet a higher standard of effectiveness than other non-plenary organs of universal organizations? 3

A comparison

Table A below shows the number of members of the principal non-plenary organs of universal organizations in the early postwar period and at present.14

13 14

Yearbook of the United Nations 1963, at 82. Figures for the early postwar period have been taken from the first Yearbook of the United Nations (1946-1947) and from H.G. Schermers, De gespecialiseerde organisaties – Hun bouw en inrichting (1957).

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More Non-Permanent Members? Table A

Organizationa

Organ

Early Postwar size

Present Size

ITUb (193) UPUc (192) ILOe (187) FAOg (195) IBRDh (189) IMFi (189) ICAOj (192) UNESCOk (195) WHOl (194) IMOm (174) WMOn (191) IAEAo (170) IDAp (173) IFCr (184)

Council Councild Governing Body Council Executive Directors Executive Board Council Executive Board Executive Board Council Executive Council Board of Governors Executive Directors Board of Directors

18 20 32 (16 + 8 + 8) 15 12 12 21 18 18 16 14 23 12q 15

48 41 56 (28 + 14 + 14)f 49 25 24 36 58 34 40 37 35 25 25

a b c d e f

The present number of members of the organizations is included in brackets. International Telecommunication Union. Universal Postal Union. Now named Council of Administration, formerly the Executive Council. International Labour Organization. In 1986 amendments were adopted to the ILO Constitution, according to which the number of members of the Governing Body would be doubled. However, this amendment is not expected to enter into force. g Food and Agriculture Organization. h International Bank for Reconstruction and Development. i International Monetary Fund. j International Civil Aviation Organization. k UN Education, Scientific and Cultural Organization. l World Health Organization. m International Maritime Organization. n World Meteorological Organization. o International Atomic Energy Agency. p International Development Association. q See Yearbook of the United Nations 1960, 652-53. r International Finance Corporation.

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Table B below shows the number of members of the principal non-plenary organs of other universal organizations, either specialized agencies created after the early UN years or selected other universal organizations. The World Trade Organization (WTO) is not included in this list because it does not have a nonplenary policy-making organ. This is mainly explained by the wish of the US during the travaux préparatoires for the WTO (mid 1990s) to ensure that the WTO remained a member-driven organization where all key decisions would be taken by consensus from all the members.15 Table B

Specialized agencies Organ WIPOs (191)

Initial size

Present size

27 (1970)t 33 (1975)

83 35

53 (1985) 18 (1977)

53 18

Initial size

Present Size

IFADw (176)

Coordination Committee Executive Council Industrial Development Board Executive Board

Other Universal IOs

Organ

IOMx (169) OPCWz (192) CTBTOaa (183)

Executive Committee 9 (1951) Executive Council 41 (1997)

UNWTOu (158) UNIDOv (168)

IRENAbb (157)

15

Executive Council Council

(51) 21 (2011)

33 (until 2013)y 41 (Constitution has not yet entered into force) 21

V. VanGrasstek, The History and Future of the World Trade Organization (2013), 65-73. According to Kuijper, ‘[t]he damage that the absence of this organ [– a non-plenary organ –] that exists in all other world-wide organizations with broad membership does to the organization and to the role of the Director-General and the Secretariat is one of the taboos of the organizational culture of the WTO’, in P.J. Kuijper, ‘The Sutherland Report and the WTO’s Institutional Law – Do Parallels with other International Organizations Help?’ (2005) 2 IOLR 191-99 (quotation at 196).

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s World Intellectual Property Organization. t See Industrial Property (Monthly Review of the United International Bureaux for the Protection of Intellectual Property (BIRPI)), 9th year, No. 11, November 1970, at 361. u UN World Tourism Organization. v UN Industrial Development Organization. w International Fund for Agricultural Development. x International Organization for Migration. y IOM’s Executive Committee was abolished in 2013 (because it was considered largely redundant). z Organization for the Prohibition of Chemical Weapons. aa Comprehensive Nuclear-Test Ban Treaty Organization. bb International Renewable Energy Agency.

The figures in Tables A and B are useful to put into perspective the number of members of the Security Council: 11 since its first meeting in 1946, 15 since 1965.16 The original number of 11 members is small but not exceptional when compared to the original number of members of the non-plenary organs mentioned in Table A. The World Bank had 12 Executive Directors and the IMF Board had 12 members. The non-plenary organs of FAO, WMO and IMO originally were also rather small-sized. However, if the figures of the present membership of these non-plenary organs are compared, the difference between the size of the Security Council and that of these other non-plenary organs is much more significant. Seen from this perspective, the present number of members of the Security Council is exceptionally small. Since 1945, all constitutions of the organizations mentioned in Table A have been amended to increase the number of members of their principal non-plenary organs. In most cases, these numbers have been doubled or tripled, reflecting the large inflow of new members into these organizations. At present—as was the case in the early postwar period—the smallest non-plenary organs in this list are those of the IMF and of the World Bank. Their present size corresponds to a frequently proposed future size of the Security Council.17 The overview given in Table B leads to similar conclusions. For only two of the organizations mentioned in this Table, IFAD and IRENA, the number of members of the non-plenary organ is small (respectively 18 and 21). The present size of the smallest non-plenary organs in Table A, those of the fi16

17

The amendment of the Charter increasing the number of members of the Security Council was adopted in 1963. It entered into force on 31 August 1965. However, the General Assembly elected four additional members of the Council only in December 1965. The Security Council for the first time met with 15 members in January 1966. See B. Simma, The Charter of the United Nations – A Commentary (2002), 437-38. The Netherlands government in a letter to Parliament refers to 24 members (supra note 4, at 6).

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nancial agencies, also corresponds to proposals made in 2004 by the High-level Panel on Threats, Challenges and Change. While this Panel was unable to agree on one recommendation for a future composition of the Security Council, the two options it presented (Models A and B) both result in a total number of 24 members.18 The way in which the proposed number of Security Council members is increased from 15 to 24 is different in Models A and B of the High-level Panel report. Model A provides for six new permanent seats (without the right of veto) and three new two-year term non-permanent seats. Model B does not provide for new permanent seats, but for eight four-year renewable-term seats and one new two-year non-permanent (and non-renewable) seat. The Panel also recommends how the new permanent seats in Model A and the new fouryear renewable-term seats in Model B are divided among major regional areas. An important difference between Models A and B is that Model A is more rigid. If in the future one or more of the six new permanent members lose the qualities on the basis of which it became a permanent member, and if it is decided that it therefore should no longer be a permanent member of the Council, the Charter would have to be amended again. Model B is more flexible in this regard, since it does not create new permanent seats. In case a state occupying a four-year renewable-term seat loses the qualities on the basis of which it once was elected to this seat, it would simply not be re-elected if it is decided that it should no longer be on this seat; no Charter amendment would be necessary. However, perhaps most striking are the similarities between Models A and B. First of all they do not give the right of veto to other states than the present P5. The Panel explicitly indicates why: ‘the institution of the veto has an anachronistic character that is unsuitable for the institution in an increasingly democratic age’.19 Secondly, both Models suggest a total number of 24 members. The Panel report does not give any explicit explanation for suggesting this particular number. It only lists four principles that must be respected in reforming the Council. Such reforms: 1. should increase the involvement in decision-making of those who contribute most to the UN financially, militarily and diplomatically; 2. should bring into the decision-making process countries more representative of the broader membership, especially of the developing world; 3. should not impair the effectiveness of the Security Council; and 4. should increase the democratic and accountable nature of the Council.20 18 19 20

Report of the High-level Panel, supra note 1, paras. 244-60. Ibid., para. 256. Ibid., para. 249.

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Models A and B are suggested by the Panel and therefore in its view respect these principles. A new size of 24 members is seen as the best possible compromise respecting these four principles. The recommendation by the Panel in both Model A and Model B that the Security Council should have 24 members is in line with the trend in universal organizations within the UN family during the past decades, to increase membership of their non-plenary organs. The present number of members of the Security Council is exceptionally low if compared to the present size of these organs. There is of course no ‘must’ whatsoever regarding the implications of this finding: there is no rule prescribing that all non-plenary boards of universal organizations including the UN would now need to have a minimum number of members. However, this comparison offers at least an indication of how the balancing of effectiveness and representation is weighted in other contexts, and puts the debate concerning the enlargement of the Security Council in a wider perspective. 4

Conclusion

The other chapters in this book give an impression of the role that non-permanent members play in the Security Council. Obviously it is uncertain whether this role would be similar or different in a 24-member Security Council. On the one hand, if the Security Council would have nine more non-permanent members serving a two-year term, this could reduce the role that each of these 19 non-permanent members could play, for example because they would less often act as President of the Council.21 On the other hand, a larger number of non-permanent members could, if they were united, perhaps put more pressure on a reluctant permanent member not to use its veto. But this is mere speculation. In the reform proposals suggested by the High-level Panel, both Model A and Model B include suggestions to have additional two-year term non-permanent members: three in Model A, one in Model B. The role that such additional non-permanent members could play might not be unlike that of the current non-permanent members, the main difference being the changed dynamics as a result of the enlargement of the Council. There is considerable difference between a two-year term for non-permanent members (three in Model A, one in Model B, in addition to the ten current non-permanent members) and the proposed eight four-year renewableterm seats in Model B. A term of four years, with the possibility of one or more 21

L. Sievers and S. Daws, The Procedure of the UN Security Council (2014), 674.

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further four-year terms, allows the states concerned to build up the necessary Security Council experience and use it much longer than at present. Compared to permanent members, two-year term non-permanent members are to some extent passersby. As other chapters in this book demonstrate, they may play a useful role (for example benefiting from a certain expertise or focusing on a particular niche). However, no matter how useful, this role is limited to a period of two years. Four years, possibly extended for one or more further terms, would allow non-permanent members—much more than today—to obtain the necessary experience, build some institutional memory, become involved more deeply in the Council’s work and thereby improve its functioning.22 In view of this significant difference with a two-year term, many of the observations made in the other chapters of this book may not apply to this four-year term suggestion by the High-level Panel, or may only apply to a limited extent. The conclusion of this brief contribution is therefore that an enlargement of the Security Council would be fully in line with the (changes in) membership of non-plenary organs of other universal organizations since 1945. Seen from this perspective, the present number of members of the Security Council is exceptionally small. If an enlargement of the Council would include more two-year non-permanent seats, the additional non-permanent members could play a role not unlike that of the current non-permanent members, the main difference being the changed dynamics as a result of the enlargement of the Council.

22

See E.C. Luck, ‘The Security Council at Seventy: Ever Changing or Never Changing?’, in S. von Einsiedel, D.M. Malone, and B.S. Ugarte (eds.), The UN Security Council in the 21st Century (2016), 195-214, in particular at 204.

Part II Elected Members: Inside and Outside Experiences

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Chapter 6

Pursuing Peace and Justice on the Security Council: The Canadian Experience Alistair Edgar 1

Introduction

When recently-elected Prime Minister Justin Trudeau declared in March 2016 that Canada would seek a seat at the UN Security Council for the 2021-22 term, it was welcome news for many who hoped for, and valued, a Canada that would re-engage with the UN and other international organizations as a constructive partner. This came after a decade of criticism, disdain and often hostile lecturing directed at the UN and its member states by the Conservative Party government of Stephen Harper. Surprisingly, the Harper government had sought to win a Council seat for 2011-12 but was soundly defeated in the Security Council election in late 2010 by Germany and Portugal, withdrawing after failing to win sufficient votes in the first two rounds. That defeat marked the first time that Canada had lost such a campaign, after winning a Council seat in the first round of elections in each of the previous six decades. As former ambassador to the UN David Malone noted of what lay behind that humiliating defeat for Canada, which only further deepened Prime Minister Harper’s long-standing dislike of the international body and the multilateral politics around it, ‘nobody likes a scourge.’1 Prime Minister Trudeau’s announcement in 2016 was met with general appreciation by those paying attention in Canada or internationally, except by die-hard opponents at home of the new Liberal government and its relatively young leader (and perhaps understandably, by the Norwegians and Irish who will be Canada’s competition for the two seats coming open in 2021-22). However, even many of those who favored active Canadian re-engagement with the UN also expressed some cautionary views on the expected nature and costs of the election campaign process, set against anticipated benefits of success. Whereas the other regional groupings normally advanced their selected candidates on unopposed slates through internally agreed processes, the Western European and Other Group (WEOG) election campaigns involve multiple can1

D. Malone, ‘Multilateralism in the Age of Trump’, (2016) 24(9) Literary Review of Canada 26.

Schrijver and Blokker (eds.), Elected Members of the Security Council: Lame Ducks or Key Players? © 2020 Koninklijke Brill nv. isbn 978-90-04-42537-8. pp. 85-98. | DOI:10.1163/9789004425392_007

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didates for the two available regionally-designated Council seats—as will be the case for 2021-22. The search for votes then regularly costs WEOG candidate countries several millions of dollars in campaign staff salaries and special events designed to win other UN member delegations’ support, as well as the expenditure of significant political and economic capital in bilateral or multilateral side agreements. Those advocating caution questioned whether elected members of the Security Council in 2017 onwards still would have real opportunities to achieve worthwhile policy objectives inside that deeply politicized 15-member body. Their core argument was that the worsening contemporary politics of the Security Council’s ‘Permanent-5’ (P5) members left little or no room for initiatives or leadership by ‘Elected-10’ (E10). In this view, increasingly deep divisions between the US and Russia over major security issues such as international intervention in the ongoing conflict in Syria, Russian annexation of Crimea, and reported Russian efforts to undermine political and economic stability in its East European neighbors—whose governments had leaned towards membership of NATO and the EU after the collapse of the Soviet Union—were taking the Council back to the days of Cold War impasse. In this context, these critics or cautious skeptics asked, was joining the game really worth the candle? For Canada and the Trudeau government, it appeared, the calculated answer to that question in 2016 was ‘yes’. 2

The ‘E10’ on the Security Council: Opportunities and Limitations

One possible response to these concerns about the political space available for constructive actions in the Council, of course, is that relationships and circumstances in international relations can change—quite rapidly—in ways that nobody anticipates. The collapse of the Soviet Union and the end of the Cold War, a massive structural change in world politics, was neither predicted nor expected by scholars or practitioners, including so-called Kremlinologists. The terrorist attacks against the US in September 2001, and the ‘global war on terror’ that US President George W. Bush then began in response, also shifted states’ calculations of alliances and interests—which then were reshaped once again in 2003 by the political and ideological fallout from the divisive, illegal US-led invasion of Iraq. The election of Barack Obama as US President—and the first black American to be elected to that office—led to another change in American leadership style towards multilateralism, and to new diplomatic openings. The unexpected 2016 election victory of Donald Trump—possibly aided by a Russian disinformation campaign—on an agenda of aggressive, but

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incoherent and often chaotic, ‘America First’ sentiment often expressed in racist terms, has left Western allies as well as others uncertain of American foreign policy. Even the reliability of international treaties and agreements previously signed by Washington, whether with allies or with rivals and purported enemies, is in doubt, as President Trump appears to be fixated with dismantling his predecessor’s international and domestic accomplishments. Set against these types of major shifts in power structures and relationships, as well as states’ domestic political contexts, it would be difficult to argue categorically in 2016 or 2017, about how the politics of the Security Council will look in 2021-22, and what that may mean for the E10 (or for the P5). Instead, a practical approach is to take the future as a ‘known unknown’, to paraphrase former US Secretary of Defense Donald Rumsfeld’s infamous and evasive, but widely cited, answer during a 2002 Department of Defense press briefing about alleged Iraqi weapons of mass destruction. Knowing that things can change in unexpected and unpredictable ways, a surer approach to considering whether to undertake an E10 election campaign which takes place over several years in advance of the anticipated vote, is to decide if Council membership might or could offer a venue, and an opportunity, to have a voice in shaping important issues on the global security agenda that also matter to your country. Reflecting on Australia’s experience as an elected Council member in 201314, John Langmore and Jeremy Farrall suggested that ‘the influence of elected members is a product of the strength of their own determination’, and noted that ‘E10 passivity and reluctance to assert either principles or even their own interests’ has been a repeated limitation on their influence.2 They recognized as well, that the principle and unavoidable constraint facing any elected member seeking to pursue an independent initiative in the Council that diverged from the interests of the P5, is the material or ‘hard’ power of the permanent members. This informs how the latter’s global political, economic and military resources (especially the US and Russia, but increasingly also China) shape other governments’ initial calculations of interest. Institutionally, of course, within the Council the P5 may exercise, and always possess, the threat of the veto, as well as possessing greater institutional knowledge and a shared interest in maintaining P5 control over the Council agenda. 2

See J. Langmore and J. Farrall, ‘Can Elected members Make a Difference in the UN Security Council? Australia’s Experience in 2013-2014’, (2016) 22(1) Global Governance 59, at 73; also J. Langmore and J. Farrall, ‘Can Elected Members Make a Difference in the UN Security Council? Australia’s Experience in 2013-2014’, Notes for a Roundtable (22 January 2016), Australian Mission to the UN, New York, supported by ACUNS, One Earth Future, and FES-New York.

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According to Langmore and Farrall, members of the E10 do have a number of sources of potential influence in the Council, even though they always operate within, or simply with awareness of, these general constraints. The elected members can broaden and deepen the Council’s knowledge of issues on its agenda, as they bring new regional experience with them. Elected members also may not have the limitations of the vested or historically entrenched interests and rivalries that P5 states may have on international issues, and thus can have space (and possibly, credibility) for innovative thinking, if they choose to make use of it. In terms of Council procedures, elected members all will take turns as Council President for at least one month of their 24-month term, giving them greater control over setting the Council agenda; and E10 members often have responsibility for chairing Council committees, giving them greater influence over those specific matters. Finally, Langmore and Farrall observe, elected members may be ‘penholders’ on particular topics—as Australia was on Afghanistan, taking over that role from outgoing WEOG E10 member Germany.3 3

Canada on the Security Council: Good, Bad, Ugly, and Being There

If Canada’s election campaign for 2021-22 succeeds, it will join a Council on which it last held an elected seat more than two decades earlier. Before the failed campaign by Stephen Harper’s Conservative government for a seat in 2010, Canada had sat as an E10 member in every previous decade, and in each case had been elected on the first ballot: in 1948-49, with General Andrew McNaughton serving as Canada’s Ambassador and Permanent Representative; in 1958-59, with Charles S.A. Ritchie; in 1967-68, with George Ignatieff; in 1977-78, with William H. Barton; in 1989-90, with Yves Fortier; and in 1999-2000, with Robert Fowler and then Paul Heinbecker—making the latter the last Canadian Ambassador to sit as an E10 member of the Security Council for (at least) the next two decades. The analysis here will focus on that last two-year term, in 1999-2000—that is, before the resurgence of Russian military assertiveness in Eastern and Central Europe under President Putin; before the terrorist attacks of September 2001 and the ‘global war on terror’; before the US invasion of Iraq, or the subsequent destabilization of the Middle East with the so-called Arab Spring; before the UK’s ‘Brexit’ vote; and before Donald Trump left America’s allies deeply uncertain about the reliability of any of their relationships with Washington. 3

Ibid., 64.

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It was, however, a time when the international community—and especially the UN—still was reeling from the recent genocide in Rwanda, the long and bitter conflict in Bosnia including the mass murder of Bosnian Muslim men and boys by Bosnian Serb forces in Srebrenica, and rising tensions over Kosovo that also pitted the US and NATO against Russian support for Serbia’s President Slobodan Milosevic. If that list of international security crises, and crises of international peace and justice suggest anything, it may be reasonable to say that there is never an ideal time—if by ‘ideal’ one means a period of peaceful, just, and calm international affairs—to sit on the Council. 3.1 The election campaign and Canadian agenda-setting Evaluating the last of Canada’s terms on the Council, Michael Pearson observed that Canada had benefited in its campaign, and subsequently in its ability to help shape the Council’s agenda, from being a well-regarded member state with a strong track record of reliable and constructive engagement with (and within) the world body.4 Ottawa’s Permanent Representative, Ambassador Robert Fowler, was well known and widely respected in New York, having been Canada’s representative since 1995; and he was supported by an activist Foreign Minister, Lloyd Axworthy, who had held his ministerial role since early 1996. At home, the notion that Canada should—indeed, that Canada ought to—be actively engaged at the UN, despite the international body’s recent failings and its ongoing financial shortfalls, enjoyed consistent bipartisan political support at the federal party level, and widespread agreement amongst the Canadian population. By the later 1990s, some parts of the Canadian government, especially in the Department of National Defence following its dismal experiences with the failed UN missions in Rwanda (UNAMIR) and Bosnia (UNPROFOR), were having second thoughts about the value or the wisdom of engaging in future UN peacekeeping operations and maintaining Canada’s leading historical role in that high-profile dimension of UN activities. However, such doubts had not yet percolated into wider disenchantment, let alone the anti-UN hostility that would be a hallmark of the Harper government after his election in 2006. In October 1998, it was a combination of ‘fate and will’—being in the right place at the right time, with some of the right ideas and the right people—that was enough to have the Canadian bid for the Council be broadly supported once

4

M. Pearson, ‘Humanizing the UN Security Council’, in F.O. Hampson, N. Hillmer, and M.A. Molot (eds.), Canada Among Nations 2001: The Axworthy Legacy (2001), 128.

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again, obtaining 131 positive votes on the first ballot, which placed Canada well ahead of competing bids from the Netherlands and Greece.5 In its pursuit of the E10 seat for 1999-2000, Pearson notes that what was unusual about the Canadian campaign was Foreign Minister Axworthy’s promotion of an explicit and ambitious agenda, which Canada would pursue at the Council upon its election. Rather than playing safe by adopting a neutral position and relying on its historical credentials as a constructive and balanced partner— what might have been expected by other UN member states, and what would have been relatively easily justified given Canada’s typical ‘middle power’ image6—Axworthy chose when addressing the UN General Assembly in September 1998 to lay out a clear three-point agenda that he said his government would pursue if elected to the Council. Canada’s three-pronged agenda would be first, working to achieve greater transparency in the work of the Council; second, increasing the credibility and effectiveness of the Council; and third, ensuring that Canada’s (and Minister Axworthy’s) human security agenda would be applied in practice in Security Council debates and resolutions.7 This was to some degree a calculated risk on the part of the Foreign Minister and his election campaign team, as such an agenda might deter some states, including amongst the P5, from supporting the Canadian bid. If those states nonetheless supported the election bid, however, their votes in favor could add credibility to Canada’s voice and its agenda at Council meetings. Of course, the Canadian team preparing its campaign strategy was well aware, too, that it was not the only non-P5 member of the UN that felt the Council had to improve both its transparency in procedures and in decision-making, and also its credibility and effectiveness. At least since the UN General Assembly had begun debating Council reform in the early 1990s, several groups’ proposals to reform the Council had included discussions of how to reform that body’s transparency and its working methods, as well as presenting different suggestions regarding the perennial issues of membership and the veto.8 5 6 7

8

Ibid., 127. See A. Chapnick, ‘The middle power’, (1999) 7(2) Canadian Foreign Policy 73, and J. Ravenhill, ‘Cycles of Middle Power Activism: Constraint and Choice in Australian and Canadian Foreign Policies’, (1998) 52 Australian Journal of International Affairs 309. For a useful examination of the human security concept, which also argues that the idea of a human security agenda, both outside of and within Canada, predated Minister Axworthy’s articulation of it, see J. Ross, ‘Is Canada’s Human Security Policy Really the ‘Axworthy’ Doctrine?’, (2001) 8(2) Canadian Foreign Policy 75. See also N. MacFarlane and Y. Foong Khong, Human Security and the UN: A Critical History (2006). V. Popovski, ‘Reforming and innovating the United Nations Security Council’, (2015) Commission on Global Security, Justice and Governance, www.stimson.org/sites/default/files/ Commission_BP_Popovski1.pdf.

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It might be argued as well, that the risks of advertising in advance such an agenda, were mitigated by the relatively co-operative climate within the Council, at least as compared with the deeply entrenched divisions of the Cold War period that was only a decade ago. While there is some truth to that comparison, divisions of interest within the Council had been very clear in the mid1990s between the US and Western allies, and Russia, over how to respond to the Bosnian civil war, especially so when NATO undertook military actions to force President Milosevic to sign a peace accord, after the shock of the Srebrenica mass killings. For his part too, Axworthy had made no secret of his willingness to pursue initiatives for his human security agenda outside of the framework and the rules of the UN—whether the Security Council or the General Assembly—and even in the face of criticism and opposition by major powers. As Foreign Minister (1996-2000) under the Liberal government of Prime Minister Jean Chrétien, Axworthy advocated for and helped to lead a number of multilateral initiatives involving new, informal alliances of ‘like-minded’ states and civil society organizations.9 This new form of international advocacy, linking these states’ capacity for political leadership and their financial resources with the expertise and the popular support of nongovernmental organizations and civil society movements such as the International Campaign to Ban Landmines, and the Coalition for an International Criminal Court, led first to the Anti-Personnel Landmine Ban Treaty of December 1997 following the so-called Ottawa process of consultations towards that end. The Landmine Treaty was signed by 122 states meeting for that purpose in Ottawa, with the entire process of negotiation being conducted outside of the institutional framework—and the anticipated political limitations—of the UN. Even as this treaty was being signed, Axworthy also was providing Canadian political support to the recently revived international campaign to establish a permanent International Criminal Court. While the ICC would be negotiated at the UN General Assembly-convened special conference in Rome in JuneJuly 1998, its supporters—including an array of nongovernmental organizations that were monitoring and reporting on the proceedings to their home constituencies and the media—had to do so despite what became a campaign

9

The Human Security Partnership, or Network, began with an agreement between Minister Axworthy and his Norwegian counterpart, Knut Vollebaek, in 1998 that led to the Lysoen Declaration, a Canada-Norway co-operation agreement. See L. Axworthy et al., ‘Introduction: Human Security at 20—Lysoen Revisited’, (2014) 2(2) Asian Journal of Peacebuilding 143.

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of active political opposition from the US government, and less vocal but still strong opposition by other major powers including Russia, China, and India.10 Either the US or perhaps more likely, Russia could have responded against Axworthy’s activism in 1998 by supporting one of the other candidates in the Council election, and by pressuring their allies to do the same. Instead as previously noted, Canada (competing against Greece and the Netherlands, with the latter then winning the second seat) again won its election on the first ballot, thus endorsing the Canadian team’s strategy and also Canada’s reputation still as a constructive member and partner even when pursuing diverging priorities. Canada’s Security Council agenda: activism, accomplishment, frustration To a large extent, the agenda of the Security Council is filled by tasks determined by external events. As the UN’s highest body responsible for addressing matters of international peace and security, the Council’s work often involves responding to new crises that demand immediate attention, overseeing UN engagements in continuing actions—such as reviewing and renewing or revising the mandates of existing UN peacekeeping missions—and taking up the reports of the UN Secretary-General which can cover a wide range of securityrelated issues.11 The Council’s program of work, therefore, always is a busy one even before members propose new items for the month’s agenda. There are still openings and opportunities for advancing new issues, however, if an E10 member is determined to do so and chooses the right approach. Thanks to the luck of the alphabet (with the custom of each member in turn holding the Council presidency for one month, following the English alphabetic order of the member states’ names) in 1999 Canada would serve as President of the Council for February, after just one month of its two-year term, thus giving it an opportunity to engage quickly with the three-point agenda that Minister Axworthy had laid out before the General Assembly the previous September.12 On its transparency agenda, which was the least politically contentious, Canada began to provide weekly, publicly-accessible information 3.2

10 11 12

A. Edgar, ‘Peace, justice and politics: the International Criminal Court, “new diplomacy”, and the UN system’, in A. Cooper, J. English and R. Thakur, Enhancing Global Governance: Towards a New Diplomacy (2002), 133. The latter often are overlooked in considering the Council’s workload, but in 2017 there have been an average of ten such reports per month requiring the Council’s review. See www.un.org/en/sc/documents/sgreports/2017.shtml. The summary that follows draws details from two valuable contemporary studies of Canada’s term on the Council: P. Knox, ‘Canada at the UN: A Human Security Council?’

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about the Council’s work program—although this was hosted on a Canadiancreated website and not on an official UN website (which it is today). Council President, Ambassador Fowler, engaged in regular press briefings following both open and closed Council meetings. Also as President, the Canadian Ambassador regularly held meetings and gave briefings about the Council’s ongoing work to interested UN member states that were not then E10 members of the Council, building on the so-called ‘Arria-formula’ of informal meetings that had been initiated in 1992 by Venezuelan Ambassador Diego Arria.13 For the second and more politically sensitive component of the Canadian agenda, on improving the credibility and effectiveness of the work of the Council, Minister Axworthy and Ambassador Fowler pursued this goal through careful use of the E10’s role in chairing Security Council committees. Initially offered the role of chair for the Iraq sanctions committee, which had been stalemated for some time, Ambassador Fowler declined and instead chose to take on the chair of the Angola sanctions committee that previously had been held by Kenya. While also acting as President of the Council, he then was able to push the sanctions committee to recommend establishing a new expert panel. This panel was to investigate the relationship between the global diamond trade and the use of illegal proceeds gained from the trade in ‘blood diamonds’ to support weapons trafficking by the National Union for the Total Independence of Angola (UNITA) rebel group in Angola. Such trade was in defiance of the sanctions against UNITA imposed by Council resolutions in 1997 and 1998 when the rebel leadership refused to sign the 1994 Lusaka Protocol peace accord. The establishment of the new expert panel was endorsed by Security Council Resolution 1229, on 26 February 1999—just before Canada’s presidency ended and it was replaced by China as the country next on the alphabetic list of members.14 The Canadian delegation would be able to take up a leadership role on the matter again during its second term as Council President, which would come in April 2000. In pursuit of the third element of its Security Council agenda, bringing the human security framework into the Council’s deliberations and its recommendations, Canada used its first term as President to obtain Council agreement to hold an open thematic debate on the protection of civilians in situations of armed conflict. On this occasion, Foreign Minister Axworthy traveled to New York to chair the session personally, adding further to the credibility of

13 14

in M.A. Molot and F.O. Hampson (eds.), Canada Among Nations 2000: Vanishing Borders (2000), 303; and Pearson, supra note 4, 127. Security Council Report, ‘Arria-Formula Meetings’ (13 April 2018). The establishment of the expert panel then was authorized by UN Doc. S/RES/1237 (1999).

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the meeting. At Canada’s invitation, the meeting on 12 February 1999 included participation by the heads of both the International Committee of the Red Cross (ICRC), which had never previously been invited to speak at a Council meeting, and UNICEF. Then at the conclusion of the debate, Minister Axworthy issued a Presidential Statement on behalf of the Council, noting its responsibility to consider and to act upon such matters in accordance with the UN Charter. Later that month and still while serving in the presidency, Canada on 22 February 1999 chaired a second open meeting following up on the same theme, and inviting non-Council UN member states to speak to the topic and to comment on the earlier statements of the ICRC and UNICEF. More than 20 countries took up Canada’s invitation.15 In its first year of the two-year term, and in its first opportunity to serve as Council President, the well prepared Canadian delegation led by a respected ambassador and supported by an activist Foreign Minister was able to increase the transparency of the Council’s work, at least during its presidency; energize a previously weak sanctions committee; introduce a thematic issue to the Council’s already busy program of work, in an open meeting including other non-Council UN member states and nongovernmental organizations; and obtain the support of the P5 states in pursuing these goals. Even before its 12 February 1999 open thematic debate, Canada as Council President also guided the passage of Security Council Resolution 1227 on 10 February addressing the conflict between Ethiopia and Eritrea which included specific wording on the necessity of protecting the safety of civilians and respecting human rights and international humanitarian law.16 These constructive steps would be followed up during Canada’s second presidency, in April 2000, with Minister Axworthy chairing six Council meetings—more than any other Foreign Minister in a single month. During this time, the Council held two more open debates, on Rwanda and Afghanistan; and continuing in its chairing role of the Angola sanctions committee and the release of a special report in March 2000, widely known as the ‘Fowler Report’,17 Canada most notably obtained unanimous support for a new resolution that incorporated the recommendations of the Expert Panel. Security Council Resolution 1295, passed unanimously on 18 April 2000, called for measures that would include explicit naming of sanctions violators including states, private 15

16 17

J.A. Martin and R.M. Young, ‘Unfinished Business: Canada’s Contribution to Promoting Compliance with International Humanitarian Law through the Protection of Civilians in Armed Conflict Agenda of the United Nations Security Council’, (2009) 27 Windsor Yearbook of Access to Justice 347, at 357. UN Doc. S/RES/1227 (1999). UN Doc. S/2000/203 (2000).

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companies, and individuals; the authorization of action against those violators; and the creation of a new monitoring mechanism (a special panel of five expert investigators) to ensure the terms of the resolution were implemented. To support the implementation of this resolution, Minister Axworthy announced on the same day a funding package of $300,000 that would provide $100,000 each for the new monitoring mechanism, a conference of experts on the diamond trade to identify a new system of transparency and accountability for diamond trading, and a special workshop for nongovernmental organizations with expertise in the global small arms trade to consider how to monitor and control that trade, especially focused (again) on Angola.18 The Kimberley Process Certification Scheme would be the eventual outcome of the conference of experts, which met in May 2000 in Kimberley, South Africa and which then led to a December 2000 General Assembly resolution calling for the creation of a new certification scheme for the global trade in rough diamonds.19 Canada could not claim sole ownership of these accomplishments, of course, and neither the Ambassador nor the Minister would have done so. As with the Landmine Treaty and the Rome Statute of the ICC, these measures taken within the Security Council required and depended on support and partnership with other ‘like-minded’ states, both among the P5 and the E10 as well as UN member states not sitting on the Council; and at times, the forbearance of a P5 member who might otherwise have chosen to oppose a resolution. When such support or forbearance was not present, the result would be very different. Prior to being elected to the UN Security Council, and in the midst of its election campaign, Foreign Minister Axworthy in 1998 made a number of diplomatic efforts to engage the Council to take firm action regarding the escalating crisis in the restive southern Serbian province of Kosovo. This was while making clear that Canada would support NATO air strikes should the Council refuse to act to prevent what Western observers believed was an impending campaign of ethnic cleansing and possibly even worse.20 After Canada’s Security Council campaign election success, and during its first Council presidency in February 1999, Minister Axworthy and Ambassador Fowler sought 18 19 20

‘UN Security Council adopts resolution on Angola Sanctions; Canada to fund sanctions initiatives’ (18 April 2000), https://reliefweb.int/report/angola/un-security-council-adoptsresolution-angola-sanctions-canada-fund-sanctions. UN Doc. A/RES/55/56 (2000). For more current details on the Kimberley Process Certification Scheme, see www.kimberleyprocess.com/en/what-kp. The Council did issue a Presidential Statement in August 1998 calling for a ceasefire, and then in September 1998 passed a formal Resolution (UN Doc. S/RES/1199), calling for the cessation of hostilities and negotiation of a political solution.

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to persuade Council members to pass a resolution supporting the proposed Rambouillet peace negotiations. Although the Council did issue a statement on 12 February to the effect that large-scale human suffering could constitute a threat to international peace and security, Canada’s efforts to have the Council pass a new resolution authorizing possible international intervention in Kosovo were blocked by Russia’s veto power. Moscow sought to protect its Slavic ally President Slobodan Milosevic, and also to counter what it saw as a Western, and especially US and NATO, ploy to exert influence over yet another central European state. Instead, faced with Russia’s determined intransigence in the Council, Canada again made use of its presidency and issued a Presidential Statement on 23 February 1993 in support of the negotiations. In March 1999 with China serving as Council President and with Russia maintaining its declared opposition to any potential resolution, NATO began its air campaign against Serbian military and other strategic targets. It did so without having brought forward a draft resolution to the Security Council, which undoubtedly would have been vetoed by Russia and possibly China, leaving the Western powers with the prospect of acting against an existing veto. This was something that no P5 Security Council member (three of them being among the NATO alliance) would wish to establish as a precedent. As Minister Axworthy had promised in 1998, Canada took on a full range of responsibilities as the Canadian Forces’ CF-18 aircraft flew missions in support of NATO’s ‘coalition of the willing’. Reflecting on this choice to act despite lacking Security Council authorization, Minister Axworthy noted that Canada had ‘worked hard to engage the Council’ in fulfilling its responsibilities, but that ‘certain members of the Council could not reconcile yesterday’s assumptions about sovereignty with today’s imperatives of human emergency’.21 Equally critically, Ambassador Fowler observed caustically ‘the fact that at the fault line between East and West the veto is still relevant and the Security Council is not relevant is absolutely unsurprising to me. The only thing that is surprising is why we would think anything else’.22 When the core interests of a P5 member—especially, the US and Russia—or one of its close allies were involved, the limitations of what an E10 state, or even the Council as a whole, can do was abundantly clear.

21 22

Quoted in H.S. Dashwood, ‘Canada’s Participation in the NATO-led Intervention in Kosovo’, in Molot and Hampson (eds.), supra note 12, 275 at 299. Quoted in Knox, supra note 12, at 312.

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An E10 Seat on the Council: is the Game Worth the Candle?

When Saudi Arabia surprised many observers, and possibly even itself, in October 2013 by first winning and then turning down an elected seat on the Security Council, its officially stated reason was that the Council used ‘double standards’ in its dealings addressing crises in the Middle East, both in its weak response to the atrocities being committed by the military forces of the Bashar al-Assad regime during the continuing war in Syria, and in its brokerage of a nuclear agreement with Iran while ignoring other regional states’ (presumably referring to Israel) possession of nuclear weapons.23 While these unusuallypublic statements from Riyadh may have expressed genuine frustration, there also may have been other political calculations at play—for example, sitting on the Council places a state in the position of being obliged to take sides, including registering votes, on a wide range of international security issues, some of which could place the Saudi government at odds with its major strategic and military ally, the US.24 Even if an E10 state does not wield the level or forms of institutional authority that a P5 state enjoys, their votes count, their votes are counted, and their votes are noted by other states inside the Council chamber and outside of it. For Canada, their two-year term in 1999-2000 was an opportunity that they actively sought, and then equally actively worked to translate into desired outcomes. As they made clear, neither the Minister nor his Permanent Representative were shy of pushing the Canadian agenda, more often through carefully-chosen avenues that were met with support or at least forbearance, but including at times in the face of P5 criticism. In doing so, they experienced some successes, and some failures. On the latter, the stalemate in the Council over Kosovo already has been highlighted, but there were other frustrations— on Sudan, and the reports of government-supported mass killings in Darfur, Canada could not move the Council to action; and when Canada attempted to have the Council place the conflict in Chechnya and the need to protect civilians caught between rebel and Russian forces on its agenda for discussion, Russia very bluntly blocked its effort.25 Even in terms of the Council’s trans23

R.F. Worth, ‘Saudi Arabia Rejects UN Security Council Seat in Protest Move’, New York Times, 18 October 2013, www.nytimes.com/2013/10/19/world/middleeast/saudi-arabia-rejects-security-council-seat.html. 24 E. Voeten, ‘Why would states want or not want a seat on the United Nations Security Council?’, Washington Post, 19 October 2013, www.washingtonpost.com/news/monkeycage/wp/2013/10/19/why-would-states-want-or-not-want-a-seat-on-the-united-nationssecurity-council/?utm_term=.758597206b3c. 25 Knox, supra note 12, at 316.

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parency, the P5 continued to hold informal meetings and also to have ‘closeddoor’ briefings with UN Secretary-General Kofi Annan, about which Ambassador Fowler made clear his frustration publicly, while Minister Axworthy did so less abruptly but no less clearly. There were, and will remain for the foreseeable future, obvious structural inequalities between P5 and E10 members; and while the P5 can have deep divisions that render the Council stalemated, they also have had a collective interest in maintaining their special status, although some (the UK in particular) have at times indicated greater willingness to support significant Council reform.26 Whatever the vagaries of UN structural reform, however, it also is the case that a Council that has a very full agenda of international issues of security and justice requires the affirmative vote of at least nine members, including the concurrence (an affirmative vote or an abstention) of the P5. In the absence of a seat in the Council, a state will not ultimately have a vote and therefore a voice that can be either counted, or noted.

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The UK’s Permanent Representative to the UN, Mark Lyall Grant, in 2015 stated at the Intergovernmental Negotiations on Security Council reform, Britain’s support for the creation of new permanent Council seats for Brazil, Germany, India and Japan, plus one permanent seat for an African member state. See Foreign and Commonwealth Office, Speech by Sir Mark Lyall Grant, available at www.gov.uk/government/speeches/we-believe-thatthe-time-has-come-to-make-the-united-nations-security-council-more-reflective-of-themodern-world. The ‘Brexit’ vote in June 2016 has raised a number of questions about the future of the UK’s seat and status in the Council, although given that it holds a veto itself there is little likelihood of significant change in that status at least in the near future.

Chapter 7

The Role of Elected Members on the UN Security Council: The New Zealand Experience 2015-16 Gerard van Bohemen Former Permanent Representative of New Zealand to the United Nations* 1

Introduction

This chapter discusses the experience of New Zealand as an elected member of the Security Council (‘the Council’) from 2015-16, including our priorities, engagement on major substantive issues, efforts to improve the Council’s effectiveness and strengthen the influence of elected members, and key lessons. New Zealand came onto the Council in January 2015 after a lengthy campaign. The Government had made election to the Council one of New Zealand’s major foreign policy priorities.1 As such, New Zealand Ministers expected and required us to be an active and vigorous Council member. As noted by then Prime Minister, the Right Honourable Sir John Key, in his 2015 address to the General Assembly, the Council is a key part of the multilateral architecture, and as a small country, we have a vested interest in making it work.2  Accordingly, our focus was on delivering on promises made during the campaign, encouraging the Council to take effective action on the major threats to international peace and security on its agenda, and trying to improve the way the Council operated.  When New Zealand came to the Council, tensions were high between Russia and the West. This was largely due to differences over Russia’s annexation of Crimea, the continued unrest in Eastern Ukraine and the consequent imposition of sanctions by the US and the EU, and over the conflict in Syria.  Relations became steadily worse during 2015-16 as Russian influence grew and US influence diminished, especially in relation to Syria, but also more generally. * 1 2

This article is based on the personal reflections of the author and the views expressed do not necessarily reflect the views of the New Zealand Government. New Zealand Government, Prime Minister’s Statement to Parliament (29 January 2013), www.scoop.co.nz/stories/PA1301/S00143/prime-ministers-statement-to-parliament.htm. Address by Mr John Key, Prime Minister of New Zealand (1 October 2015), UN Doc. A/70/ PV.23 (2015) at 16-18.

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In the Council, this worsening of relations saw a string of vetoes and failed votes over Syria,3 disagreements over Yemen and Libya, failed or divided votes on South Sudan,4 Burundi and Liberia, and, more generally, a more confrontational, less collaborative approach in Council discussions. The downturn in major power relations exacerbated some of the underlying and more constant tensions that exist over the role and relevance of the Council. For the permanent members (P5), in varying degrees, the Council is less a place to solve problems and more a body to ratify solutions negotiated elsewhere (as in the Iran deal, key resolutions on Syria, the nuclear capability of the Democratic Republic of Korea (DPRK), and, above all, the Middle East Peace Process)—or in the absence of solutions, as a forum for political theatre to pressure others.  Within that wider context, there was a set of Council specific constraints: 1. The dominance of the permanent members and their insistence on practices that preserve their influence. This manifested itself most notably in the penholder system, under which the permanent members—mostly the US, UK and France (P3)—‘hold the pen’ in the drafting of products and lead the Council’s consideration of most major issues. This dominance was also evident in the practice by which the permanent members are consulted on all senior UN Secretariat appointments (whereas elected members are not). 2. The ‘learned helplessness’, as one P5 permanent representative called it, of many elected members who complain about the permanent members and talk up the need for action, but do little to make anything happen. 3. The Council’s heavy agenda on which many items recur under tight periodic cycles, irrespective of what is happening on the ground, but which few Council members are prepared to reform. 4. The propensity of the permanent members and some elected members to approach issues principally from the perspective of protecting their national interests rather than seeking solutions in the collective interest of the UN membership. 5. The tendency to regard ‘informal consultations’ as another opportunity to rehearse known facts and set policy positions rather than to engage in genuine discussions aimed at solving specific problems.

3 4

UN Doc. S/PV.7785 (2016); UN Doc. S/PV.7825 (2016). UN Doc. S/PV.7850 (2016).

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Keeping Promises to Small States

An early priority for New Zealand was to demonstrate that we would keep the promises we had made during our campaign. A particular focus was to deliver on our undertaking to ensure Council consideration of the priority issues of small states, especially Small Island Developing States (SIDS). To this end, we made the centrepiece of our first presidency in July 2015 an open debate on the ‘Peace and Security Challenges Facing Small Island Developing States’.5 The debate, presided over by the then Minister of Foreign Affairs of New Zealand, Honourable Murray McCully, achieved our objective of putting SIDS’ security concerns squarely before the Security Council. The Secretary-General, the Prime Ministers of Jamaica and Samoa, and the Finance Minister of Seychelles briefed the Council. Nineteen countries were represented at Head of Government and Ministerial level. We chose deliberately not to seek a formal Council product. Our subsequent non-paper capturing the key themes of the debate was more descriptive and adventurous than anything we could have negotiated through the Council. The booklet compiling our concept paper, the non-paper, and statements, which were circulated as an official Council document to the full UN membership, became a reference point on SIDS peace and security issues. 3

New Zealand Engagement on Major Substantive Issues

New Zealand considered it had a responsibility to be knowledgeable on, and contribute to, discussions on all issues on the Council’s agenda. However, we had a clear Ministerial directive to prioritize the major political issues which, in our time on the Council, were Syria, Iran, South Sudan, DPRK’s nuclear capability, the Middle East Peace Process and Yemen. A number of other issues also were given significant attention over the period, notably Libya, the Democratic Republic of the Congo (DRC), Mali, Somalia, Burundi, Central African Republic, Iraq, Afghanistan, and Western Sahara. In this chapter, I focus on Syria, the major political issue of our term, and the Middle East Peace Process, an issue to which we devoted considerable attention and which was especially prominent in the final weeks of our term.

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UN Doc. S/PV.7499 (2015).

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Syria Humanitarian Assistance and the Protection of Healthcare Workers in Armed Conflict In 2014, Australia, Luxembourg and Jordan pioneered the adoption of Resolution 2165 authorizing cross border delivery of humanitarian assistance into Syria.6 New Zealand and Spain succeeded to the roles of Australia and Luxembourg and, together with Jordan, secured the adoption of Resolution 2258.7 Resolution 2258 renewed the arrangements in Resolution 2165 for a further year and broadened their scope to include delivery of humanitarian assistance across conflict lines within Syria. This sequence of resolutions was continued with Resolution 2332, adopted in late 2016.8 The tradition of elected memberled resolutions on this issue was therefore firmly established. A further development along similar lines was Resolution 2286 adopted in 2016 at the initiative of New Zealand and four other elected members (Egypt, Japan, Spain and Uruguay) drawing attention to the spate of attacks against healthcare workers in various conflict zones.9 That resolution was a significant development in terms of Council practice and demonstrated what elected members can achieve when they work together. Sadly, to date at least, the resolution’s adoption does not appear to have significantly changed the behaviour of combatants in the conflicts in Syria and Yemen. 3.1

3.2 Political Situation in Syria While the resolutions regarding Syrian humanitarian assistance and healthcare workers in armed conflict touched on the political issues at stake in Syria and Yemen (and elsewhere in the case of the healthcare resolution), the subject matter of the resolutions was considered separately from the discussions on the political situations in both countries. Those discussions were invariably led by the self-assigned ‘penholders’—the US and Russia in the case of Syria, and the UK in the case of Yemen. New Zealand, like other small elected members, found it hard to get any entrée into the political discussions on Syria. For most of 2015 and the first eight months of 2016, those discussions were conducted principally by the US and Russia in a bilateral configuration and then in the International Syria Support Group (ISSG).10 The Council was largely the recipient and expected endorser of outcomes negotiated in the other two settings. This was demonstrated 6 7 8 9 10

UN Doc. S/PV.7216 (2014); UN Doc. S/RES/2165 (2014). UN Doc. S/RES/2258 (2015). UN Doc. S/RES/2332 (2016); UN Doc. SC/12651 (2016). UN Doc. S/PV.7685 (2016); UN Doc. S/RES/2286 (2016). The ISSG is a working group formed to find a diplomatic solution to the Syria crisis. The ISSG is co-chaired by the US and Russia, and was established during the ‘Vienna Talks’ in

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starkly when New Zealand and other Council members were given an hour to consider the text of what became Resolution 2254 before it was put to a vote, after a US/Russian draft had been debated all morning in the ISSG.11 Things changed in the latter part of 2016 as the fighting, especially around Aleppo, escalated and the political process stalled. New Zealand, as president of the Council for September, decided to make the situation in Syria the focus of the debate convened in Leaders’ Week. This decision was strongly supported by the then Secretary-General and his Special Representative, Staffan de Mistura, and most Council members. The meeting was presided over by the New Zealand Prime Minister, and attended by four other Heads of State or Government, one Deputy Prime Minister, and Foreign Ministers from all other Council members. The debate itself, led off by Russian Foreign Minister Sergey Lavrov and US Secretary of State John Kerry after Secretary-General Ban Ki-moon had set the scene, was an important demonstration of the depth of international concern about the situation in Syria.12 It was unusual for an elected member to convene a debate on a major political issue as the centrepiece of its presidency. Doing so gave us the basis for taking a more prominent part in the political discussions on Syria over the remainder of our term. This included circulating, on our own in October 2016, a draft resolution that would have required a halt to all hostilities in Aleppo that risked death or injury to civilians. When that draft was not accepted by the P3 or Russia (for opposite reasons), we joined with Spain and Egypt in tabling a draft resolution that would have required a temporary pause to the fighting in Aleppo. We were greatly disappointed that this very moderate draft was vetoed by both Russia and China. Nonetheless, three elected members had asserted their right to promote a resolution on a major political issue before the Council. 3.3 Middle East Peace Process New Zealand made clear from the start the importance we attached to seeing Council action on the Middle East Peace Process during our term. We used the Council’s monthly briefings and informal consultations, as well as the quarterly open debates on the situation in the Middle East, to call for action and to signal our intention to share specific drafting ideas. We also undertook extensive consultations in Washington and other capitals.

11 12

2015. The 19 founding members were China, Egypt, EU, France, Germany, Iran, Iraq, Italy, Jordan, Lebanon, Oman, Qatar, Russia, Saudi Arabia, Turkey, UAE, UK, UN and the US. UN Doc. S/PV.7588 (2015); UN Doc. S/RES/2254 (2015). UN Doc. S/PV.7774 (2016); UN Doc. SC/12526 (2016).

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In August 2015, we shared the text of a draft resolution with all Council members and with Israel, the Palestinians and the Arab Group. The draft was deliberately moderate—calling for an end to settlements in the occupied Palestinian territories, an end to violence and incitement and a resumption of negotiations. While our initiative was welcomed by most Council members and many states in the region, it was apparent the US was not enthusiastic while other Council members considered the draft did not go far enough. Accordingly, we put the draft to one side but continued to argue the case for Council action. It was widely understood in 2016 that Council action on the Middle East before the US presidential elections in November was unlikely to be successful. Even so, the issue remained prominent, especially following the release of the report of the Middle East Quartet,13 whose headline message was that current trends, including the continuation of settlements in the Occupied Palestinian Territories, were imperilling the viability of the two-state solution.14 At the monthly breakfast meeting of permanent representatives on 1 December 2016, we advised Council members of our intention to circulate a further, fuller draft on the Middle East Peace Process and did so in the ensuing days, sharing it also with Israel, the Palestinians, and other regional countries. We then convened a series of discussions to gauge reactions and press for a resolution before the end of the year (and end of our term). Those discussions again showed strong support for the idea of a Council resolution but there were reservations about aspects of our draft. Some felt it did not go far enough; others said reaching agreement on a final text would take more time than was available if the resolution was to be adopted before the end of the year. Many were aware of a push within the Arab Group for a more settlements-focused text, although there was uncertainty about the degree of support for Council action at that time, even within that Group. We reluctantly reached the conclusion that adoption of a resolution on the Middle East Peace Process before the end of the year was unlikely. On 21 December 2016, without prior consultation with us or most other Council members, Egypt tabled and ‘put into blue’ its own draft resolution calling for a vote the following day.15 While somewhat different from our draft, the Egyptian draft included previously accepted language on the legal status 13 14 15

The Middle East Quartet consists of the UN, the EU, the US and Russia. Report of the Middle East Quartet (1 July 2016), www.un.org/News/dh/infocus/middle_ east/Report-of-the-Middle-East-Quartet.pdf. When a draft resolution is ‘put into blue’—a term harking back to the blue ink used in old copying machines—the sponsor of the resolution is signalling its intention to have the resolution put to a vote in 24 hours (and sometimes less in some cases).

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of the settlements, a call for an end to incitement and violence, and a call for a resumption of negotiations. Given its consistency with New Zealand policy, we were instructed overnight by our capital to support and co-sponsor the draft, which we did the following morning (22 December). Quite separately from us and from each other, Malaysia, Senegal and Venezuela also co-sponsored the text. The following day, Egypt advised, following reported representations to President Sisi from Prime Minister Netanyahu of Israel and, it later emerged, US President-Elect Trump, that it would not put its draft resolution to the vote. Egypt subsequently withdrew its sponsorship of the text. After consultations with each other and other Council members, and after seeking instructions from their capitals, the four other co-sponsors advised that they would nonetheless put the draft to the vote in accordance with the Council’s Provisional Rules of Procedure.16 The resolution was put to the vote on the afternoon of 23 December 2016. It was adopted as Resolution 2334 by a vote of 14 in favour to none, with the US abstaining. It was the first Council resolution on the Middle East Peace Process in eight years; the first on settlements in the Occupied Territories (although, as noted above, it also addressed other issues) since 1970.17 4

Improving the Council’s Effectiveness by Pushing to Change Council Behaviour

As a country firmly committed to the UN and the Rule of Law, New Zealand put a big emphasis on trying to make the Council more effective. We focussed on what could be achieved in a practical sense. Our approach was to seek behavioural change rather than rule change; to do things differently until we found we could not. One of the things that most struck me when returning to the Council after 20 years was that the permanent representatives rarely, if ever, spoke directly to each other in any general way about how the Council was performing and whether we might do things better. Most discussions followed a pre-set agenda and many contributions, even in informal consultations, were read from a script. Negotiations on most Council products were carried out in groups of experts and most decisions on Council processes were made by political coordinators. 16 17

Provisional Rules of Procedure of the Security Council, Rule 35. UN Doc. S/PV.7853 (2016); UN Doc. S/RES/2334 (2016).

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We believed the Council had a better chance of reaching agreement, both at the level of principle and on specific products, if permanent representatives played a greater part in shaping Council discussions and outcomes and had better information at their disposal, and opportunities to understand better the policy and practical constraints under which Council members, peacekeeping operations and the Secretariat operated. We took a number of initiatives to those ends. 1. We invited all permanent representatives to a Start of Presidency working breakfast at the New Zealand Residence on the first day of our presidency in July 2015. The purpose was to generate an informal offsite conversation about the programme of work for the coming month and a more general discussion about how the Council might better organize its work. This proved a welcome innovation and the forum was particularly useful in discussing the Secretary-General appointment process in 2016. Offsite breakfasts for permanent representatives at the start of each month are now standard practice for all presidencies. 2. Convening informal offsite discussions on sensitive issues such as decision-making, including the use of the veto and ‘Council responsiveness’. Offsite discussions ensured both informality and that the event could proceed, even if a Council member (probably permanent), objected. In the event, all Council members, most at the level of permanent representative, attended both events and participated actively. 3. In consultation with the Secretariat and other Council members, we arranged for monthly ‘situational awareness briefings’, enabling the Secretariat to provide quality and coherent information from across the UN system about emerging conflicts and operational risks. The first such briefing was held during New Zealand’s second presidency in September 2016. 4. We established a new informal format for Council members and key Secretariat officials to engage with countries that contributed troops for UN peacekeeping missions, enabling more practical discussions about challenges in the field and what was likely to be feasible and effective in terms of Council action. 5. We joined with other like-minded Council members to promote less structured, more informal outcome-focused discussions in the Council’s informal consultations. To this end, we encouraged Secretariat briefers to keep presentations brief, to use informative visual aids, to focus on recommendations to Council, and for Council speakers to address the range of possible outcomes rather than rehearse pre-established positions.

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We challenged the practice of ‘penholders’, which has no basis in the Charter and is a considerable irritant to those elected members wanting to take a more active role in Council business. Our draft resolutions on the Middle East Peace Process, Syria, and healthcare in armed conflict were concrete demonstrations that every Council member, whether elected or permanent, has the right to put forward drafts on any issue on the Council’s agenda. We joined the other elected members in challenging the practice by which the permanent members decided and allocated the Chairs of the Council’s subsidiary bodies. The bringing forward of Council elections to June provided the opportunity to push for a more consultative and inclusive process for the allocation of those roles which was accepted, albeit with some reluctance, by the permanent members. We had less success in promoting more transparent and effective measures within the Council’s subsidiary bodies. Even so, we managed to secure greater input by elected members into the process for appointing a new Ombudsperson for the ISIL (Da’esh) and Al-Qaida Sanctions Committee.18 We also pushed for a greater focus on the growing threat from ISIL and secured important updates to a number of the Committee’s working methods. One aspect to which we regularly called attention, so far without practical result, is the practice by which all Committee decisions, no matter how trivial, must be taken by consensus—thereby conferring an effective veto on all 15 Committee members. This goes well beyond the Charter and is a major constraint on the effectiveness of one of the Council’s most important tools in the fight against terrorism. We participated regularly in ‘informal wrap up sessions’ held, at the discretion of the presidency at the end of each month, to brief members of the General Assembly on what had happened in the Council over the month. Such sessions were much better attended and much livelier than the formal wrap up sessions held in the Council chamber, where only members were permitted to make statements. That said, we also sought to speak candidly about the challenges facing the Council in formal wrap up sessions.

The Office of the Ombudsperson was created by Security Council Resolution 1904, adopted on 17 December 2009.

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Strengthening the influence the elected members (E10)

While New Zealand emphasized that the Council is a 15 member body, we put a lot of effort into building up a practice of greater collaboration among the ten elected members (E10). Since it takes nine positive votes to pass any resolution,19 the most effective counterweight to permanent member dominance of the Council is a united or at least co-ordinated E10, even if individual E10 policy positions can, and often do, diverge significantly on any particular issue. New Zealand became an unofficial convenor of the E10 in 2015-16, hosting regular E10 meetings and rallying elected members to co-operate on certain issues. This was especially useful in the early days of working out the SecretaryGeneral selection process and the appointment of chairs of subsidiary bodies. 6

Key lessons from the New Zealand Experience

I record here some of the key lessons of New Zealand’s most recent term on the Security Council: 1. Membership in the Council raises a country’s profile and influence in New York significantly, and not just in the Council. While there is still a fixation by the media and many members of the General Assembly on the views and influence of the permanent members, being on the Council lends weight to the views expressed by an elected member in formal meetings and the many informal gatherings that make up life in the UN in New York. 2. That influence is enhanced significantly if an elected member demonstrates competence by being well informed, sufficiently resourced, and having perspectives and proposals worth listening to. Putting forward credible ideas and proposals on the major political issues further differentiates among elected members and adds to impact—as happened with our tabling of draft resolutions on Syria and the Middle East Peace Process. 3. Strong and visible Ministerial support is vital to impact and effectiveness. The amount of time our Minister, the Honourable Murray McCully, spent in New York—more than any of his Council counterparts—and his obvious interest on matters such as Syria and the Middle East Peace Pro19

1945 Charter of the United Nations, 1 UNTS XVI, Art. 27.

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cess ensured our counterparts understood that our actions, especially on the big issues, had the support of the New Zealand Government. Change is often more effectively pursued by modelling and encouraging behavioural change than seeking rule change. Our breakfasts, the off-site meetings, and the work with others to make discussions more interactive, did not require change to the Council’s rules. The real requirement was buy-in from the other permanent representatives because they have the authority and confidence to depart from established practices. It can be hard to effect change and to make change stick. While the permanent members are not necessarily opposed to change or activism by elected members, they are not in the habit of encouraging it. Unless persuaded or forced to change they continue to do what is familiar to their missions and their capitals. Sometimes effecting change requires pushing matters to the brink, but for the threat to mean anything, you must be willing to carry it through and have the votes to succeed. Inertia on the part of many elected members militates against change. Despite the frequent calls from the General Assembly for Council reform, many elected members demonstrate high attachment to conforming to expectations and are reluctant to take risks for fear of upsetting powerful friends or neighbours. For some, there was a natural deference to power and also a concern not to have to choose between East and West on many of the main political issues of contention. Coalitions are key to success in elected members taking forward initiatives on major political issues. As we found with the Middle East Peace Process and Syria resolution texts, New Zealand acting alone struggled to get sufficient engagement from the wider Council. Our successes came when groups of elected members worked together to secure action, as happened on the Syria humanitarian resolutions, healthcare in armed conflict resolution, and our various initiatives on working methods. Engagement with the media is a key part of the job. Our regular engagements with the international media in New York—standard operating procedure for some permanent members but relatively unusual for an elected member—made the media something of an ally and enhanced our credibility and influence. It also projected a usually positive image of New Zealand to major media outlets and to regions such as the Middle East and Africa whose knowledge of New Zealand was thin.

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Was it all worth it?

At times the work was heady and exciting, more often it was hard, depressing and frustrating. But the work mattered and, on occasions, made a difference, despite the stalemates, set-backs and the sometimes callous indifference to human suffering. For New Zealand, the 2015-16 term was a rare opportunity for a small country to be involved in and to influence some of the most important political and security issues of our time. Taking such opportunities is consistent with longstanding themes of New Zealand foreign policy, notably our support for rules-based multilateral arrangements and our long-held view that it is not in the interests of small countries for decisions on international peace and security to be the sole preserve of the major powers.

Chapter 8

The Dutch Approach of Promoting the International Rule of Law and Constructive Multilateralism on the Security Council Nico Schrijver This chapter discusses the participation of the Netherlands on the UN Security Council. So far, the Netherlands has served six times on the Council, the first time in 1946 and the last time in 2018. In section one the chapter provides some historical context to Dutch foreign policy, including the Netherlands’ membership on the Council of the League of Nations and its role in drafting the UN Charter in 1945. Section two maps the five previous terms of the Dutch membership on the Security Council and discusses for each term some particular features and highlights. Subsequently, section three reviews the main priorities as well as achievements of the one-year term of the Netherlands on the Security Council in 2018. It also aims to provide an answer to the question whether the one-year membership was worthwhile. The chapter concludes in section four with some final reflections and conclusions. The Netherlands has now announced its ambition to serve once again on the Council for the term 2032-33. Would it be worth the effort? 1

Historical Context

The Netherlands’ experience as a non-permanent member of the Security Council is informed by its historical approach to foreign policy—a consistent feature of which is its commitment to international law.1 Marking a shift from its previous position of passive neutrality in foreign relations, the Netherlands has actively sought to support the development of international law since the early 20th century. Leading up to this, the Netherlands initiated the Hague Conference on Private International Law in 1893 and hosted the Hague Peace Conference in 1899 during which the Permanent 1

This section builds upon on N.J. Schrijver, ‘A Missionary Burden or Enlightened Self-Interest? International Law in Dutch Foreign Policy’, (2010) 57(2) Netherlands International Law Review 209.

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Court of Arbitration was established along with various agreements on the laws and customs of war. This was followed by the Second Hague Peace Conference in 1907, and the opening of the Peace Palace in The Hague in 1913. Several jurists laid the intellectual foundations for this shift towards co-operative multilateralism, including Tobias M.C. Asser (1838-1913) and Cornelis van Vollenhoven (1874-1933)—all of whom drew upon the influential work of Hugo Grotius (1583-1645).2 1.1 The Netherlands’ Experience on the Council of the League of Nations The Netherlands’ accession to the League of Nations in 1920 served as an opportunity to enhance its reputation as an active and co-operative global citizen, a reputation which was somewhat damaged as a result of its persistent neutrality during the First World War and the granting of refuge to the defeated German Emperor Wilhelm I.3 In February 1920, during its second session chaired by the Dutch Foreign Minister Van Karnebeek, the League Council established an Advisory Committee of Jurists to formulate plans for the establishment of an international court. This led to the drafting of the Statute for the Permanent Court of International Justice (PCIJ), the final version of which entered into force on 1 September 1921. Moreover, the PCIJ got its domicile in the Peace Palace in The Hague. As a non-permanent member of the League Council (1926-28), the Netherlands also offered to host a conference on the progressive codification of international law.4 This took place from 13 March to 12 April 1930 in the Hall of Knights in The Hague. In his address to the Conference, the Secretary-General of the League of Nations, Sir Eric Drummond, noted that ‘throughout this period [i.e. the years of preparation for the conference] no Government has shown a more active interest in this work than the Government of the Netherlands’. In addition, he emphasized that ‘it was fitting to choose as a seat of the Conference the Netherlands, the home of Grotius and of many others renowned in the study and practice of international law’.5 The 2 3 4

5

Among the works of Grotius, the most famous is De iure belli ac pacis [On the Law of War and Peace] (1625). For a biography on Grotius, see H. Nellen, Hugo Grotius: A Lifelong Struggle for Peace in Church and State, 1583-1645 (2014). See generally R. van Diepen, Voor Volkenbond en Vrede. Nederland en het streven naar een nieuwe wereldorde [For League of Nations and Peace. The Netherlands and the pursuit of a new World order 1919-1946] (1999). First Meeting (1927) 8 League of Nations OJ 744, at 756. See also, H. Miller, ‘The Hague Codification Conference’ (1930) 24(4) The American Journal of International Law 674; and ‘Part 3: The First Conference for the Codification of International Law’ (1947) 41(4) The American Journal of International Law 66. S. Rosenne, League of Nations Conference for the Codification of International Law (1930), vol. III (1975), 16.

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Conference could only agree on adopting instruments on the topic of nationality. However, it contributed to cementing for the Netherlands an enduring role in the promotion of international law. 1.2 The Netherlands’ Role in the Drafting of the UN Charter Following the demise of the League of Nations and the horrors of World War Two, 51 countries came together in 1945 to create a new global organization— the United Nations—aimed at the maintenance of world peace. During the San Francisco conference from 25 April to 26 June 1945, the Dutch delegation played an active role. In his speech of 28 April 1945 in the Plenary Conference Minister Van Kleffens referred to the Dutch tradition for the maintenance of peace and security and for a better organized international community, reducing ‘international anarchy… to the utmost possible extent’.6 In this context he stated: We are ready to accept certain limitations of that more or less complete freedom of action which hitherto has characterized a sovereign State. We should like to see those limitations accepted in the same measure by all States, great and small. If this cannot be obtained at once, and if together with the other medium and smaller States, we are to set an example in this respect, we shall be proud to do it.7 Although a medium-sized power—with at the time 79 million inhabitants and territories in three continents—the Netherlands missed out on being included in the circle of Great Powers. Van Kleffens observed: We fully recognize that, apart from the sovereign equality of peace-loving States which is a legal concept, there are between them inequalities in the realm of facts which must be duly taken into account. Let me point out, however, that in the realm of facts there is, in another sense, complete equality between larger and smaller States: good and just ideas may and do occur to either category without regard to size or power, and I need not remind anyone that the intrinsic force of good and just ideas is very great.8 6

See Speech by E.N. Van Kleffens in the Plenary Conference of 28 April 1945, reproduced in a report by the Ministry of Foreign Affairs, Het Ontstaan van de Verenigde Naties [The Genesis of the United Nations] (1950), no. 23, 180-81. 7 Ibid. 8 Ibid., at 180.

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In the same spirit the Netherlands came with various demands in relation to the drafting of the UN Charter.9 First, it sought appropriate representation in the Security Council as a medium-sized power.10 The Netherlands also wanted to restrict the right of veto to decision making on military enforcement measures, and then only for decisions in which those Great Powers had a demonstrable direct interest themselves.11 Furthermore, the Dutch proposed that every substantive decision of the Security Council should require the agreement of at least three of the six non-permanent members.12 All these proposals eventually foundered. The Dutch delegation did, however, secure one success. In relation to Article 1 on the purposes of the UN, the Netherlands proposed to insert after the phrase ‘to maintain international peace and security’ the words ‘in conformity with the elementary principles of morality and justice and on the basis of due regard for international law’.13 Ultimately, the main aim of the new world organization, namely ‘to maintain international peace and security’, was supplemented with the phrase that this must take place with ‘due regard for principles of justice and international law’.14 The UN Charter came into force on 24 October 1945 following the Soviet Union’s ratification on 24 October 1945.15 By this action, the UN as an international organization and the

9

10 11 12 13

14 15

See United Nations, Documents of the United Nations Conference on International Organization (UNCIO), 22 vols. (1945-55). For the formal presentation of the Netherlands Delegation, see Delegates and Officials of the United Nations Conference on International Organization, UNCIO, vol. 1, 31. The Delegation consisted of 19 men and women, and was chaired by E.N. van Kleffens, Minister for Foreign Affairs, and A. Loudon, the Netherlands Ambassador to the United States. The diary of Van Kleffens on UNCIO is published in the biography by M. Riemens, ‘Majesteit, U kent het werkelijk leven niet’. De oorlogsdagboeken van minister van Buitenlandse Zaken Mr. E.N. van Kleffens [‘Majesty, You do not know real life’. The war diaries of Minister of Foreign Affairs E.N. van Kleffens] (2019), 353-79. Amendments submitted by the Netherlands Delegation to the San Francisco Conference, UNCIO, vol. 3, 314-15, and 319. See P.H. Houben, ‘The Netherlands and the United Nations’, in H.F. van Panhuys et al (eds.), International Law in the Netherlands (1979), vol. II, 45-48. Amendments submitted by the Netherlands Delegation, ibid., esp. 316-19. See the very informative report by the Ministry of Foreign Affairs, supra note 6, 162-69. Amendments submitted by the Netherlands Delegation, supra note 10, 323. It is interesting to note that adding only a reference to international law was considered to be insufficient: ‘not only because it would exclude considerations of another nature, but also because it may be doubted whether international law in spite of being subject to change and evolution, may be relied upon at all times and in all circumstances to provide a completely satisfactory standard’. Ibid., at 313; Ministry of Foreign Affairs, supra note 6, at 156-57. See 1945 Charter of the United Nations, 1 UNTS XVI, Art. 1(1). See on the diplomacy thereto S.C. Schlesinger, Act of Creation. The Founding of the United Nations. A Story of Superpowers, Secret Agents, Wartime Allies and Enemies, and Their Quest for a Peaceful World (2003). UN Charter, Art. 110(3). The Netherlands ratified the Charter on 10 December 1945.

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Security Council as one of its six principal organs, were created.16 Membership of the UN also marked the real end of the Dutch policy of neutrality. 2

Five Previous Terms on the Security Council

The Netherlands has served as a member of the Security Council in 1946, 195152, 1965-66, 1983-84, 1999-2000 and most recently in 2018. This section highlights how the Netherlands has previously used its role as an elected member of the Council to contribute to the peaceful resolution of inter-state disputes and towards achieving the other goals of the UN. The section also provides an insight into the particular problems the Council was pre-occupied with during these respective periods. 2.1 1946 In addition to the P5 (China, France, UK, US and USSR), the original version of the UN Charter allocated six seats to elected members. During the first term of the Council, these elected seats were filled by Australia, Brazil, Egypt, Mexico, Poland and the Netherlands.17 Pursuant to Article 23(2) of the Charter, three of the non-permanent members were to be chosen for a term of one year only— of which the Netherlands was one.18 During its first term, the Netherlands was directly involved or contributed to a solution in three disputes before the Security Council. First, the Dutch representative played a key role in relation to the dispute between Iran and the Soviet Union. Iran took issue with the stationing of Soviet Union troops on its territory. The Tripartite Treaty of Alliance of 29 January 1942 allowed Allied forces to be present on Iranian territory but required that they not occupy the area and minimize the effect of their presence.19 Iran considered that the Soviet troops were acting inconsistently with the treaty by preventing the home state from exercising power in certain areas. This was rejected by the Soviet Union.20 After ascertaining that both parties were willing to reach a diplomatic solution, Minister Van Kleffens prepared a draft resolution which stated that 16 UN Charter, Art. 7. 17 UN Doc. A/64 (1946). 18 Ibid. 19 Between the Union of Soviet Socialist Republics, Great Britain and Iran. See Appendix No. 1 for a reproduction of the Tripartite Treaty of Alliance in ‘Documents submitted to the Security Council at its Third Meeting, 28 January 1946, by the Delegation of Iran’, UN Doc. S/3 (1946), at 30. 20 UN Doc. S/PV.2 (1946); S/PV.3 (1946).

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Iran and the Soviet Union should jointly search for a solution for their dispute, without interference from the Council.21 This resolution was, after some adjustments, adopted and the Council closed its first ‘case’ under Chapter VI— ‘The Pacific Settlement of Disputes’—of the Charter.22 Secondly, the Netherlands sought to contribute to solving a dispute raised by the Soviet Union. The Soviet Union complained that the British troops present in Greece were exerting pressure on the latter’s internal political affairs, while Britain argued that its troops were there to help the Greek government fight against communist rebels. Addressing the Council, Greece confirmed that the troops were there with its consent and that the communist rebels were supported by, among other countries, Yugoslavia.23 After lengthy discussions, Minister Van Kleffens submitted a draft resolution providing that: Greece and Yugoslavia were to be able to participate in further discussions on the matter without the right to vote; Albania and Bulgaria were also to be invited to make a statement; and Albania and Bulgaria were to be invited to participate in further discussions if the Council deemed that necessary.24 The first two points were unanimously accepted, and the last by majority.25 The third dispute directly involved the Netherlands. The Ukrainian Socialist Soviet Republic had referred the issue of Indonesia to the Council26—which at the time was still a colony of the Netherlands under the name of the Netherlands East-Indies. After Japan’s occupation during World War Two, British troops were stationed in Indonesia which—according to Ukraine—were suppressing the Indonesian population.27 Britain conversely argued that its troops were in the country with the consent of the Netherlands to assist in returning the occupied territories back to the Netherlands as the sovereign authority.28 Unsatisfied, Ukraine proposed a draft resolution condemning the British actions in Indonesia, granting the Indonesian people a right to choose their own form of government, and providing for a commission to be sent to Indonesia to explore the situation.29 Britain resisted the draft resolution, which was subsequently reduced to the last paragraph concerning the establishment of a commission to establish peace and report back to the Council. However, in 21 UN Doc. S/PV.5 (1946). 22 UN Doc. S/RES/2 (1946). 23 UN Doc. S/PV.6 (1946). 24 UN Doc. S/PV.82 (1946). 25 UN Doc. S/RES/12 (1946). 26 UN Doc. S/PV.2 (1946). 27 UN Doc. S/PV.12 (1946). 28 Ibid. 29 Only Poland and the USSR voted in favour.

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the end only two members of the Security Council voted in favor of the draftresolution and the dispute was not discussed further during 1946.30 2.2 1951-52 After serving a one-year term on the Security Council in 1946, the Netherlands soon took up a second term between 1951-52.31 During this time, the Security Council faced a number of disputes—one of which related to Kashmir. When the British colony (British India) became independent, two new dominions were formed: India and Pakistan.32 Kashmir was, under the British Indian Independence Act, free to join India or Pakistan or to seek independence.33 This proved problematic. Tensions escalated after both India and Pakistan sent troops to the region, at which point newly-independent India brought the matter to the Security Council.34 On 21 March 1951, the month that the Netherlands chaired the Council, the UK and the US tabled a draft resolution in which they called inter alia for the demilitarization of the conflict, for a referendum to decide the fate of the region, and if necessary, arbitration if the dispute was not resolved.35 India indicated that they would not agree with arbitration as a solution for the dispute.36 Both parties had agreed on certain principles for the solution of the problem but they disagreed on the interpretation and implementation of these principles. Referring to Article 33 of the Charter—which states that members of the UN shall settle disputes through peaceful means—the Netherlands delivered a speech in which it emphasized the importance of arbitration in cases such as these. As a number of these peaceful methods had been tried without success, the Netherlands considered that arbitration was a ‘logical’ next step.37 The resolution eventually adopted did not require the parties to resolve the dispute 30

UN Doc. S/PV.18 (1946). For a full report see Indonesië in de Veiligheidsraad van de Verenigde Naties ( January 1946-September 1947) [Indonesia in the Security Council of the United Nations (January 1946- - September 1947)], Ministry of Foreign Affairs, Report no. 5 (1947), 7-16 31 UN Doc. A/PV.290 (1950). See the Reports De Veiligheidsraad in 1951 [The Security Council in 1951], Ministry of Foreign Affairs, 1952, Report no. 27, and De Veiligheidsraad in 1952 [The Security Council in 1952], Ministry of Foreign Affairs, 1953, Report no. 30. 32 Indian Independence Act 1947, Chap. 30. 33 Ibid., Art. 2. 34 UN Doc. S/PV.226 (1948). 35 UN Doc. S/PV.537 (1951). Prior to this, the Security Council had adopted several resolutions concerning the Kashmir conflict, but none of them provided a permanent solution. For example, UN Docs. S/RES/38 (1948), S/RES/51 (1948) and S/RES/80 (1950). 36 UN Doc. S/PV.538 (1951). 37 Ibid.

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through arbitration—however it ‘[c]alls upon the parties, in the event of their discussions with the United Nations representative failing in his opinion to result in full agreement, to accept arbitration upon all outstanding points of difference…’.38 Another dispute which the Netherlands sought to assist in resolving was that between the UK and Iran concerning the nationalization of the AngloIranian Oil Company (AIOC). Iran nationalized the AIOC and in so doing— according to the UK—breached a treaty between Iran and the AIOC. The UK therefore instituted legal proceedings before the ICJ.39 While the Iranian government argued that the matter was an internal affair and that the Court had no jurisdiction, the Court nevertheless issued provisional measures in an Order of 1951.40 To ensure that these measures were implemented, the Order noted that a Board of Supervision was to be established comprising two members selected by the UK, two members selected by Iran and an independent member. The Iranian government refused to comply with the provisional measures and withdrew its recognition of the jurisdiction of the ICJ.41 The British therefore sought a meeting in the Security Council to discuss the matter. Opinions were divided as regards the Council’s interest in the matter: the Soviet Union argued that this was an internal affair for Iran, while the Netherlands argued that the Security Council was competent to take note of the dispute, referring to Article 94 of the Charter. After the agenda was accepted (with two votes against, those of the Soviet Union and Yugoslavia),42 the UK proposed a draft resolution in which the Council would call upon Iran to act in conformity with the verdict of the ICJ.43 Several Security Council members thought that this was too farreaching. A new draft resolution was therefore prepared excluding any reference to the verdict of the ICJ but calling upon parties to resolve the conflict.44 From the Netherlands’ perspective, the omission of any reference to the ICJ’s decision was unfortunate. The Netherlands emphasized the significance of the ICJ, in particular for small countries, and lamented its limited use by mem38 39 40 41 42 43 44

Concerning the India-Pakistan question submitted by the Representatives of United Kingdom and United States and adopted by the Security Council on March 30, 1951. UN Doc. S/RES/91 (1951), para. 6. Anglo-Iranian Oil Co. case (United Kingdom v. Iran), Application Instituting Proceedings, 26 May 1951. See also Art. 36, para. 2, of the Statute of the ICJ. Anglo-Iranian Oil Co. Case (United Kingdom v. Iran), Order for Provisional Measures, 5 July 1951, [1951] ICJ Rep. 89. See Art. 36, para. 2, ICJ Statute. UN Doc. S/PV.559 (1951). UN Doc. S/2358 (1951). UN Doc. S/2358/Rev.2 (1951).

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bers.45 In the end, however, the draft resolution did not garner the required number of votes to be passed. 2.3 1965-66 The Kashmir dispute came before the Council again in 1965 when the Netherlands was serving its third term on the Council.46 After lengthy informal consultations, Ambassador De Beus introduced a draft resolution demanding a ceasefire between India and Pakistan in Kashmir.47 The resolution also committed the Council to consider ‘what steps could be taken to assist towards a settlement of the political problem underlying the present conflict’ and called ‘on the two Governments to utilize all peaceful means, including those listed in Article 33 of the Charter of the United Nations, to this end’. This resolution was adopted (with one abstention by Jordan) on 20 September 1965, with the ceasefire to come into effect two days later.48 The Council President at the time (US) acknowledged, following the resolution’s adoption, ‘the important contribution made by the representative of the Netherlands to the work of the Council today in the preparation, in the drafting and in the negotiation of the resolution which has been adopted. … It was, as I can bear witness, not an easy task.’49 2.4 1983-84 This was the first Dutch term in an expanded Security Council, now with ten instead of six non-permanent members. Despite this increased number, the Netherlands was politically the only rotating western-aligned member on the Council. The other WEOG member on the Council, Malta, was in those days part of the group of eight Non-Aligned Movement members on the Council.50 The remaining non-permanent member was from the Eastern European group and still under communist rule—Poland in 1983 and the Ukrainian Soviet Socialist Republic in 1984. As a result, the Netherlands was frequently caught between the western permanent members on the one hand, and the nonaligned members on the other, especially as regards further sanctions against 45 46 47 48 49 50

UN Doc. S/PV.563 (1951). See Report De Veiligheidsraad in 1965 [The Security Council in 1965], Ministry of Foreign Affairs, 1966, Report no. 82, 64-87. See Draft Resolution submitted by the Netherlands (on the situation between India and Pakistan), UN Doc. S/6694 (1965). UN Doc. S/RES/211 (1965). UN Doc. S/PV.1242 (1965), paras. 103 and 104. A forum of currently 120 developing world states that are not formally aligned with or against any major power bloc.

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South Africa. The term was—as is often the case—dominated by a series of conflict situations, including in the Middle East, Africa and Central America. On top of all of this, a serious aviation incident with a Korean Airlines Boeing 777 on 1 September 1983 caused considerable tension between South Korea and the USSR. On several of these hotbeds it was the Netherlands which initiated debates in the Council and submitted draft resolutions. In this section three such initiatives are discussed by way of example. As regards the management of the crisis in Lebanon, the warring factions agreed on a temporary truce and an agenda for national reconciliation in 1983. Part of the agenda related to the withdrawal of all Israeli and other foreign troops, with the exception of those of UNIFIL. This also led to the evacuation of the PLO headquarters and 3000-4000 PLO combatants from Lebanon to Tunis on the basis of Resolution 542 (1983). Intensive negotiations on the modalities of the evacuation took place under the Dutch presidency in December 1983. This resulted in an agreement on the initiative of France, Algeria and Jordan that the evacuation ships would carry both the national flags of the countries of registration and the UN flag as a symbol of international political support. The consent for this was not expressed in a resolution but through a statement of the Secretary-General to the Council outlining the modalities of this operation on purely humanitarian grounds.51 Thereupon, the Dutch Ambassador Van der Stoel confirmed, as Council President and after consultation with the other Council members, that the statement of the Secretary-General had the Council’s support. The Council was also faced with a re-escalation of the war between Iran and Iraq during the Netherlands’ term. The war, which commenced in September 1980, saw Iraq occupy Iranian territory in the south-western province of Khuzestan and the oil installations there.52 The Council had in vain called upon the two states to exercise restraint, observe a ceasefire and withdraw troops behind internationally recognized boundaries.53 When in early 1983 hostilities once again escalated, a fact-finding mission was dispatched to assess the damage in the area concerned. The mission reported that Iranian cities had been ‘heavily damaged’ and suffered ‘almost total devastation’, while Iraqi cities had suffered light damage only.54 Prompted by intended arms supplies by France 51 52 53 54

UN Doc. S/16194 (1983). In his statement, the Secretary-General sought ‘the understanding of the Council on this matter’, at 2. See I.F. Dekker and H.G. Post (eds.), The Gulf War of 1980-1988 (1992). For example, see the unanimously adopted Council Resolutions 479 on 28 September 1980, 514 on 12 July 1982 and 522 on 4 October 1982. ‘Mission to inspect civilian areas in Iran and Iraq which have been subject to military attack: Report of the Secretary General’, UN Doc. S/15834 (1983).

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to Iraq, negotiations resumed in 1983 on a ceasefire. In view of a stalemate amongst the western members of the Council, the Netherlands submitted a draft resolution on its own in October 1983. Major elements included: a preambular reference to the UN report on damage to civilian areas; a call for an immediate truce in the Gulf area—including all sea straits, navigable waterways, harbour works, terminals, offshore installations and ports with direct or indirect access to the sea; dispatch of a UN observer mission to monitor the ceasefire; condemnation of breaches of international humanitarian law as well as a call for an immediate cessation of the shooting at civilian targets; and a request to all states to abstain from acts which could lead to a prolongation of the war.55 The Dutch proposal was received relatively positively in pre-consultations— though opinions differed including on how to monitor the ceasefire. After a series of informal consultations and various stalemates, a modified draft was tabled by Guyana, Zaire and Togo, reportedly initiated by France. By way of a concession to Iran, the Council confirmed the desirability of ‘an objective determination of the causes of the war’. In a vote on 31 October 1983, this text was adopted as Resolution 540 (1983), with 12 votes in favour and abstentions from China, Pakistan and the USSR. Both Iran and Iraq dissociated themselves from parts of the text. In early 1984, a new wave of escalations took place during which Iraq employed chemical weapons. Ambassador Van der Stoel undertook a series of informal consultations on how to respond to the use of chemical weapons, as testified by a group of independent experts sent by the Secretary-General to Iran. Thereupon, the Netherlands informally circulated the text of a draft resolution which ultimately led to a Presidential Statement on 30 March 1984. Furthermore, in response to the continued attacks on international shipping, Resolution 552 was adopted on 1 June 1984, with 13 votes in favour and 2 abstentions (Nicaragua, Zimbabwe). Upon the basis of an amendment of the Netherlands, a new operative paragraph one was adopted to call upon ‘all States to respect, in accordance with international law, the right of freedom of navigation’. Various other investigations regarding the Iran/Iraq conflict were to take place in 1984, both as regards the use of chemical weapons by Iraq and the treatment of Iraqi prisoners of war by Iran. All of this ultimately resulted in 1987 in the landmark Resolution 598 by the Council, containing a comprehensive peace package including a ceasefire, supervised withdrawal of troops, repatriation of 55

See Report De Veiligheidsraad in 1983 [The Security Council in 1983], Ministry of Foreign Affairs, 1984, Report no. 131, 32-40, at 36-37; and Report De Veiligheidsraad in 1984 [The Security Council in 1984], Ministry of Foreign Affairs, 1985, Report no. 134, 32-41.

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prisoners of war, inquiry into the responsibility for the conflict and economic reconstruction. Another debate regarded South Africa, against which country the Security Council had enacted a binding arms embargo in Resolution 418 of 4 November 1977. Acting under Chapter VII, the Council determined, having regard to the continued apartheid policies and acts of South Africa, that ‘the acquisition by South Africa of arms and related matériel constitutes a threat to international peace and security’.56 The supervisory arms embargo committee of the Council, established by Resolution 421 (1977), had submitted a report with recommendations on how to make the mandatory arms embargo more effective in 1980.57 The UK, France and the US especially expressed reservations on the recommendations and hence the report was shelved. In June 1984, the Netherlands took up one of the recommendations, namely to supplement the arms supply embargo with a ban on the importation of arms produced in South Africa, i.e. an arms boycott. The rationale was that South Africa’s capacity to manufacture armaments undermined the effectiveness of the arms embargo against it. Initially, there was little support. However, in light of the deteriorating situation in South Africa the Netherlands tabled its proposal once again in November 1984. This time there was support, but the non-aligned countries supported by the USSR and Ukraine wanted this additional sanction to be mandatory as well, a proposal which the UK and the US announced they would veto. A second issue of discussion was the scope. The Netherlands had related the boycott to ‘arms and related matériel of all types’ as in Resolution 418 (1977). Other members preferred the more concrete phrase of the initial sanctions Resolution 181 (1963): ‘arms, ammunition of all types and military vehicles’. A third issue was the extent of supervision by the arms embargo committee. The UK advocated a limited role for the Security Council, while the non-aligned countries advocated for an extensive one. In the end, a compromise was reached. The proposed resolution included a non-mandatory boycott (just as the arms embargo started in Resolution 181 (1963)), the concrete language of the 1963 Resolution for the scope and, as regards supervision, for the Secretary-General to report to the arms embargo committee on the implementation of the resolution. Furthermore, the text linked the new resolution to the arms embargo Resolution 418 (1977) through an explicit reference. On the basis of the revised Dutch proposal the Council unanimously adopted Resolution 558 (1984) on 13 December 1984, thereby extending the sanctions package against South Africa.

56 57

UN Doc. S/RES/418 (1977), para. 1. See UN Doc. S/14179 (1980).

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2.5 1999-2000 During this term the Netherlands played an especially key role in the 1999 East Timor crisis. An independence referendum was held in East Timor on 30 August 1999 in which the population voted overwhelmingly to reject the offer of special autonomy from Indonesia, thus expressing its wish to begin a process of transition towards independence. Following the announcement of the results on 3 September 1999, violence broke out. Having just assumed the presidency of the Security Council, Ambassador Van Walsum was called upon to address the issue. During informal consultations on 5 September 1999, Van Walsum proposed the establishment of a fact-finding mission comprising five Security Council members to investigate the crisis in East Timor. After receiving the ‘green light’ from Indonesia, he proceeded to appoint the members of the mission the following day. As there were no rules for how to proceed, Van Walsum did so under his authority as the President. Looking back at this, he noted: I was surprised – but tried not to show it – that each member of the Council found it normal that I did so on my own authority. There were three permanent representatives who later admitted to me they would have liked to be on the mission themselves, but none of them gave the slightest hint that they felt I should have handled this differently.58 The mission was discharged later that same day to East Timor and returned on 14 September 1999. In the interim, Van Walsum convened an open meeting on 11 September during which the Secretary-General and 52 UN member states addressed the Council.59 Around this time, Indonesia’s President Habibie informed the UN Secretary-General of Indonesia’s readiness to accept international peacekeeping forces through the UN to restore peace and security in East Timor. On 15 September 1999, acting under Chapter VII of the Charter, the Security Council authorized the establishment of a multinational force in East Timor.60  58

59 60

Nederlandse Vereniging voor de Verenigde Naties, ‘Peter Van Walsum talks about the interventions of 1999: Kosovo and East Timor’ (9 August 2014), http://nvvn.nl/peter-vanwalsum-talks-about-the-interventions-of-1999-kosovo-and-east-timor/. See also P. Van Walsum, ‘The Security Council and the Use of Force: Kosovo, East Timor and Iraq’, in N.M. Blokker and N.J. Schrijver (eds.), The Security Council and the Use of Force. Theory and Reality – A Need for Change (2005), 65-74. UN Doc. S/PV.4043 (1999). UN Doc. S/RES/1264 (1999), unanimously adopted. See also UN Press, ‘Security Council Authorizes Multinational Force in East Timor’, UN Doc. SC/6727 (1999). This Resolution

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The 2018 Term

The Netherlands’ five previous terms set the stage for its sixth term in 2018. It was a hard won one-year membership, to be performed in a far from conducive international political climate. 3.1 A Split Term The Netherlands became a member of the Council in January 2018, but only for one year. After five rounds of voting in the 2016 elections,61 neither Italy nor the Netherlands had received the requisite two thirds majority of votes in the General Assembly for election to the Council. To resolve this stalemate, the countries reached an agreement whereby they would split the term.62 In a letter to the President of the General Assembly, the permanent representatives of both states communicated that: It is the intention of our two countries, in view of the inconclusive results of the elections for the last remaining non-permanent seat on the Security Council for the Western European and Others Group for the term 2017-2018, to split this term.63 The letter set out the steps that the two countries would take to give effect to this arrangement. In the letter, the Netherlands indicated its withdrawal

61

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led to the establishment of UNTAET, the United Nations Transitional Administration for East Timor. See UN Press, ‘General Assembly Elects 4 New Non-Permanent Members to Security Council, as Western and Others Group Fails to Fill Final Vacancy’, UN Doc. GA/11796 (2016). See also Security Council Report, ‘Security Council Elections: Italy and the Netherlands Agree to a Split Term’, What’s in Blue, 29 June 2016. Split terms were first agreed to in 1955 between the Philippines and Yugoslavia after 35 rounds of inconclusive voting. Following this, there were also split terms between Turkey and Poland (1960-1); between Ireland-Liberia (1961-2); between Romania and the Philippines (1962-3); and between Czechoslovakia and Malaysia (1964-5). Hence, since the expansion of the Security Council from 11 to 15 members, there were not any split terms until 2017. See L. Sievers and S. Daws, The Procedure of the UN Security Council (2014), 133 and 139; and Security Council Report, ‘Security Council Elections: Italy and the Netherlands Agree to a Split’, What’s in Blue, 29 June 2016. ‘Letter dated 29 June 2016 from the Permanent Representative of Italy to the United Nations and the Permanent Representative of the Kingdom of the Netherlands to the United Nations addressed to the President of the General Assembly’, 29 June 2016, www.permanentrepresentations.nl/binaries/nlatio/documents/publications/2016/10/04/letters-toconfirm-split-term-italy---netherlands/letters-to-confirm-split-term-italy---netherlands. pdf.

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of its candidacy in favour of Italy. Following this, another election would be held whereby Italy would obtain the necessary majority, taking up the seat on the Council from 1 January 2017.64 After relinquishing the seat on 31 December 2017, the Netherlands would take over from 1 January 2018 for the second year of the term. In preparation for this, a by-election for the remainder of the term—in which the Netherlands would be the only candidate—was to be held in the General Assembly in June 2017. On reaching the agreement, the permanent representatives of both states committed to a close partnership. Following the Brexit referendum a few days earlier, there was an appetite for unity within the EU. In a media statement following the tied vote, Paolo Gentiloni, Minister for Foreign Affairs and International Cooperation of Italy, referred to the agreement as ‘a message of unity’, a sentiment shared by his Dutch counterpart minister Koenders.65 Prior to Italy commencing its term, the countries signed a statement outlining their planned collaboration and joint priorities.66Arrangements were also made to exchange information and staff—with secondments of Foreign Service officers between the Ministries of Foreign Affairs in Rome and The Hague.67 The split-term arrangement was nevertheless at odds with the text of Article 23 of the UN Charter which stipulates that ‘non-permanent members of the Security Council shall be elected for a term of two years’. The legal and political soundness of such an arrangement is questionable. The ten non-permanent members (five of which are elected every five years) are already at a disadvantage in relation to the five permanent members on the Council who also possess a veto. Halving the term of non-permanent members increases this disadvantage. Nevertheless, as the Dutch saying goes: half an egg is better than 64

65 66 67

In an unrestricted ballot on 30 June 2016, Italy received a total of 179 votes, thereby meeting the requisite two thirds majority needed for election to the Security Council. Rule 140 of the Rules of Procedure of the General Assembly provides that: ‘Should a member cease to belong to a Council before its term of office expires, a by-election shall be held separately at the next session of the General Assembly to elect a member for the unexpired term.’ Rules of Procedure of the General Assembly, UN Doc. A/520/Rev.17. UN Web TV, ‘Paolo Gentiloni (Italy) and Albert Koenders (Netherlands), candidates for Non-Permanent Member of the Security Council—General Assembly Media Stakeout’, 28 June 2016. Government of the Netherlands, ‘Netherlands and Italy to work in concert on Security Council’, 22 September 2016, https://www.government.nl/latest/news/2016/09/22/netherlands-and-italy-to-work-in-concert-on-security-council. See ‘Letter of 27 October 2017 from the Minister of Foreign Affairs and the Minister for Foreign Trade and Development Cooperation to the Chairperson of the House of Representatives on the Netherlands’ upcoming non-permanent membership of the UN Security Council’, 27 October 2017, Parliamentary Paper 26 150, no. 168.

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an empty shell. The Netherlands was keen to make a contribution, and one year as a non-permanent member made this more achievable than none. 3.2 The Priorities According to a letter to Parliament on 27 October 2017 by the new Ministers Zijlstra (Foreign Affairs) and Kaag (Development), the Dutch government initially intended to focus on five themes: ‘security for all, worldwide’; conflict prevention through a broader focus on underlying causes; modern security threats; UN reform; and enhanced European co-operation (‘European where possible and opportune’).68 A shortlist of thematic priorities is important to enhance a non-permanent member’s effectiveness on the Council. Experience shows, however, that the number of planned debates is quickly whittled down. In recent years, 70 per cent of the agenda and debates of the Council is consumed by country-specific situations—mostly under urgency—and the year 2018 was certainly no exception.69 Indeed, urgent issues in Yemen, Syria, Myanmar, Congo, South Sudan and North Korea last year prevailed over the Netherlands’ priorities listed above.70 In the end, therefore, the Netherlands focused its efforts on three themes: (1) joint action to improve the functioning of UN peacekeeping operations; (2) conflict prevention, with attention to root causes of conflicts including climate and water-related risks; and (3) reinforcement of the rule of law, including prosecution and trial of perpetrators of international crimes and strengthening of police, justice and corrections. A key characteristic of the Dutch membership in the Council in 2018 was the joint effort of the four countries of the Kingdom: the Netherlands, Curaçao, 68 Ibid. 69 See United Nations, ‘Highlights of Security Council Practice 2018’, https://unite.un.org/ sites/unite.un.org/files/app-schighlights-2018/index.html. In regard to the agenda of the Security Council, Chart 9 indicates that the percentage of meetings on country-specific/ regional situations vis-a-vis thematic and other issues was 72% to 28% in 2018. Further, of the 72% (206) of the meetings of the Council that dealt with country-specific or regional situations, Africa accounted for 50% (103) of the meetings, followed by the Middle East with 32.5% (67), Europe with 7.8% (16), Asia with 5.3% (11), and the Americas with 4.4% (nine) each. 70 In 2018, the Security Council adopted a total of 54 resolutions: the numbers 2398 through 2451 (2018). Only a handful dealt with thematic topics such as protection of civilians in armed conflict (Res. 2417), youth, peace and security (Res. 2419), children and armed conflict (Res. 2427), peace operations (Res. 2436), Ebola and peace and security in Africa (Res. 2439) and UN peacekeeping operations (Res. 2447). During the presidency of the Netherlands in March 2018, the Council adopted five resolutions on, respectively, Afghanistan, Sudan and South Sudan, North Korea, Somalia and the Democratic Republic of Congo.

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Sint Maarten and Aruba. The three Caribbean countries were not only intensively involved in the campaign for membership in order to obtain the votes of small island states, but their prime ministers and ministers also represented the Kingdom in Security Council debates on several occasions, including Prime Minister Rhuggenaath of Curaçao during the debate in July 2018 on climate change and security in the Security Council.71 3.3 Composition of the Council in 2018 In 2018, no fewer than five EU member states sat on the Security Council: the UK, France, Sweden, Poland and the Netherlands. In accordance with the First Chamber (Senate) motion, the Netherlands was required to strive for strong EU co-operation during its term.72 This, however, was not always easy—with the UK in the throes of Brexit, French diplomacy remaining inimitable at times, Sweden’s position as a neutral global bridge-builder and non-NATO-member, and the strained relations between Poland and Brussels. In addition to these five EU states and the three other permanent members (China, Russia and the US), Bolivia, Peru, Ethiopia, Equatorial Guinea, Ivory Coast, Kazakhstan and Kuwait were also members of the Council in 2018. As is usually the case, the elected members (E10) did not form a coherent group. Nevertheless, as always they had a key role to play in light of the nine votes required for valid decision-making in the Council.73 This role was enhanced by strained relations among the P5. Tense relations between Russia and the US underscored almost all major issues within the Council in 2018—Syria, Myanmar (and the Rohingya crisis), Southern Sudan, Iran and Venezuela to name a few. The situation still however cannot be compared with relations during the Cold War, which stymied the work of the Council. 3.4 Presidencies The monthly reports to parliament show how active the Netherlands was on the Council in 2018.74 Apart from UN Ambassadors Karel van Oosterom and Lise Grégoire-van Haaren, Prime Minister Rutte and Ministers Kaag and Blok 71

72 73 74

See Kingdom of the Netherlands, ‘Security Council Debate: Climate-related security risks, Statement by His Excellency Mr. Eugene Rhuggenaath, Prime Minister of Curaçao’, 11 July 2018. Similarly, the Prime Minister of St Maarten, addressed the Council on the resolution regarding Haiti on 6 September 2018. See Motion De Graaf, Parliamentary Paper 34 550 D, 1 November 2016. See UN Charter, Art. 27, para. 3. See the monthly reports in the parliamentary letters on the meetings of the Council of EU ministers of foreign affairs, available in the file  www.eerstekamer.nl/eu/kamerstukdossier/raad_algemene_zaken_en_raad.

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regularly visited the Security Council and participated in debates, especially those during the Dutch presidency of the Council in March 2018. On International Women’s Day, 8 March 2018, Minister Kaag (Development Cooperation), who has extensive UN-experience, presided over an impressive Council meeting with mainly female representatives and emphasized women’s participation in the peace process in Afghanistan, as a follow-up to earlier thematic Resolution 1325 (2000).75 Another substantive contribution in March under the presidency of Kaag was the debate on conflict and hunger, which later—on the initiative of the Netherlands, Ivory Coast, Kuwait and Sweden—resulted in the unanimous adoption of Resolution 2417 (2018). This resolution seeks to ban the starving of population groups as an instrument of warfare.76 It also provides humanitarian organizations with the opportunity to inform the Council at an early stage of imminent famine in a conflict situation and to criminalize starvation as a weapon of war. It was a delicate reminder to the Council that it is authorized to take sanction measures against individuals or groups that block humanitarian aid.77 In 2018, this resolution was invoked to ring the alarm about the situation in Yemen and South Sudan. The Dutch presidencies of the North Korea Sanctions Committee and the monitoring body for compliance with the Iran nuclear deal (Resolution 2331), in addition to the Netherlands’ role as the so-called penholder on Afghanistan,78 offered interesting opportunities for it to be visible and to make a special effort. These roles were not straightforward: how to curb the reckless behaviour of North Korea and, at the same time, to establish a dialogue with the prospect of improving the fate of the North Koreans, with ever-accumulating sanctions? And how to continue to advance the fragile Iran nuclear-deal, with the US’s removal from the deal?79  On both fronts, the Netherlands made a serious effort to facilitate a dialogue and make as much progress as possible.

75

76 77 78 79

This resolution, which addresses the effects of war and armed conflict on women and girls, including sexual violence, and the important role of women in peace negotiations and reconstruction, dates back to a joint initiative of among other countries Canada and the Netherlands during their 1999-2000 term on the Security Council.  See UN Doc. S/ RES/1325 (2000). See UN Doc. S/RES/2417 (2018). Ibid., para. 9. This meant that the Netherlands acted as co-ordinator for all Security Council resolutions and statements on Afghanistan in 2018. See in particular UN Doc. S/RES/2405 (2018). See the Iran nuclear deal, included in UN Doc. S/RES/2231 (2015), adopted on 20 July 2015.

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3.5 Peace and Security in Specific Country Situations In many ways, 2018 was a dark year. The conflicts in Myanmar, Syria and Yemen continued unabated, while new ones emerged in Burundi, Cameroon and Venezuela, among other countries. The strongest country resolution regarding Yemen came with the endorsement of the Stockholm Agreement on a ceasefire and for humanitarian access to the city of Hodeida.80 Unfortunately, the stalemate between the major powers (especially the US and Russia) over the conflict in Syria continued in 2018, with only two resolutions with provisions on humanitarian aid crossing a Russian veto.81 During its membership of the Council, the Netherlands repeatedly encouraged compliance with international law and co-operation with international courts and tribunals, including those housed in The Hague. If at all possible, proposed resolutions included paragraphs on the rule of law, respect for human rights and individual criminal responsibility for international crimes. Proposals by the Dutch to refer the situation in Myanmar and Syria to the International Criminal Court, or for recognition of the genocide against the Yazidi in Iraq and Syria, were all rejected. In June, however, the Netherlands succeeded in adding to the UN sanctions list for Libya six names of criminal network leaders guilty of human trafficking and smuggling.82 This initiative was approved unanimously by the Security Council and was aimed at tackling the human rights situation of migrants and refugees in Libya. As a result, the acts of human smugglers now counts as a violation of human rights and a threat to peace and security. Finally, Minister Blok on 29 May 2018 made a speech in the Security Council calling on the co-operation of all states to assist in seeking truth and justice in relation to the downing of MH17 in Eastern Ukraine, leading to the reaffirming of Resolution 2166 (2014) in a Presidential Statement in June 2018.83 3.6 More Robust Peace Operations A continuing focus of the Netherlands throughout 2018 has been the improvement of the functioning of UN peacekeeping operations. During its presidency of the Security Council, the Netherlands held a high-level open debate chaired 80 81 82 83

UN Doc. S/RES/2451 (2018). A similar previous cease-fire to ensure humanitarian access to East Ghouta and Raqqa, among other places in Syria, only lasted for a short time, UN Doc. S/RES/2401 (2018). See UN Doc. S/RES/2401 (2018), adopted 24 February 2018, and UN Doc. S/RES/2449 (2018), adopted 13 December 2018. UN Press, ‘Security Council Committee concerning Libya Adds Six Individuals to its Sanctions List’, 7 June 2018, UN Doc. SC/13371 (2018). UN Doc. S/PRST/2018/12 (2018).

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by Prime Minister Mark Rutte on ‘collective action to improve United Nations peacekeeping operations’.84 In close consultation with Secretary-General Guterres, an action plan was sought for peacekeeping operations, with an emphasis on the need for sufficient financial resources and adequate equipment for peacekeepers as well as a clear mandate.85 Following this, the rule of law component of peacekeeping missions was strengthened and the integrated approach to security, justice and human rights was emphasized, first in a comprehensive Presidential Statement of May 2018 and later in resolutions, including one adopted under the presidency of President Trump on 21 September 2018.86 The Dutch efforts to improve peacekeeping operations ultimately culminated in the adoption of Resolution 2447 on 13 December 2018, on the initiative of Ivory Coast and the Netherlands.87 The resolution addresses, among other things, better training of police and peace soldiers, the need for independent judges, and the construction of safe prisons. This enhanced rule of law dimension had already been applied in the renewed mandates for the extension of the UN missions in Afghanistan and Mali.88 3.7 Security Council Reform With the crises in Libya, Ukraine, Syria, Yemen and the threat of international terrorism, almost no attention was paid to the issue of Security Council reform in 2018. The Dutch ambitions in this area had to be limited to striving for more transparency by involving as many civil society organizations in the work of the UN as possible and by maintaining strong media contacts, also through

84

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86 87

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See UN Doc. S/PV.8218 (2018) for a record of the open debate on 28 March 2018. See also UN Press, ‘Quantum Leap in Collective Engagement Needed to Meet Serious Peacekeeping Challenges, Secretary-General Tells Security Council Open Debate’, UN Doc. SC/13268 (2018). Among the initiatives and reports, it can be noted that on the basis of an Independent Report entitled ‘Improving Security of United Nations Peacekeepers’ (19 December 2017), an Action Plan for Peace-keeping was established (January 2018). See also the ‘Report of the Secretary-General on Peacebuilding and Sustaining Peace’, UN Doc. A/72/707 and S/2018/43 (2018) and S/RES/2417 (2018). See UN Doc. S/PRST/2018/10 (2018) and UN Doc. S/RES/2436 (2018). All reports are available at: https://peacekeeping.un.org/en/reports. UN Doc. S/RES/2447 (2018). See ‘Concept note for the Security Council open debate on the theme “Collective action to improve United Nations peacekeeping operations: supporting greater impact and performance in today’s complex and high-risk environments”’, UN Doc. S/2018/184 (2018). See for instance the renewed mandate for UNAMA, with identifies improving governance and the rule of law as a priority area. UN Doc. S/RES/2405 (2018), see in particular paras. 6 and 7.

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interactive communication.89 Furthermore, it consistently fostered a strong co-ordination at EU level. 4

Reflections and Conclusions

Membership of the Security Council remains a prominent position that offers opportunities in international politics. Niches for elected members certainly exist. While at a disadvantage (compared to the permanent members), non-permanent members can make a difference on the Council if they are properly prepared and represented by competent diplomats. Recent examples show this. In December 2016, non-permanent members New Zealand, Malaysia, Senegal and Venezuela co-sponsored a widely supported (14 in favour, US abstaining) resolution criticizing Israel’s illegal settlement policy.90 Earlier, Luxembourg managed to broker more transparency and accountability in the multiple sanction regimes of the Council (North Korea, Libya, Sudan, Da´esh/Al-Qaida and Taliban, to mention only a few examples) during its 201314 term. In a similar vein, Brazil was actively committed to protecting civilians during UN peacekeeping operations under the motto of ‘responsibility while protecting’.91 After intense negotiations, Luxembourg, Australia and Jordan successfully co-authored a resolution that was unanimously adopted in 2014 regarding humanitarian access in Syria.92 During its 2018 term, the Netherlands achieved a number of results, notwithstanding the fact that this was a year of complex and difficult international relations. Obviously, the one year term compounded these difficulties and made the margins in which to make a difference even more narrow—but there were nevertheless opportunities. The successes were due to the professional commitment of the diplomats in New York and The Hague and the ministers and prime minister. The results, including the resolution on conflict and hunger, the presidential statement to improve the effectiveness and safety of 89 See https://magazines.rijksoverheid.nl/bz/veiligheidsraad2018/2018/05/resultaten, among other sources. 90 UN Doc. S/RES/2334 (2016). 91 ‘Responsibility while protecting: elements for the development and promotion of a concept’, Annexed to Letter dated 9 November 2011 from the Permanent Representative of Brazil to the United Nations addressed to the Secretary-General, UN Doc. A/66/551– S/2011/701 (2011). See also L. Bogliolo Piancastelli de Siqueira, ‘The Responsibility to Protect and the Responsibility While Protecting: An Analysis of Humanitarian Intervention and the Developing World’, 20 August 2012, http://papers.ssrn.com/sol3/papers. cfm?abstract_id=2201588. 92 See UN Doc. S/RES/2165 (2014).

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peacekeeping operations, and the dozen rule of law components inserted into resolutions, attest to the fact that the Netherlands’ seat on the Council in 2018 was worthwhile. For the Netherlands, the desire to become a non-permanent member of the Security Council at regular intervals is consistent with its long-standing commitment to multilateralism and the rule of law in international affairs. Since the establishment of the UN, the Netherlands has taken initiatives to promote the rule of law in a variety of fields, most notably the peaceful settlement of international disputes, the regulation of peace and security, international criminal law, human rights, environmental protection and international development co-operation. The Dutch Constitution requires that: ‘The Government shall promote the development of the international legal order’.93 This enduring feature of Dutch foreign policy has led some to refer to this commitment to rule of law as the ‘Dutchman’s burden’.94 No doubt with a wink to President Trump who in his address to the UN General Assembly in 2018 rejected ‘the ideology of globalism’ and advocated ‘the doctrine of patriotism’ and ‘America First’, Dutch Prime Minister Rutte stated in his speech: ‘There is no conflict between multilateralism and the national interest’, ‘we must embrace multilateralism’ and ‘constructive multilateralism is the only way to make progress’.95 In the meantime, the Netherlands has already applied for a new term on the Security Council in 2033-34.96 Hopefully it will then be for the usual two-year term, whether or not in a reformed Security Council of the then nearly 90-yearold United Nations.

93

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Constitution of the Kingdom of the Netherlands (June 2002), Art. 90. See on this L.F.M. Besselink, ‘The constitutional duty to promote the development of the international legal order: the significance and meaning of article 90 of the Netherlands constitution’, (2003) 34 NYIL 89-138. P. Malcontent and F. Baudet, ‘The Dutchman’s burden? Nederland en de internationale rechtsorde in de twintigste eeuw’ [‘The Dutchman’s burden? The Netherlands and the international legal order in the 20th century’], in B. de Graaff, D. Hellema and B. van der Zwan (eds.), De Nederlandse buitenlandse politiek in de twintigste eeuw [The Dutch Foreign Policy in the Twentieth Century] (2003), 69-104. See for the various speeches in the general debate of the General Assembly in September 2019 the website of the UN: https://gadebate.un.org/en. President Trump spoke on 25 September, Prime Minister Rutte on 27 September. Rijksoverheid, ‘Nederland kandidaat voor VN-Veiligheidsraadszetel in 2033-2034’, 15 February 2019, www.rijksoverheid.nl/ministeries/ministerie-van-buitenlandse-zaken/nieuws/2019/02/15/nederland-kandidaat-voor-vn-veiligheidsraadszetel-in-2033-2034.

Chapter 9

Belgium in the UN Security Council: Responsibility Without Power? Jan Wouters and Nina Pineau 1

Introduction

From January 2019 to December 2020, Belgium will be a non-permanent member (NPM) of the United Nations Security Council (UNSC). After two years of campaigning and a successful vote in the UN General Assembly, the country will again be able to make a difference on the international stage. But will it really? In a Security Council dominated by five permanent members (PM, also P5) with a veto right, it seems pertinent to raise the question whether a smaller member state of the UN like Belgium can have some weight in the decisionmaking process. As Drieskens puts it: The non-permanent members of the UNSC are traditionally seen as second-class members who play a supporting role at best: the leading roles are reserved for their colleagues with a permanent seat.1 In this context, how can Belgium make its two years count? What kind of role can temporarily elected members play in such an international forum? Do they have any power, or is a non-permanent seat just a matter of prestige? Do the permanent members have ‘power without responsibility’ while elected members have ‘responsibility without power’?2 1

E. Drieskens, ‘EU Actorness at the UN Security Council: A Principal-Agent Comparison of the Legal Situation Before and After Lisbon’, (2008) 10(4) European Journal of Law Reform 599, at 618. On the predominant role of the five permanent members in the UNSC, see also J.M. de La Sablière, Le Conseil de sécurité des Nations Unies. Ambitions et limites (2015), 42-43 and 73-91; D.L. Bosco, Five to Rule Them All. The UN Security Council and the Making of the Modern World (2009); K. Mahbubani, ‘The Permanent and Elected Council Members’ in D.M. Malone (ed.), The UN Security Council. From the Cold War to the 21st Century (2004), 253. 2 Drieskens, supra note 1, at 618, quoting K. Mahbubani, ‘The Permanent and Elected Council Members’, supra note 1, at 256-61. On the role of small States in the Security Council, see also the speech by C. Keating, ‘The United Nations Security Council: Options for Small Schrijver and Blokker (eds.), Elected Members of the Security Council: Lame Ducks or Key Players? © 2020 Koninklijke Brill nv. isbn 978-90-04-42537-8. pp. 133-152. | DOI:10.1163/9789004425392_010

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To answer these questions, studying the Belgian case is particularly relevant. With five previous terms, and the current term, Belgium has had the opportunity to develop a certain approach and strategy with regard to its role in the Security Council, while at the same time accepting that it is not in the same league as the P5. In this chapter, we explore what role Belgium has previously played in the UNSC and how it intends to act for the next two years. First, we will examine how the country perceives a non-permanent seat in the Security Council, and how it thinks it can make a difference (section 2). We will then investigate how this approach has been put into practice during Belgium’s previous UNSC stints (section 3). Finally, we will try to assess how the 2019-20 term may be similar or different from the previous ones, taking into account current international and European developments. 2

The Role of a Non-Permanent Member in the UNSC—A Belgian Perspective

With five previous terms in the Security Council3 and a sixth one that has just begun, Belgium has had the opportunity to develop a clear vision of the role it can and wants to play as a NPM. The first thing to bear in mind when assessing the role a country like Belgium can play in such an international forum is that, even though sitting in the UNSC offers international prestige and visibility, NPMs will never have the same power as permanent members, nor should they strive for it. They should rather find other ways to yield influence. As we wrote at the occasion of Belgium’s fifth (2007-08) membership of the Security Council: The mere fact of sitting around that table gives the opportunity to codirect the effort and to decide what action, if any, the international community shall take for addressing the types of crises that end up being disStates’ (Reykjavik, 16 June 2008); B. Thorhallsson, ‘Small States in the UN Security Council: Means of Influence?’, (2012) 7(2) The Hague Journal of Diplomacy 135; M. Albaret and D. Placidi-Frot, ‘Les petits Etats au Conseil de sécurité : des strapontins à l’avant-scène’, (2016) 71 Critique Internationale 19; P. Segers, ‘Let the Sunshine In: Five Small States on a Mission to a More Transparent United Nations Security Council’, in G. Biaggini, O. Diggelman and C. Kaufmann (eds.), Polis und Kosmopolis: Festschrift für Daniel Thürer (2015), 709. 3 See infra, section 3. For a general overview of the role Belgium plays in the UN (Security Council), see for example J. Salmon, ‘La Belgique et l’ONU’, in (2008) 8e Conférence internationale des éditeurs de documents diplomatiques: des états de l’ONU, at 301-3.

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cussed – discreetly or publicly – among the members of the UNSC. Even the latter factor does not mean, however, that a non-permanent member can stringently control the process’s outcome: as a temporary interlocutor to the conversations in this forum, undoubtedly at the pinnacle of diplomacy, it is crucial to be aware of your own importance as compared to that of others around the table, to understand when best to speak on a particular topic, or precisely when it is better not to speak.4 To this should be added that, in recent years, the practice of the ‘penholder system’ among three P5 members (US, UK and France) in the Security Council, in which the former take the lead in drafting a text and then negotiate it with the other two permanent members (China and Russia) while only sharing it with NPMs quite close to the scheduled adoption, leads to challenges for the NPMs. It has been observed that: … a side-effect of the pen-holder system has been a deepening negotiation and consultation gap between the permanent and non-permanent members. After the P3 agree upon a given draft among themselves and then negotiate it with China and Russia, the elected members receive the draft but are often discouraged from making meaningful amendments because this might disturb the sometimes painstakingly negotiated wording agreed to among the P5.5 Still, Belgium seems convinced that NPMs, and in particular small states, can make a difference—as affirmed many times during its campaign for the 201920 seat.6 Being small should not be considered an impediment, but rather an 4

5

6

J. Wouters, B. Demeyere and N. Hachez, ‘The 2007-2008 Membership of the UN Security Council: Maximising Opportunities and Minimising Constraints?’ in J. Wouters, E. Drieskens and S. Biscop (eds.), Belgium in the UN Security Council: Reflections on the 20072008 Membership (2009), 21. See Security Council Report, ‘Penholders and Chairs’, UN Security Council Working Methods, www.securitycouncilreport.org/un-security-council-working-methods/pen-holdersand-chairs.php. It still happens that the Security Council adopts resolutions that stem from an initiative of NPMs, but they are fewer today. An example is the unanimously adopted SC Res. 2165 of 14 July 2014 on humanitarian access in Syria, which had been sponsored by Luxembourg, Australia and Jordan. See for example the official website of the Belgian campaign: ‘We believe that smaller States can also make a difference’, https://betounsc.be/our-candidacy/why-vote-for-belgium. See also D. Reynders, Speech for the Launch of the Campaign (New York, 12 July 2016): ‘we know that smaller States can make the difference when it comes to building bridges and uniting Nations.’

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advantage: also for its 2007-08 membership, ‘the very smallness of Belgium definitely played a role in making its candidature less controversial than others’.7 As ‘the small power with the highest level of experience of diplomacy inside the UNSC’,8 Belgium is therefore convinced it can achieve a lot, in particular through certain mechanisms and areas of expertise. The first way in which NPMs can play a role in the UNSC is by displaying a particular expertise on specific topics. Belgium’s area of expertise is traditionally Central Africa, and more specifically the Great Lakes region and the Democratic Republic of Congo (DRC).9 During its 2007-08 term, the country has, for example, been involved in the diplomatic work regarding the peacekeeping operation deployed in the DRC, and: … despite a general tendency by some countries to evolve towards the reduction of the peacekeeping mission (MONUC), Belgium advocated the maintenance of a strong mission, notably in light of the ongoing rebellion led by Laurent Nkunda in Kivu.10 The Belgian expertise was clearly valued and respected, given the UNSC’s adoption of several resolutions in that sense in 2007 and 2008.11 Secondly, another way of exerting influence within the UNSC is by presiding over subsidiary bodies, in particular Sanctions Committees.12 The permanent members decide which NPMs will chair such committees, based on reliability and authority.13 Thus, it is both a way to show the trust one already enjoys within the Council, and a forum enabling a country to play a greater role. During its 2007-08 term, Belgium chaired three Sanctions Committees: Al Qaeda/ Taliban, Iran, and Ivory Coast. In particular, it was instrumental in the debate 7

M. Liégeois, ‘The Role of Small Powers in the UN Security Council: The Case of Belgium’ in Wouters, Drieskens and Biscop (eds.), supra note 4, 51, at 52. 8 Ibid. 9 For a more detailed overview of Belgium’s expertise regarding the DRC, see X. Zeebroek, ‘Belgian Expertise in “The Congo”: A Paradox’ in Wouters, Drieskens and Biscop (eds.), supra note 4, 93. 10 Ibid., 35. 11 See Res. 1756 (2007), 1794 (2007), 1843 (2008) and 1856 (2008). 12 J. Grauls and J. Verbeke, ‘Serving at the UN Security Council: An Insider’s View’ in Wouters, Drieskens and Biscop (eds.), supra note 4, 18. About the working methods of the UNSC in subsidiary bodies and Sanctions Committees, see the Note by the President of the Security Council, UN Doc. S/2017/507 (2017). 13 J. Verbeke, ‘What is it like to be a Non-Permanent Member of the UN Security Council?’, Security Policy Brief No. 96, Egmont Royal Institute for International Relations (May 2018), at 2.

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that shaped and sought to provide a solution for criticisms regarding sanctions regimes against individuals and legal entities (see also infra).14 A third mechanism through which Belgium can play a role is the rotating presidency of the Security Council, and with it the ‘possibility to seek to put a new item on the agenda for discussion at the level of the UNSC’.15 Such thematic debates are not easy to carry out in the UNSC, as its day-to-day work rather focuses on specific geographical areas. However, Belgium has already managed, during previous UNSC terms, to successfully bring such debates to the table. In June 2007, for instance, the Belgian chair scheduled a debate on natural resources and conflict, which led to a consensus among UNSC members, and the adoption of a Presidential Statement.16 Even if entirely new items should not be added to the agenda, these debates are still an interesting way to bring issues to the table, to exert some influence, and to convince constituencies at home that ‘one has made a difference’. While the aforementioned elements are useful tools in Belgian hands to play a role in the Security Council, it is important to note that they are not sufficient. Indeed, the attitude a country adopts in such a forum matters enormously in terms of its potential influence. As Johan Verbeke, a former Permanent Representative of Belgium to the UN, puts it: … it’s not about glory and prestige, but about hard work and quality. As a NPM you are primarily watched and judged by the PM’s and it is they, together with the UN-membership at large, that will decide about your fate in the [UNSC].17 That fate in the Council is precisely shaped by the attitude and the work an NPM brings to the table. While it does not have the same power as a perma14

Wouters, Demeyere and Hachez, ‘The 2007-2008 Membership’, supra note 4, at 35. See also infra, section 3. About the role a country can play when chairing such a Committee, see the German example: P. Wittig, ‘Making UN Sanctions work: Germany’s Chairmanship of the Al-Qaida/Taliban Sanctions Committee of the UN Security Council’ (2012) 55 German Yearbook of International Law 561. 15 Wouters, Demeyere and Hachez, ‘The 2007-2008 Membership’, supra note 4, at 32. About the role of the President of the UNSC, see also A. Zimmermann, ‘Article 27’, in B. Simma et al (eds.), The Charter of the United Nations. A Commentary, I (2012), 905-6; A. Ollivier, ‘Article 30’, in J.P. Cot, A. Pellet and M. Forteau (eds.), La Charte des Nations Unies. Commentaire article par article, I (2005), 999-1001; Y.Z. Blum, ‘The Presidency of the Security Council and the Duty of Impartiality’, in S. Rosenne, Y. Dinstein and M. Tabory (eds.), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (1989), 51. 16 Ibid., at 32-4. See also infra, section 3. 17 Verbeke, supra note 13, at 3.

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nent member, it can gain authority throughout the two years it spends in the UNSC. In order to do so, it has to follow certain ‘rules of behavior’,18 that will in the end enable it to play a bigger role. Verbeke describes five such rules, which provide a useful framework. The first rule, however obvious it may appear, is to know the files: ‘[UNSC] questions are tough and complex and require quite some study work. In the [UNSC] it is not enough to state your position, you have to argue for it’.19 To have such knowledge of all relevant issues, Belgium counts on its ‘well-established and well-functioning network of diplomatic posts spanning all five continents’.20 The second rule is to know your place and find, as Verbeke suggests, the ‘right balance between not enough and too much’.21 The ability to have clear and well-argued points of view is valued and contributes to the authority an NPM can have. An NPM should always have a position in order to ‘take responsibility’.22 One may note the fine and difficult balance an NPM has to find between having a position on all topics while at the same time knowing when not to speak. Directly related to this rule is the third one: predictability. The clear line one chooses to present positions to the Council should also be consistent over time: ‘[i]f a delegation is unpredictable and inconsistent, it shows that it lacks vision on its membership and it does not deserve other members’ trust’.23 Finally, Verbeke puts emphasis on a pragmatic approach: ‘[t]here is not much room for ideology in the [UNSC]. To be an effective NPM one therefore has to avoid dogmatism […] be hands on, pragmatic and equipped with a good sense of what is politically acceptable and practically feasible’.24 Belgium’s approach with regard to maximizing as much as possible its role in the Security Council seems therefore relatively clear-cut: follow the rules in order to gain authority, and use the tools at hand to exert influence on specific areas. While the country accepts that its power is limited compared to the permanent members, it is nonetheless convinced that it can play a significant role in the UNSC. This has indeed been the case in some instances during its previous terms, as will be set out in the next section. 18 Ibid. 19 Ibid. 20 Grauls and Verbeke, supra note 12, at 11. 21 Verbeke, supra note 13, at 2. See also Wouters, Demeyere and Hachez, ‘The 2007-2008 Membership’, supra note 4, at 21. 22 Grauls and Verbeke, supra note 12, at 11. 23 Ibid. See also Verbeke, supra note 13, at 3. 24 Verbeke, supra note 13, at 3.

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Belgium’s Earlier Contributions to the UNSC (1946-2008)

Since the UN’s creation in 1945 Belgium has held five terms in the Security Council: 1947-48, 1955-56, 1971-72, 1991-92, and 2007-08. Before looking to the future and discussing the 2019-20 seat, it is worthwhile to take a closer look at the role Belgium played during its previous stints in the UNSC. 3.1 Belgium’s UNSC Terms in the 20th Century During the last century, Belgium sat four times in the UNSC, and each of these terms was rich in major international events threatening international peace and security. The first Belgian term took place in 1947-48. With the dawning of the Cold War, the UNSC had to deal with its first major crises: the Corfu Channel incident between Albania and the UK, the Indonesian War of Independence, and the beginning of the conflict between Israel and Palestine. Although Belgium was at this stage still seeking its place in the UN and growing accustomed to the functioning of the Security Council, it was already able to demonstrate some diplomatic skills.25 A more experienced Belgium regained its NPM seat in 1955-56, and again, the UNSC had to deal with a lot of issues. The Suez crisis between Egypt, Israel, the UK and France, resulting in the occupation of the Gaza strip, was one of the major crises of its term.26 However, this marked also the beginning of an increasing isolation of Belgium in the UN, with tense relations peaking in 1960 in light of Belgium’s military intervention in the Congo.27 Belgium re-entered the UNSC 15 years later and occupied a seat in 1971 and 1972. At that time, it had to deal with new actors (in particular African countries), as well as the crisis in the Middle East, and the Indo-Pakistani war.28 After 20 years without participating in the UNSC, Belgium held its last term of the 20th century in 1991-92. By then, the Cold War had ended. The UN faced new challenges and opportunities, and this applied in particular to the Security Council, with the development of a humanitarian agenda and a focus on human rights.29

25 26 27 28 29

For a more detailed overview of the first Belgian term, see P. Van Kemseke, België in de Veiligheidsraad. 1946-2006 (2006), 23-40. On the role Belgium played in the UNSC during that crisis, see Van Kemseke, ibid., at 44-6. About Belgium’s isolation in the UN in these years, see Van Kemseke, ibid., at 52-8. Van Kemseke, ibid., at 59-75. Ibid., 77-91. About the Belgian 1991-92 term, see also Ministry of Foreign Affairs, External Trade and Development Cooperation, ‘Belgium in the UN Security Council: 1991-1992’ (1993).

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These four terms taught Belgium how to be an NPM in the Security Council and prepared it for its first term of the 21st century, in 2007-08, during which the country was able to demonstrate its ability to play a significant role on the international stage. 3.2 Belgium’s Most Recent UNSC Term: 2007-08 In 2006, Belgium was elected for a seat in the Security Council in 2007-08, with 186 votes in the General Assembly. This term put an emphasis on three main principles: the international rule of law; human security; and the institutional and functional consolidation of the UN system.30 3.2.1 International Rule of Law While many themes are related to the international rule of law, Belgium put a particular emphasis on one aspect of it: the fight against impunity.31 A good example of the Belgian role on this issue is the indictment request made by the ICC against President Bashir of Sudan in July 2008.32 The African Union (AU) asked to suspend indictments for one year, and a debate took place in the Security Council. Belgium argued against the AU’s request, and defended, together with the other Western and Latin American members, the position that peace and justice must be an integral part of any political stabilization process.33 As President of the UNSC in August 2008, Belgium made this point forcefully with the Tanzanian Ambassador, who acted in his capacity of Chair of the AU. He would later admit that the Belgian delegation had been able to weigh on the AU position.34 Moreover, the fight against impunity was also emphasized by Belgium during debates about situations such as the Eastern DRC, Georgia, or Lebanon.35 With regard to the international rule of law another aspect of Belgium’s role in the UNSC is relevant, namely the Sanctions Committees. As stated before, Belgium chaired several of these committees during its 2007-08 term. However, these committees have come under a lot of pressure, especially the ones targeting individuals and legal entities. They are perceived as non-transparent, punitive and failing to provide adequate redress possibilities for the individuals or entities targeted by them. Their sanctions gave rise to a number of high30 31 32

Grauls and Verbeke, supra note 12, at 14. That theme was emphasized again for the 2019-20 campaign, see infra, section 4. Followed by a warrant of arrest in March 2009, see ‘Warrant of Arrest for Omar Hassan Ahmad Al Bashir’, ICC-02/05-01/09-1, 4 March 2009. 33 Grauls and Verbeke, supra note 12, at 14. 34 Ibid., 15. 35 Ibid.

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profile cases before the EU courts in Luxembourg, in particular the Kadi caselaw.36 In order to improve the protection of human rights, Belgium actively participated in the discussions leading to Resolution 1822,37 with ‘substantial improvements with regard to periodic reviews of the sanctions lists and the narrative summary of reasons for placing individuals on the lists’.38 Moreover, as chair of the Al Qaida/Taliban Sanctions Committee, Belgium paid particular attention to the question of due process by developing concrete mechanisms designed to implement Resolution 1822.39 Finally, another aspect of Belgium’s contribution to the international rule of law concerns the development and implementation of the concept of Responsibility to Protect (R2P). While the UN Summit of September 2005 had endorsed the concept as a matter of principle,40 much work was still needed with regard to its further operationalization and implementation. In that context, Belgium insisted on preventive action by the UN during the violence in Kenya, following the January 2008 elections.41 However, that action was less successful, as illustrated by the fact that no resolution or Presidential Statement about Kenya was adopted in 2008.42 3.2.2 Human Security The principle of human security is very broad and encompasses a large number of issues. However, some aspects mattered especially for Belgium dur36

See, during Belgium’s 2007-08 term, in particular the judgment of the European Court of Justice of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C-402/05 P and C-415/05 P, EU:C:2008:461. 37 UN Doc. S/RES/1822 (2008). 38 Grauls and Verbeke, supra note 12, at 16. 39 Ibid. See also Wouters, Demeyere and Hachez, ‘The 2007-2008 Membership’, supra note 4, at 35. About the Sanctions Committees and the criticisms they face, see also L. Ginsborg, ‘The United Nations Security Council’s Counter-Terrorism Al-Qaida Sanctions Regime: Resolution 1267 and the 1267 Committee’, in B. Saul (ed.), Research Handbook on International Law and Terrorism (2014), 608; C.A. Feinäugle, ‘The UN Security Council Al-Qaida and Taliban Sanctions Committee: Emerging Principles of International Institutional Law for the Protection of Individuals?’, in A. von Bogdandy (ed.), The Exercise of Public Authority by International Institutions: Advancing International Institutional Law (2010), 101. 40 See in particular paras. 138 and 139 of the 2005 World Summit Outcome Document, UN Doc. A/RES/60/1 (2005). 41 Grauls and Verbeke, supra note 12, at 16. About the Kenyan case, see N. Crossley, ‘A Model Case of R2P Prevention? Mediation in the Aftermath of Kenya’s 2007 Presidential Elections’ (2013) 5(2) Global responsibility to protect 192. 42 See ‘Resolutions adopted in 2008’, www.un.org/en/sc/documents/resolutions/2008.shtml and ‘Statements made by the President of the Security Council in 2008’, www.un.org/en/ sc/documents/statements/2008.shtml.

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ing its 2007-08 UNSC term. First of all, Belgium became closely involved in the Working Group on Children in Armed Conflict43 and has ‘systematically called for the creation of an effective and transparent monitoring and reporting system’.44 This call does not seem to have been picked up, though, since no UNSC resolution or Presidential Statement was adopted about it in 2008.45 The second issue on which Belgium focused is the issue of sexual violence in conflict situations. Belgium’s expertise on the DRC made it ‘a natural interlocutor in this debate’, and its input included ‘substantial human security elements in the renewed MONUC mandate’.46 More generally, Belgium played an important role regarding the peacekeeping operation deployed in the DRC. It defended a strong line of protection of the civilian population, arguing that it was, in any event, illusory to believe that a peacekeeping operation would by itself bring the solution to the conflict it was supposed to appease.47 In the particular case of the DRC, and despite a tendency in the opposite direction, Belgium defended maintaining a strong mission. It succeeded in this, as shown by the adoption of various UNSC resolutions in line with this position.48 Another situation in which Belgium played a role is the Ethiopia / Eritrea case. Belgium acted as a co-ordinator and managed to avoid outbursts of violence. Its neutral approach on the issue and its lack of strategic interest in the region made it a valuable partner to deal with this conflict.49 Belgium itself was instrumental in drafting the resolution at hand: such a role would probably be much more difficult during its 2019-20 term in light of the abovementioned ‘penholder system’. Finally, the most important—or at least the most broadcasted to a large public—crisis during Belgium’s 2007-08 term was the conflict between Russia and Georgia. Given the Russian veto and the UNSC’s general

43

UN Doc. S/RES/1612 (2005). See also M. Vlieks, ‘The Security Council Working Group on Children and Armed Conflict: A Legal Appraisal of its Application and Development of International Legal Standards’, (2015) 9(2) Human rights & International Legal Discourse 242. 44 Grauls and Verbeke, supra note 12, at 16. 45 See United Nations Security Council, www.un.org/sc/suborg/en/subsidiary/wgcaac/resolutions. 46 Grauls and Verbeke, supra note 12, at 16. About the Belgian policy on peacekeeping during this term, see also M. Liégeois and G. Glume, ‘A Small Power under the Blue Helmet: the Evolution of Belgian Peacekeeping Policy’ (2008) 61(3) Studia diplomatica 111. 47 Wouters, Demeyere and Hachez, ‘The 2007-2008 Membership’, supra note 4, at 35. 48 See supra note 11. 49 Wouters, Demeyere and Hachez, ‘The 2007-2008 Membership’, supra note 4, at 36.

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inability to move towards any action over this conflict,50 little was achieved while Belgium was sitting on the Council. An issue directly related to armed conflicts and that Belgium tried to prioritize during its 2007-08 term, is the illegal exploitation of natural resources. Acquiring the presidency of the Security Council for the first time in June 2007, Belgium chose this topic as a core theme during the UNSC debate.51 A consensus was obtained among the members, and a Presidential Statement was adopted on the subject, acknowledging that ‘in specific armed conflict situations, the exploitation, trafficking, and illicit trade of natural resources have played a role in areas where they have contributed to the outbreak, escalation or continuation of armed conflict’.52 Belgium’s expertise about the DRC was an asset for this topic too. Indeed, ‘when the UNSC debated the extension of the MONUC mandate in DRC, Belgium managed to have the question of monitoring and mapping the illegal trade in natural resources in the eastern part of the DRC included in the revised mandate’.53 It is again a good example of how Belgium managed to play a significant role by emphasizing certain topics, while making good use of its expertise. 3.2.3 Consolidation of the UN System Finally, one of Belgium’s objectives was to strengthen coherence between the UNSC’s actions and those of other UN organs and entities. In August 2008, when the country held the Security Council’s presidency for the second time, it organized a thematic debate on the Council’s work methods.54 However, the conflict between Russia and Georgia started at the same time, and therefore this objective was less of a success for the Belgian delegation.

∵

50 Ibid. For a more general overview of the actions of the UNSC during the Russian-Georgian conflict, see R. Laenen, ‘Ill-Equipped to Stop the Bear: The UN Security Council and the Case of the Russian-Georgian August 2008 War’ in Wouters, Drieskens and Biscop (eds.), supra note 4, at 83. 51 Grauls and Verbeke, supra note 12, at 17. 52 UN Doc. S/PRST/2007/22 (2007). See also Wouters, Demeyere and Hachez, ‘The 2007-2008 Membership’, supra note 4, at 33. 53 Grauls and Verbeke, supra note 12, at 17-18. 54 Wouters, Demeyere and Hachez, ‘The 2007-2008 Membership’, supra note 4, at 34. About the reform of the working methods of the Security Council, see also K. Bühler, ‘Article 28’, in Simma et al, supra note 15, at 961-67; A. Ollivier, ‘Article 30’, in Cot, Pellet and Forteau, supra note 15, at 995-99.

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In conclusion, Belgium’s 2007-08 stint in the Security Council can be seen as a rather successful one, taking into account the country’s objectives and the outcome after two years of work. In the words of the two permanent representatives who represented the country in the UNSC during those years: Belgium’s contribution to the UNSC was significant – although not all of its activities were equally visible or apparent to the outside world. This doesn’t mean, however, that they were any less useful or important.55 This is probably also the most important lesson Belgium can take for its 201920 term: effectiveness does not mean visibility. 4

Belgium’s 2019-20 UNSC Membership

4.1 Three Main Themes Belgium announced its candidacy for a 2019-20 seat in the UNSC soon after the end of its last term, in 2009. The campaign, however, was only officially launched in 2016,56 and its official slogan was ‘Fostering Consensus. Acting for Peace’.57 With this catchphrase, it is clear that Belgium wanted to play the same role it previously played in the Security Council: that of a ‘bridge-builder’.58 The campaign was built around three main themes that bear great similarity to what Belgium attempted during its previous UNSC stints, but nevertheless lay new accents: defending human rights and protecting civilians; building sustainable peace; and partnering for sustainable development. The first theme, the defense of human rights and protection of civilians, focuses on several issues. In particular, Belgium intends to place particular emphasis on the rights of women, children, and vulnerable groups, and on the fight against sexual violence in conflict, as it has done during its previous stays in the Security Council. In this respect, Belgium plans to focus on the following recurring thematic issues in the Council: children and armed conflict, women, peace and security (UNSC Resolution 1325), sexual and gender-based violence

55 Grauls and Verbeke, supra note 12, at 18-19. 56 Reynders, supra note 6. 57 See the official website of the campaign, www.betounsc.be. 58 See www.betounsc.be/our-candidacy/what-we-stand-for/fostering-consensus-acting-forpeace. See also P. Lesaffer, ‘Kan ons land écht wegen op de wereldpolitiek?’, Gazet van Antwerpen, 8 June 2018; P. Boeykens, ‘België verovert zitje in VN-Veiligheidsraad’, De Tijd, 9 June 2018.

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and the protection of civilians.59 Finally, Belgium intends to focus on the fight against impunity.60 The latter theme has evolved significantly in international practice since Belgium’s 2007-08 membership: apart from the ICC new ad hoc mechanisms that have been developed, such as the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011,61 and the Special Criminal Court in the Central African Republic.62 For the second theme, building sustainable peace, Belgium will give priority—like UN Secretary General Guterres63—on conflict prevention and mediation, but also on strengthening the efficiency and professionalism of peace operations, as it did previously in the case of the MONUC.64 As a recent mem59

A. De Croo, Declaration on the election of Belgium in the UN Security Council (Brussels, 8 June 2018). 60 See www.betounsc.be/our-candidacy/what-we-stand-for/defending-human-rights-andprotecting-civilians. 61 As created by UNGA Res 71/248 of 21 December 2016, see https://iiim.un.org/. 62 Created by Loi 15/003 du 3 juin 2015 portant création, organisation et fonctionnement de la Cour pénale spéciale. See P. Labuda, ‘The Special Criminal Court in the Central African Republic’, ASIL Insights, 22:2, www.asil.org/insights/volume/22/issue/2/special-criminalcourt-central-african-republic 63 See already his remarks at the UNSC open debate of 10 January 2017: www.un.org/sg/en/ content/sg/speeches/2017-01-10/secretary-generals-remarks-maintenance-internationalpeace-and ; at the high-level General Assembly meeting ‘Building, Sustaining Peace’ of 24-25 April 2018: see www.un.org/pga/72/wp-content/uploads/sites/51/2018/05/Summary-HLM-on-Peacebuilding-and-Sustaining-Peace.pdf; and at the Oslo Forum on 19 June 2018: https://news.un.org/en/story/2018/06/1012462. At the aforementioned high-level General Assembly meeting, the King of the Belgians, Philippe I, made an intervention which has been summarized as follows: ‘King Philippe of Belgium, recalling that his country for centuries had been ‘a land of battlefields’, noted that Europe was built on profound reconciliation and gradual rapprochement. Lasting peace was more than the absence of war, but also the fashioning of a framework that was respectful of human dignity. Lasting peace was also the ultimate purpose of the United Nations Charter, he said, describing the 2030 Agenda as a key instrument for conflict prevention, as well as development. He went on to say that, while peace was forged through action, it needed time to take hold. “Human relationships are not decreed; they are built, or rebuilt, patiently, through trust,” he said. Time was needed to heal wounds caused by humiliation and violence; to demobilize, disarm and reintegrate; to bring perpetrators of serious abuses to trial; and to remember. The failure of the United Nations in recent years to prevent wars or to swiftly end them should not overshadow its successes. Rather, the scale, complexity and duration of many of today’s conflicts must encourage Member States to find other ways that would bring lasting peace closer.’ See https://reliefweb.int/report/world/world-leaders-generalassembly-stress-importance-conflict-prevention-mediation-during. 64 See supra, section 3.

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ber of the organizational committee of the Peacebuilding Commission, Belgium also aims to work for a closer interaction between the UNSC and this committee. Finally, the fight against the proliferation of various types of arms and weapons, and against terrorism, will take center stage in the work of the Belgian term.65 As to counter-terrorism, Belgium stressed its engagement ‘in the promotion of the principle of due process in the applications of Security Council sanctions’.66 Being a member of the Group of Like-Minded States on Targeted Sanctions, Belgium had also been active in UNSC debates on this issue prior to its 2019-20 mandate.67 The third theme, partnering for sustainable development, is directly linked to the Sustainable Development Goals (SDGs) adopted by the UN in 2015.68 In this context, Belgium intends to focus on the elimination of poverty, climate change, migration, but also on the role that data and digital technologies can play in development aid and humanitarian relief.69 4.2 Challenges After almost two years of campaigning, the vote at the UN General Assembly took place on 8 June 2018, to replace five of the ten NPMs of the UNSC. Two seats were renewed for the Western Europe and Others Group (WEOG), to which Belgium belongs, to replace the Netherlands and Sweden.70 There were only two candidate countries (Belgium and Germany) for two seats, as Israel withdrew its candidacy, but the vote rather served as a popularity test. While Belgium had expected at least 190 votes in its favour,71 it received 181, which the Belgian Minister of Foreign Affairs described as ‘very broad support’.72

65 See https://betounsc.be/our-candidacy/what-we-stand-for/building-sustainable-peace. 66 See ibid. 67 See for instance the statement on behalf of the Group of Like-Minded States on Targeted Sanctions by Ambassador Bénédicte Frankinet of 28 May 2014 to the UNSC, https:// newyorkun.diplomatie.belgium.be/sites/default/files/content/statements/2014/statement_280514.pdf; or the proposal of the said Group for a more effective UN sanctions system submitted to the UNSC on 12 November 2015, UN Doc. S/2015/867 (2015). 68 UN Doc. A/RES/70/1 (2015). 69 See https://betounsc.be/our-candidacy/what-we-stand-for/building-sustainable-peace. 70 See www.securitycouncilreport.org/monthly-forecast/2018-06/security_council_elections_ 2018.php. About the voting procedure and the criteria to become a non-permanent member, see R. Geiger, ‘Article 23’, in Simma et al, supra note 15, at 754-56; M. Benchikh, ‘Article 23’, in Cot, Pellet and Forteau, supra note 15, at 867-78. 71 P. De Boeck, ‘La Belgique espère décrocher un maximum de voix’, Le Soir, 8 June 2018. 72 P. De Boeck, ‘Un soutien très large’, Le Soir, 9 June 2018. Authors’ translation.

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Many challenges await Belgian’s diplomats. Here below, we focus on some of the main ones, including the voice given to the EU, Brexit, American disengagement and a number of conflicts. 4.2.1 Giving a Voice to the EU As is known, the EU is strongly committed to the UN. The UN is mentioned at least 15 times in the EU Treaties, and the EU has expressed its commitment to go for ‘multilateral solutions to common problems, in particular in the framework of the United Nations’ in Article 21(1) of the Treaty on European Union (TEU). In an address to the Security Council in June 2016, the EU’s High Representative for Foreign Affairs and Security Policy, Federica Mogherini, concluded by saying: ‘Our European Union will always come back to the United Nations, to the core of the international multilateral system, to the stubborn idea of a cooperative world order.’73 One of Belgium’s first and foremost challenges concerns the issue of how to secure, or strengthen, a voice for the EU at the Security Council. Indeed, Article 34(1) of the TEU stipulates that ‘Member States shall coordinate their action in international organisations and at international conferences. They shall uphold the Union’s positions in such forums.’74 EU member states must therefore strive to define a common position and defend it within international institutions. However, the UNSC constitutes a remarkable exception to this general principle. Article 34(2), 2nd paragraph of the TEU provides: Member States which are also members of the United Nations Security Council will concert and keep the other Member States and the High Representative fully informed. Member States which are members of the Security Council will, in the execution of their functions, defend the positions and the interests of the Union, without prejudice to their responsibilities under the provisions of the United Nations Charter. This means that EU member states, when sitting on the Security Council, do not have an obligation to co-ordinate, just one of concertation between themselves, and one of information sharing with all the other EU member states and the High Representative. The latter takes place once a week in New York.75 73 74 75

Speech by F. Mogherini of 6 June 2016 at the Security Council on the EU-UN cooperation. See https://eeas.europa.eu/headquarters/headquarters-homepage/5041/node/5041_it. 2016 Treaty on European Union (Consolidated version) OJ C 202, Art. 34(1). J. Verbeke, ‘EU Coordination on UN Security Council Matters’, in J. Wouters, F. Hoffmeister and T. Ruys (eds.), The United Nations and the European Union (2006), 49, at 55.

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Moreover, EU member states sitting on the UNSC can deviate from EU positions if this is needed in light of ‘their responsibilities under the provisions of the United Nations Charter’ (see also infra). The aforementioned provision of the TEU is confirmed and even a bit reinforced by Declarations No. 13 and 14 to the Lisbon Treaty. Especially the latter declaration is very explicit, as it stipulates that the innovations of the Lisbon Treaty with regard to the EU’s common foreign and security policy: …will not affect the existing legal basis, responsibilities and powers of each Member State in relation to the formulation and conduct of its foreign policy, its national diplomatic service, relations with third countries and participation in international organisations, including a Member State’s membership of the Security Council of the United Nations. Still, an interesting innovation of the Treaty of Lisbon with regard to the EU in the UNSC is Article 34(2), 3rd paragraph of the TEU: When the Union has defined a position on a subject which is on the United Nations Security Council agenda, those Member States which sit on the Security Council shall request that the High Representative be invited to present the Union’s position. All in all, though, the EU is a rather invisible actor in the UNSC, and one cannot say that there is a great amount of strategic thinking about the EU’s role in the UNSC.76 The EU’s 2016 Global Strategy mentions the UNSC only in one instance: ‘A commitment to global governance must translate in the determination to reform the UN, including the Security Council, and the International Financial Institutions’.77 It is remarkable that the Global Strategy does not speak about strengthening the EU’s voice in the Security Council. However, unlike the UK and France, most EU member states with the status of NPMs seem convinced that ‘[w]hat counts is one voice, not one seat’,78 and therefore tend to emphasize the need for EU co-ordination. An interesting illustration thereof is the joint declaration which the Dutch and Italian Ministers of Foreign Affairs, Bert Koenders and Paolo Gentiloni, adopted on 76

See also J. Wouters, ‘Decision-Making Rules and Processes in International Organisations: The Case of the UN Security Council’, (2016) 1 Security and Global Affairs 13-15. 77 High Representative of the EU for Foreign Affairs and Security Policy, ‘Shared Vision, Common Action: A Stronger Europe. A Global Strategy for the EU’s Foreign and Security Policy’, June 2016, at 39. 78 Verbeke, supra note 75, at 53.

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21 September 2016 on co-operation in the UNSC in 2017-18. According to the press statement of the Dutch Foreign Ministry of the day after, ‘[b]oth during that period and in the run-up to it, they will work as closely as possible with one another and with other European Union member states on the Council.’79 Germany also insisted on the importance of the EU in the Security Council. Towards the end of Germany’s campaign for a 2019-20 term, Chancellor Angela Merkel declared: The CSDP is very important to me, because we – also the Germans – can only really represent our interests if we commonly appear as Europeans. That is why my proposal is that we consider our non-permanent seats … as European seats, that we act together, … that we have a European white book for security policy and challenges, that we also define the challenges together, that we work together in the field of defense, and especially in the field of development policy.80 Belgium too aims to include an EU dimension in its 2019-20 term. After Belgium’s election on 8 June 2018, Deputy Prime Minister Alexander De Croo stated that ‘Belgium will of course be the strongest supporter of coherent EU positions and unity among permanent and non-permanent EU members Security Council’.81 The Minister for Foreign Affairs, Didier Reynders, declared after the UN General Assembly vote: We will clearly have a European approach. I have met with Federica Mogherini recently and we have only talked about this. The European approach, it is first aligning the European diplomacy and the various national diplomacies. How to send the same message with different voices. In the Security Council, we come without national agenda. We intend to have an active role in several files, and if we can do it in coordination with France and the UK, two permanent members of the Security Council, with Germany who arrives at the same time as us, and with Poland who will still be there next year, so much the better. On certain files, there will be a European position, but we will not always ask Hungary if they agree with us… The goal is to have the best coordination between the Eu79 80 81

‘Netherlands and Italy to work in concert on Security Council’ (22 September 2016), www. government.nl/latest/news/2016/09/22/netherlands-and-italy-to-work-in-concert-onsecurity-council. A. Merkel, Rede zur 18. Jahreskonferenz des Rates für Nachhaltige Entwicklung (Berlin, 4 June 2018). Authors’ translation. CSDP is the EU’s Common Security and Defence Policy. De Croo, supra note 59.

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ropean members of the Security Council and the External Action Service, but with a specific touch.82 In light of these remarks, it is interesting to note that there was no mention of the EU on the official website and in the official documents of Belgium’s campaign for the 2019-20 UNSC term. Also the official website for Germany’s campaign did not mention the EU. This reflects a delicate balancing act of EU member states applying for an NPM seat in the Security Council: the UN remains an intergovernmental organization of sovereign nation states,83 and it is not always helpful to refer to the EU while campaigning with the rest of the UN membership. The question arises how far EU co-ordination can really go in the context of the Security Council. The information sharing, for example, is not that simple, and, for NPMs, ‘giving their membership [a European] dimension does not necessarily mean sharing all information with EU partners, even on the contrary’.84 Indeed, EU member states sitting on the Security Council should be aware of their UN obligations. As Ambassador Verbeke puts it: … one cannot … expect the EU Security Council members to lay all their cards open on the table. However much they would like to be EU-loyal, they have loyalties, and perhaps obligations too, towards the other Security Council members that they must respect for the sake of being and continuing to be trusted fellows within that principal organ of the United Nations. 85 Drieskens made a similar remark, emphasizing that EU member states that sit as NPMs on the Security Council have to ‘walk on eggshells’ during their term, ‘carefully balancing their regional and global roles and responsibilities, under the watchful eye of their colleagues who are serving on a permanent basis’.86 82

P. De Boeck, ‘Reynders: “Nous ne demanderons pas toujours l’avis de la Hongrie”’, Le Soir, 9 June 2018. Authors’ translation. 83 At another occasion we have referred to the contrast between the EU and the UN as a ‘westphalian’ organization, see J. Wouters and A. Chané, ‘Brussels Meets Westphalia: The European Union and the United Nations’, in P. Eeckhout and M. Lopez-Escudero (eds.), The European Union’s External Action in Times of Crisis (2016), 299-323. 84 E. Drieskens, ‘Walking on Eggshells: Non-Permanent members Searching for a EU Perspective at the UN Security Council’ in Wouters, Drieskens and Biscop (eds.), supra note 4, at 182. 85 Verbeke, supra note 75, at 55. 86 Drieskens, supra note 84, at 182.

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Despite these challenges, it is submitted that EU member states sitting in the Security Council, especially NPMs, should deepen the European dimension of their term. One common message delivered by several EU member states in the UNSC will always be stronger than dissonant positions from isolated members. This is one of the reasons why Brexit constitutes another challenge which Belgium, together with other EU member states in the UNSC, will have to face during its term. 4.2.2 Brexit In 2019, the UK is set to leave the EU, depriving the latter of a member state with a permanent seat on the Security Council. The EU will have one member state less to defend its positions, and one veto less to affirm them. The UK will also no longer participate in the EU’s common foreign and security policy (CFSP) and common security and defence policy (CSDP), which may weaken the EU’s impact on international and security questions on the agenda of the UNSC. Belgium, as well as France, Germany and Poland, will have to face this situation and try to counter-balance the lack of convergence with the UK. More co-ordination than ever will be needed on the European level in order to defend EU interests with as much unity as possible. This is not always easy, as CFSP and CSDP meeting schedules in Brussels may not necessarily be in tune with UNSC dynamics in New York. 4.2.3 Other Issues If strengthening European co-ordination, especially in the context of Brexit, seems to be one of the major challenges Belgium will have to face during its term, of course other issues will pop up, or continue threatening international peace and security, and thus present challenges to Security Council members. The first such issue that comes to mind is the relationship between the US under the Trump administration and the UN. After the US’ withdrawal from UNESCO and the UN Human Rights Council, it is clear that there is at least a renewed form of distrust towards international institutions from the American side. While the US will not leave the Security Council, it will probably not make the work of the institution easier.87 Belgium will therefore have to fine-tune its diplomatic skills to respond to possible tensions that might arise in that context.

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About the relationship between the US and the UNSC, see for example S.J. Stedman, ‘The United States in the Security Council’, in S. von Einsiedel, D. M. Malone and B. Stagno Ugarte (eds.), The UN Security Council in the twenty-first century (2016), 57.

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Definitely, many other issues will pop up on the agenda of the Security Council. While it is impossible to predict what the future holds in terms of peace, security and conflicts, it is not unreasonable to assume that the Syria crisis will continue to be one of the great challenges for Belgium’s 2019-20 term, along with the fight against terrorism—two files which directly affect Belgian interests. Refugee crises may also take center stage, including issues regarding the Rohingya, Central Africa,88 and the Middle East.89 5

Concluding Remarks

Belgium seems convinced that size should not matter in the Security Council, and that small powers can play a role and exert influence, as long as they accept the fact that they do not have the same prerogatives as the five permanent members.90 Throughout its previous terms in the UNSC, Belgium has developed a strategy that seems rather successful to pursue a certain agenda and valorize its expertise. The question is whether these working methods will be as effective and convincing during the 2019-20 term, and if Belgium will be able to adapt to new challenges, while remaining loyal to its international and European philosophy.

88 89 90

See for example UN Doc. S/RES/2424 (2018). See for example UN Doc. S/RES/2426 (2018). This view is shared by other small states sitting on the UNSC, such as Iceland. See for example Keating, supra note 2: ‘a small state, which is well prepared and well organised for its Council role internally, which has a political commitment to principles and international law, which is active by inclination rather than passive and which is constructive in its initiatives can play an extremely important role in the Council’.

Chapter 10

Representing the European Union at the United Nations: The Security Council Dimension Thomas Mayr-Harting* 1

Introduction

The author has been asked to contribute some reflections on the topic of ‘representing the European Union at the UN Security Council’. However, the EU as such is obviously not ‘represented at the Security Council’, the latter being exclusively composed of member states of the UN. For this very reason, the key provisions of the Treaty on European Union (TEU) dealing with the defence of EU positions and interests at the Security Council, Articles 34(2)[2] and 34(2) [3], have those EU member states which are members of the Security Council as their main addressees.1 Co-operation among these EU member states,2 sharing information on Security Council matters with the rest of the EU membership, as well as the ability and willingness of the EU members on the Security Council to truly represent common EU positions and interests, have been the subject of substantive research.3 * 1 2

3

This article is written in a personal capacity and does not reflect official EU or Austrian positions. 2007 Consolidated version of the Treaty on European Union (TEU) 2008/C 115/13. In recent years, there have normally been three to five EU member states among the 15 Security Council members. Until the UK leaves the EU, the lowest possible presence of EU members on the Security Council will be two, i.e. France and the UK as the two permanent members of the Security Council among EU member states; the theoretical maximum has so far been six (five after Brexit) with up to four additional EU member states on the Council as non-permanent members if elected by the General Assembly within the quotas allotted to each of the three regional groups of the UN which include EU member states (i.e. up to two from the 16 EU members belonging to the Western European and Other Group; up to one from the 11 EU members forming part of the Eastern European Group; and up to one from the Asia-Pacific Group, to which Cyprus belongs as the only EU member state). See inter alia: J. Verbeke, ‘EU Co-ordination on EU Security Council Matters’, in J. Wouters et al. (eds.), The United Nations and the European Union: An Ever Stronger Partnership (2006), 49; C. Hill, ‘The European Powers in the Security Council: Differing Interests, Differing Arenas’, in K.V. Laatikainen and K.E. Smith (eds.), The European Union at the United Nations (2006), 49; M.B. Rasch, The European Union at the United Nations: The Function-

Schrijver and Blokker (eds.), Elected Members of the Security Council: Lame Ducks or Key Players? © 2020 Koninklijke Brill nv. isbn 978-90-04-42537-8. pp. 153-175. | DOI:10.1163/9789004425392_011

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There has been less focus on the specific role that ‘EU actors’, in particular the Delegation of the European Union to the United Nations in New York (hereinafter: ‘EU Delegation’ or ‘Delegation’),4 can play in this context in line with the changes brought about by the Lisbon Treaty.5 Therefore, it is the purpose of this article to concentrate on how the entryinto-force of the Lisbon Treaty and its subsequent implementation have so far impacted on what might be called ‘the Security Council dimension’ of representing the EU at the UN in New York. While the sum total of these activities does still not amount, for the reasons given above, to ‘representing the EU at the Security Council’, this article will argue that the ‘Security Council dimension’ of the work of the EU Delegation has evolved substantively since the entry-into-force of the Lisbon Treaty. Section 2 will analyse the immediate legal implications of the Lisbon Treaty for the position of the EU Delegation in this field. Section 3 will study the evolution of EU information sharing on UN Security Council matters (with a particular focus on the role of the EU Delegation therein). Section 4 will deal with ing and Coherence of EU External Representation in a State-centric Environment (2008), in particular at 76; N. Pirozzi, ‘The EU’s Contribution to the Effectiveness of the UN Security Council: Representation, Coordination and Outreach’, 2010 Documenti IAI 1014; and S. Blavoukos and D. Bourantonis, ‘The EU’s Performance in the United Nations Security Council’, (2011) 33(6) European Integration 731. 4 The Lisbon Treaty is divided into two parts: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The former contains the general provisions governing the European Union. The latter defines the objectives of the EU’s policies; the specific rules governing the EU’s external actions are set out in its Part Five. The Delegation itself is a ‘product’ of the Lisbon Treaty, resulting from the merger of the former Commission Delegation and the Liaison Office of the EU Council Secretariat in December 2009. 5 Pirozzi, supra note 3, at 3, contains some reflections on the ‘wide range of possibilities to make the EU a more credible presence within the UN, and the Security Council’ offered by the implementation of the Lisbon Treaty and reports on first efforts by the EU ‘to grasp – in part – these opportunities’. N. Pirozzi and N. Ronzitti have elaborated further on some procedural options in ‘The European Union and the Reform of the Security Council: Toward a New Regionalism?’, (2011) IAI Working Papers 1112, in particular at 10 and 13. More recent research on this subject is contained in two unpublished studies: J. Waldstein-Wartenberg, The EU Delegation as an informal diplomatic actor in the Challenges and Opportunities for the European Union Diplomacy – United Nations (2013), a master thesis presented at the Department of International Development at the University of Oxford; and R. Storaci, ‘Il Consiglio di Sicurezza – Guida Practica’, (2016) Collana manuali di formazione DGRI - Unità per la Formazione Ministero Affari Esteri, a training manual produced for internal purposes by the Italian Foreign Ministry. The author is indebted to both Mr. Waldstein-Wartenberg and Mr. Storaci (a former Counsellor at the Delegation of the EU to the UN) for having shared these papers with him.

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the presentation of EU positions to the Security Council. Section 5 will discuss to which extent developments since the entry-into-force of the Lisbon Treaty have also strengthened the EU’s possibilities to engage proactively with the EU members on the Security Council on specific issues on the agenda on the Council. Section 6 will draw some general conclusions. 2

Legal Consequences of the Entry-into-Force of the Lisbon Treaty on EU Activities in New York with Regard to Security Council Matters

Legally, the entry-into-force of the Lisbon Treaty has had a twofold impact on Security Council related activities of the EU and its official representatives in New York. Firstly, Article 221(1) of the Treaty on the Functioning of the European Union (TFEU) provides that ‘Union delegations in third countries and at international organisations shall represent the Union.’6 In line with this provision, the newly created EU Delegation in New York has assumed the responsibilities exercised before by the diplomatic mission of the rotating EU presidency, also with regard to Security Council matters. This includes in particular the responsibilities of organizing and chairing all meetings dedicated to Security Council related exchange of information,7 as well as presenting common EU positions to the Security Council.8 Secondly, Article 34(2) of the TEU, which deals with EU co-operation on Security Council matters, has also substantially affected the role of the Delegation. While this article builds on language going back to the Maastricht Treaty of 19929 (reiterated in the Treaties of Amsterdam10 and Nice11), it also takes into account the responsibilities of the newly created position of the High Representative of the Union for Foreign Affairs and Security Policy (‘High Representative’). Whereas the earlier provisions had stipulated that EU members on the Council will ‘concert and keep the other Member States fully informed’, the 6 7 8 9 10 11

2007 Consolidated version of the Treaty of the Functioning of the European Union (TFEU) 2008/C 115/47. See Section 3, infra. See Section 4, infra. 1992 Treaty on European Union, Treaty of Maastricht 1992/C 191/01, Art. J.5(4)[2]. 1997 Treaty of Amsterdam Amending the Treaty on European Union, The Treaties Establishing the European Communities and Related Acts 1997/C 340/01, Art. 19 (ex Article J.9) (2)[2]. 2000 Treaty of Nice, Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts 2001/C 80/01, Art. 19(2)[2].

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Lisbon Treaty contains an obligation to ‘concert and keep the other Member States and the High Representative fully informed’.12 Furthermore, the Lisbon Treaty contains the new stipulation that EU members sitting on the Security Council ‘shall request that the High Representative be invited to present the Union’s position’ when ‘the Union has defined a position on a subject which is on the United Nations Security Council agenda’.13 As any other EU Delegation, the Delegation in New York is ‘placed under the authority of the High Representative of the Union for Foreign Affairs and Security Policy’.14 As part of the structures of the European Union External Action Service (EEAS), the Delegation assists the High Representative in the fulfilment of her mandate.15 Therefore, the Delegation also has a specific responsibility to help ensure (obviously in close co-operation with the EU Members on the Council) that the above-mentioned provisions of the Treaty directly pertaining to the rights and prerogatives of the High Representative are fully respected and implemented.16 3

Information Exchange on Security Council Matters under Lisbon Rules: the Role of the EU Delegation

Information exchange among EU members on Security Council matters predates the Lisbon Treaty. Weekly meetings were institutionalized in 2001.17 In particular, it was already customary in New York ‘before Lisbon’ for one of the EU member states sitting on the Security Council, acting as the ‘briefer of the month’ on a rotational basis, to update the rest of the EU membership on developments in the Council, both in the framework of the weekly EU Heads of Mission meetings as well as in weekly expert meetings (so-called ‘Article 19 12 TEU, supra note 1, Art. 34(2)[2] (emphasis added). 13 Ibid., Art. 34(2)[3]. 14 TFEU, supra note 6, Art. 221(2). 15 See TEU, supra note 1, Art. 27(3). 16 Art. 34(2) of the TEU, ibid., in its present form also differs from earlier texts, in that it provides that ‘Member States which are members of the Security Council will, in the execution of their functions, defend the positions and the interests of the Union, without prejudice to their responsibilities under the provisions of the United Nations Charter’, while the respective provision in the Maastricht Treaty (see supra note 9), retained by the Treaties of Amsterdam and Nice (see supra notes 10 and 11) addressed this call (as well as the accompanying qualifier) only to ‘Member States which are permanent members of the Security Council’ (emphasis added). This change is discussed in greater detail below (Section 5). 17 See Pirozzi, supra note 3, at 3.

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meetings’) and increasingly also after individual non-public Security Council meetings, in particular closed Security Council consultations.18 Having started out as a somewhat formalistic exercise, these exchanges have become much more substantive over time, not least upon the initiative of successive non-permanent Security Council members from the EU (including also Austria in 2009 and 2010) who saw ‘transparency’ vis-à-vis their EU partners as one of the priorities of their Security Council mandate. The Lisbon Treaty has placed the new EU Delegation in New York at the centre of these efforts, with its representatives now also chairing on a continuous basis the EU co-ordination meetings most relevant for information exchange on Security Council matters, i.e. the weekly EU Heads of Mission meeting and the ‘Article 34’ (former ‘Article 19’) expert meeting. This gives the EU actors in the chair (the Head of Delegation for the Heads of Mission meeting and the Head of the Political Section of the Delegation for the Article 34 meeting) the chance to create an atmosphere that encourages broader and more prospective exchanges, as well as contributions by further Security Council members, in particular France and the UK (if not already briefer of the month). The EU Delegation has also helped to ensure ever more systematic debriefs by the briefer of the month after closed Security Council consultations. Storaci has rightly described these debriefing sessions, organized immediately after the respective Security Council meeting, as ‘completely informal and uncodified’ and as the ‘most important practical tool’ in implementing the obligation of EU members sitting on the Security Council to keep their EU partners fully informed.19 No other group in the UN has an information sharing mechanism of comparable frequency and density. In addition, following up on a tradition already established in pre-Lisbon days, the Delegation also organizes regular meetings of the EU Heads of Mission with key (non-EU) interlocutors, such as bi-annual working lunches with the Permanent Representatives of the US, Russia and China, which also tend to focus on Security Council matters. This being said, information sharing by the EU members on the Security Council with the rest of the EU membership is still limited, in particular as regards the early (and in many cases decisive) stages of Security Council decision making processes. Under the established practices of EU information sharing, the briefer of the month will normally only share draft texts of Council ‘products’ (i.e. resolutions, presidential statements, press statements, elements for 18

Descriptions of the ‘pre-Lisbon’ evolution of these exchanges are provided i.e. by Verbeke, supra note 3, at 55; as well as Pirozzi and Ronzitti, supra note 5, at 15. 19 Storaci, supra note 5, at 205.

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the press) for circulation to the entire EU membership in the final phases of Security Council deliberations. For instance, draft Security Council resolutions are usually only circulated to EU members not on the Security Council once they have been ‘put in blue’, i.e. are ready for adoption. This sometimes leads to the paradoxical situation in which the EU Delegation (as well as diplomatic missions of individual EU members not represented on the Council) have earlier access to draft Security Council documents through non-EU diplomatic or even media sources than through the channels established in accordance with Article 34 of the TEU.20 In some instances, the briefer of the month (if not a permanent member of the Security Council) might not even be in a position to share Security Council related information with the broader EU membership, as knowledge about what is happening in the Council is at times also unevenly spread among the Security Council members themselves, again particularly in the early phases of decision making. Work on specific Council ‘products’ is normally started by the ‘penholder’, who is in most cases one of the P3 (France, UK, US), with the division of labour depending on the traditional regional and thematic priorities of each of these three countries.21 Deliberations on the draft are then often initiated in restricted groups, such as the P3 or all five permanent members of the Security Council, the P5. In a number of instances, the permanent members will at first engage with ‘interested’ UN members (sometimes even independently of whether these are on the Council or not),22 before involving the rest of the Security Council membership. In some other cases, draft Security Council resolutions are prepared in detail by dedicated ‘Groups of Friends’.23 Security 20 21

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In particular, this can happen in situations where non-EU actors (such as the Arab Group) are actively lobbying others for support regarding their initiatives on the Council. EU information exchange on Security Council matters and some other developments described later in this article have undoubtedly benefited from the direct involvement of two of the three principal Security Council ‘penholders’. It is yet too early to predict how Brexit will impact on Security Council related work of the EU in New York, as this will also depend on how the EU and the UK will organise their overall co-operation in the field of foreign and security policy. With specific regard to future EU-UK interaction at the UN, the draft ‘Political Declaration setting out the framework for the future relationship between the United Kingdom and the European Union’ so far only states that both sides will ‘seek to cooperate closely in .... international organisations and fora, notably in the United Nations’, without specifically referring to the Security Council dimension (see para. 98 of the draft declaration). This tends to apply for instance to Japan and the Republic of Korea when resolutions on the Democratic People’s Republic of Korea are under consideration. One of these cases is the yearly MINURSO resolution that is prepared by the ‘Group of Friends on Western Sahara’, which is composed of the US, France, the UK, Russia, as well

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Council deliberations among all 15 members will only start once the group in question has come to an agreement, when there is de facto only very limited space for further changes. Against this background, non-permanent members of the Security Council may quite often only have a general idea that ‘something is in the making’, while not (yet) being fully aware of all the details. They will of course try to press the permanent members of the Security Council for further details, but primarily for their own work on the Council (and not necessarily always for sharing this additional information at the given point in time with EU members not sitting on the Council). In these and other comparable situations, Verbeke’s comment that, ‘once an EU Security Council member threads the Security Council, he enters another world with its own rules of procedure, tacit understandings, negotiation culture and political dynamics’, has undoubtedly remained valid to this day.24 This of course complicates Security Council related information exchange in accordance with Article 34(2)[2] of the TEU among EU member states as a whole, but may at the same time be beneficial for ‘concertation’, in line with the same provision, among the EU members sitting on the Security Council.25 For the EU Delegation, the situation described above creates challenges of a specific nature. As explained earlier,26 the Lisbon Treaty has placed a dual obligation upon the EU Delegation in New York, in particular also when it comes to information sharing. On the one hand, the Delegation must act as any conscientious rotating presidency would have done in ‘pre-Lisbon’ days (and probably even more so due to its role as a defender of the common European interest): it must act as an ‘honest broker’ encouraging the EU member states on the Council to fully share information with the rest of the EU membership. On the other hand, the Delegation must also constantly liaise with the EU Security Council members, so as to ensure that the High Representative is (also) fully informed of developments on the Council. This dual obligation is not always easy to handle. In its capacity as the ‘de facto local presidency’, the EU Delegation is meant to make sure that all member states have the same level of information. As the local ‘eyes and ears’ of the High Representative, the Delegation will, at the same time, also need to

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as Spain (also when not on the Security Council). Normally, this specific draft resolution is only discussed by the Security Council in its entirety once it has been agreed within the Group of Friends. See Verbeke, supra note 3, at 54. See Section 5, infra, which will also describe a number of more recent efforts to intensify co-operation among the EU members on the Security Council. See Section 2, supra.

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provide the former with all the information she needs, including information of an operational nature that she may require urgently in the exercise of her duties and that the EU member states on the Security Council may at a given stage only be willing to share with the Delegation for this purpose (but not necessarily with the rest of the EU membership). 4

Presenting EU Positions at the Security Council

As described above,27 the Delegation has replaced the rotating EU presidency as the ‘voice’ of the EU at the Security Council, whenever there is the possibility to present common EU positions. In accordance with the Provisional Rules of Procedure of the Security Council,28 non-members of the Security Council can only participate (and take the floor) upon invitation in specific meetings (which are normally public).29 In this context, Rule 37 foresees inter alia that any member of the UN which is not a member of the Security Council may be invited ‘when the Security Council considers that the interests of that Member are specially affected’. Rule 39 makes it possible for the Security Council to invite ‘persons, whom it considers competent for the purpose, to supply it with information or to give other assistance in examining matters within its competence’. The relatively great flexibility provided by Rule 39 has made the application of the new Lisbon rules on external representation,30 i.e. having a representative of the EU Delegation take the floor instead of the EU member state exercising the rotating presidency, much easier to handle in the case of the Security Council than at the General Assembly.31 While the country exercising the rotating presidency used to be invited, when considered appropriate by the Security Council, under Rule 37 as an ‘affected’ UN member state, the EU representative is now invited under Rule 39 as a person ‘considered competent 27 Ibid. 28 UN Doc. S/96/Rev. 7 (1983). 29 Informal Security Council consultations (‘Consultations of the whole’), where an important part of the deliberations preceding Security Council decisions take place, are closed to non-Council member states and also to other third parties except the UN SecretaryGeneral and designated members of the UN Secretariat (including briefers). 30 Pirozzi and Ronzitti, supra note 5, at 11, had already pointed to the use of Rule 39 as ‘(t)he simplest way, not requiring any formal amendment’. 31 As for the many challenges the EU faced in the latter case, see in particular P.A. Serrano de Haro, ‘Participation of the EU in the Work of the UN: General Assembly Resolution 65/276’, (2012) 4 CLEER Working Papers.

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for the purpose’.32 Contrary to the General Assembly, where it took the EU and EU member states over 17 months to get the rest of the UN membership to agree to a change of the rules allowing for EU representation in line with the Lisbon rules, this change was already made for the Security Council beginning in January 2010,33 and has worked smoothly ever since.34 On average, the EU takes the floor at the Security Council 30 to 35 times a year. EU positions are regularly presented at Security Council debates on, inter alia, the situation in the Middle East; Afghanistan; Bosnia and Herzegovina; and Haiti; but also in thematic debates on Women, Peace and Security (Security Council Resolution 1325); Protection of Civilians in Armed Conflict; Sexual Violence in Conflict; and Children and Armed Conflict.35 As a rule, these statements are prepared by the EU Delegation in close cooperation with the EEAS in Brussels and then agreed with EU member states’ missions in New York, normally by silence procedure.36 As with all other Common Foreign and Security Policy statements, consensus is required for their presentation. So far, the only cases when Security Council statements by the EU Head of Delegation (or the EU representative speaking in his stead) did not undergo prior EU co-ordination were those where he spoke on behalf of the EU High Representative in her capacity as the Coordinator of the Joint Commission established by the Joint Comprehensive Plan of Action (JCPOA) with regard to the Iranian nuclear programme.37 32

Normally the EU Head of Delegation. For very important and high-level Security Council debates also high-ranking EEAS representatives from Brussels. As for the participation of the High Representative, see further in this section. 33 See www.un.org/press/en/2010/sc9834.doc.htm, as well as Serrano de Haro, supra note 31, at 11. 34 There is a formal difference in the sense that the former rotating presidency was invited in its capacity as an UN member state, whereas the EU Head of Delegation is invited in a personal capacity and figures as such on the list of speakers. However, this has been handled flexibly in practical terms. As Storaci, supra note 5, at 208, has pointed out, the EU Head of Delegation, when invited to speak, is seated at the Security Council table behind a ‘European Union’ name plate, and the Security Council has routinely accepted him being replaced by another member of the EU Delegation, if prevented to attend at short notice, both of which is in fact inconsistent with the concept of a personal invitation. 35 For EU Security Council statements since May 2017, see eeas.europa.eu/headquarters/headquarters-homepage/search/site/_en?f%5B0%5D=bundle%3Aeeas_press&f%5B1%5D=im_ field_tags%3A1574. 36 Silence procedure signifies that the text in question is circulated in writing by the Delegation to the Missions of all EU member states and is deemed to be agreed at the end of the period laid down by the Delegation, except where one or more member states object. 37 For the first time on 20 July 2015 (see UN Doc. S/PV.7488 (2015)), more recently on 18 January 2017 (see www.eeas.europa.eu/archives/delegations/eu-un/briefing-behalf-eu-highrepresentativevice-president-united-nations-security-council-non-proliferation-iran-

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Depending on the circumstances, the EU Head of Delegation generally speaks ‘on behalf of the European Union’ or ‘on behalf of the European Union and its Member States’ (when issues under member state competence are also covered).38 In accordance with the general practice established for EU statements, the (presently 14) ‘aligning countries’ can be invited to align themselves with Security Council statements made by the EU,39 once these have been internally agreed. Depending on the circumstances, the EU can thus take the floor at the Security Council on behalf of up to 42 member states of the UN, i.e. more than one fifth of the entire membership. However, as any other non-member of the Council, the EU will normally only be given the floor after all 15 Security Council members have spoken.40 This leads to the situation that the representatives of EU members on the Council (who have earlier agreed internally to the EU statement), will at best begin their own interventions by saying: ‘I align with the statement to be delivered later in this meeting by the European Union’ and then continue to make ‘further remarks’ in their respective ‘national capacity’. It also happens quite regularly that some of the EU member states who are not members of the Security Council will take the floor in open Security Council debates even when there is an EU statement, the argument normally being that the EU member states in question also have a specific national interest in the subject under consideration.41 Nevertheless, open Security Council sessions at which the EU can speak still offer the Union an important (regular) platform for presenting its positions on matters that are of key importance for the UN as well as for the EU itself. This

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jcpoa/) and on 12 December 2018 (see eeas.europa.eu/delegations/un-new-york/55362/ eu-briefing-united-nations-security-council-non-proliferation-iranjcpoa_en). Common Foreign and Security Policy positions once established are of the exclusive competence of the EU, in accordance with Art. 24 of the TEU, but some EU statements, especially those on thematic issues such as ‘Women, Peace and Security’ will often also refer to initiatives of individual EU member states. In such cases, the UK has been particularly forceful in arguing that these statements be pronounced ‘on behalf of the EU and its Member States’. The candidate countries Turkey, the Republic of North Macedonia, Montenegro, Serbia and Albania, the country of the Stabilisation and Association Process and potential candidate Bosnia and Herzegovina, the EFTA countries Iceland, Liechtenstein and Norway, members of the European Economic Area, as well as Ukraine, the Republic of Moldova, Armenia, Azerbaijan and Georgia. The only exception to this rule are situations when the EU representative acts as a ‘briefer’; in these cases, the EU statement precedes those of the Council members; see further in this Section. EU member states campaigning for a non-permanent seat on the Security Council are often particularly interested in gaining additional visibility at the Security Council.

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also gives the EU (which is certainly among the most frequent ‘non-members’ to address the Security Council) additional visibility both with Council members and the UN membership at large. This is even more obvious when the High Representative has the opportunity to address the Security Council in accordance with Article 34(2)[3] of the TEU.42 The first time that the EU member states on the Security Council requested that the High Representative be invited to present the Union’s position to the Council was in May 2010 (just five months after High Representative Catherine Ashton had taken office), upon the initiative of then non-permanent Security Council member Austria. Since then, the High Representative has addressed the Security Council regularly.43 From the outset, Security Council statements of the High Representative have never been the subject of a prior co-ordination procedure comparable to that established for the regular EU statements delivered by the Delegation. It is generally accepted that the High Representative acts within the overall powers conferred to her under Article 27(2) of the TEU, whenever addressing the Security Council. Contrary to the wording of Article 34(2)[3] of the TEU, these presentations have as a general rule, however, not focussed on one specific ‘subject which is on the United Nations Security Council agenda’; they have rather provided the High Representative with a broader opportunity to share with the Security Council a number of core political messages as well as an overview of the key foreign policy priorities of the Union over the months to come, under the overall heading of ‘co-operation between the United Nations and the European Union’. On 14 February 2014, at a meeting presided by Lithuanian Foreign Minister Linas Linkevičius on the occasion of a briefing given by High Representative Ashton, the Security Council approved a Presidential Statement on EU-UN relations.44 This Statement commended, inter alia, the EU’s coordinating role in reaching an agreement on the November 2013 Joint Plan of Action between the E3+3 and Iran; its ‘significant contribution to the economic development and stabilization of the Western Balkans’; its ‘comprehensive approach to the maintenance of international peace and security’ with specific references to the Union’s engagement in Somalia, the Central African Republic and Mali; its 42 43 44

See further in this Section. For example, High Representative Ashton in February 2011, February 2013 and February 2014; High Representative Mogherini in March 2015, May 2015, September 2015, June 2016 and May 2017. See UN Doc. S/PRST/2014/4. This is undoubtedly one of the most comprehensive overall assessments of the EU’s international action made at the UN in recent years.

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contributions to humanitarian aid and the elimination of chemical weapons in Syria; and its activities as a member of the Middle East Quartet.45 In her briefing to the Security Council on 9 May 2017, High Representative Mogherini focused, inter alia, on EU initiatives such as the Brussels Conferences for ‘the Future of Syria and the Region’ and the Central African Republic; the European Trust Fund for Colombia; the EU’s military and civilian operations worldwide, in particular Operation Sophia; as well as developments in the field of European security and defence.46 One of the reasons for the choice of the ‘briefing’ format has undoubtedly been that this allows the High Representative to address the Security Council under different conditions than those regulating the usual presentations by EU representatives to the Security Council. ‘Briefings’ give the High Representative the possibility to address the Council at the beginning of the meeting, normally following an introduction by the Secretary-General of the UN (who usually attends these sessions). The 15 members of the Security Council then react to the presentation by the High Representative, and the relations between the UN and EU are the only topic of the meeting. On one occasion, in September 2015, the High Representative also took the floor, together with other non-members of the Council, in an open Security Council debate of the ‘classical’ type, albeit at a high level: the Ministerial Debate chaired by Russian Foreign Minister Sergey Lavrov on the ‘settlement of conflicts in the Middle East and North Africa and countering the terrorist threat in the region’.47 The High Representative’s presence at the Security Council on 11 May 2015 also differed from the other occasions mentioned above, in that this open meeting, while also included in the Council agenda under the general heading of ‘Cooperation between the United Nations and regional and subregional organizations in maintaining international peace and security’, was in fact called upon the initiative of the EU members on the Security Council by the Security Council presidency of that month, Lithuania. The express purpose was to provide the High Representative with an occasion: to brief the Council on the challenges posed by the humanitarian tragedy in the Mediterranean and trafficking networks, to present EU plans for ‘actions to disrupt the business model of human trafficking networks across the Mediterranean’, to stress 45

See also I. Vrailas, ‘L’Union européenne et les Nations unies, un partenariat en action’, in R. Sciora (ed.), L’ONU dans le nouveau désordre mondial (2015), at 42. 46 See www.eeas.europa.eu/archives/delegations/eu-un/statement-hrvp-mogherini-unitednations-security-council-cooperation-un-eu/. 47 See UN Doc. S/PV.7527 (2015).

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the EU’s wish ‘to work with the UN’ in this regard, and to call for the Security Council’s support ‘to save lives and dismantle criminal organizations that are exploiting peoples’ desperation’.48 The Security Council was also briefed by the Permanent Observer of the African Union to the UN, as well as the Special Representative of the Secretary-General for International Migration, Peter Sutherland. The open briefing in the Council was preceded by a preparatory meeting between the High Representative and the EU members on the Security Council, and succeeded by an ‘informal interactive dialogue’ between her and the 15 Security Council members,49 as well as by a whole set of bilateral meetings with individual members of the Council and a debriefing to EU Heads of Mission. Therefore, High Representative Mogherini’s Security Council briefing of 11 May 2015 and the circumstances surrounding it probably present the example closest to the situation foreseen in Article 34(2)[3] of the TEU, a presentation by the High Representative to the Council on a specific subject of key concern to the EU, upon the initiative of the EU members sitting on the Security Council. At the same time, this was more than simply a matter of ‘presenting’ an EU position; this was a focused effort by the EU to impact on the decision making process of the Council: the subject of the following section. 5

Security Council Decision Making and Concertation among EU Security Council Members: which Role for the EU?

For the EU, the situation described above represents a particularly illustrative example of a case where the Council’s action (or inaction) can have direct implications for the functioning of the Common Foreign and Security Policy of the Union. This is true in particular for all EU military missions operating on the basis of UN Security Council mandates, such as EUFOR Althea (in Bosnia and Herzegovina), the EU’s anti-piracy operation off the coast of Somalia (Operation Atalanta), EUNAVFOR MED (Operation Sophia in the Mediterranean), or the EU Training Missions in Mali and the Central African Republic. Security Council resolutions establishing (or changing) sanctions regimes (which require the 48 49

See UN Doc. S/PV.7439 (2015). This is a special informal meeting format that allows Security Council members to have an off-the-record discussion with non-Council members; something that is not possible in the framework of regular closed Security Council consultations, because these are not open to non-members, as explained supra in note 29. For further details, see L. Sievers and S. Daws, The Procedure of the UN Security Council (2014), at 92.

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adoption of a Decision by the Council of the EU to become applicable within the EU) are another case in kind. A direct link to the Security Council also exists in all matters concerning the Iran nuclear deal, due to the co-ordinating role of the EU High Representative in the E3+3 negotiations with Iran, which led to the agreement in July 2015 on the JCPOA, endorsed by UN Security Council Resolution 2231 (2015). Security Council resolutions on AMISOM, the African Union Mission in Somalia,50 provide another good example of how Security Council decisions can have a direct effect on the EU. As the EU covers the costs for the allowances for AMISOM troops and police, as well as for salaries of local and international civilian staff, any decision by the Security Council prolonging the mission and/ or changing its authorized size has direct budgetary implications for the EU. In such circumstances, the EU needs to rely, first of all, on the support of the EU member states which are members of the Security Council. Article 34(2)[2] of the TEU provides that they ‘will defend the positions and the interests of the Union’, albeit ‘without prejudice to their responsibilities under the provisions of the United Nations Charter’. As already mentioned earlier,51 Article 34(2)[2] of the TEU differs from similar provisions in previous versions of the TEU, beginning with the Maastricht Treaty, in that these only called on the permanent Security Council members among the EU member states to ensure the defence of the EU’s interest, whereas the new provision is addressed to permanent and non-permanent EU Security Council members alike. Verbeke has rightly described the distinction made in earlier versions of the Treaty as an ‘anomaly’.52 There is no good reason why defending the EU interests on the Security Council should be left only to the permanent member(s) from the EU. It is of course true that the proviso that this will be done ‘without prejudice to their responsibilities’ under the UN Charter thus now also applies to all EU members on the Security Council, whether permanent or non-permanent.53 The question as to what extent obligations of an EU Security Council member can conflict with the EU positions and interests (which this member state is meant to defend) has been the subject of some academic discussion. The arguments used to justify a potential conflict of interest have been both formal and of a more practical nature: the fact that Security Council members ‘act 50

First authorized by UNSC Resolution 1744 (2007); last extended by UNSC Resolution 2372 (2017). 51 See supra note 16. 52 See Verbeke, supra note 3, at 51, note 2. 53 This also finds its echo in Declarations 13 and 14, which are annexed to the ‘Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon’, 2008/C 115/01.

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on behalf of the entire UN membership’ in accordance with Article 24(1) of the UN Charter when exercising their co-responsibility for the maintenance of international peace and security; but also their need to take into account for tactical reasons the ‘prevailing dynamics’ in the Security Council.54 The more fundamental point has also been made that the language quoted above was originally ‘included at the behest of Britain and France who wanted to ensure that there was no room for misunderstanding over the freedom of manoeuvre which they intended to continue enjoying in the UNSC’.55 While both France and the UK undoubtedly still consider their permanent membership in the Security Council as an essential expression of their global responsibilities, it is also obvious that they have seen increasing benefits over the last decade to engage EU partners and the EU as a whole in support of the initiatives they wish to pursue at the Security Council, arguing that the relevant respective national policy priorities also represent common European interests. France has been especially active in this field, by strongly promoting Security Council mandated military missions of the EU in French speaking Africa, beginning with Operation Artemis in the Democratic Republic of Congo (DRC) in 2003, and continuing with EUFOR RD Congo in 2006, EUFOR Tchad/ RCA in 2008, EUFOR RCA in 2014, up to EUTM Mali (established in 2013 and still ongoing).56 While these developments have been portrayed by some as being primarily driven by French national interests,57 they have undoubtedly had a substantial impact not only on the development of the EU’s Common Security and Defence Policy (a subject that goes beyond the scope of this article), but more specifically on interaction in New York between France as the Security Council member driving these initiatives on the one hand, and other EU Security Council members as well as the EU Delegation on the other.58 54

See in greater detail Verbeke, supra note 3, at 54. The author of this article personally experienced some of the challenges these conflicting interests can create as chair of the Security Council’s Al-Qaida and Taliban Sanctions Committee in 2009/2010 under UN rules that did not allow him to provide the transparency and detail of information that the EU’s jurisprudence has increasingly required. 55 Hill, supra note 3, at 58. 56 The UK has tended to push in a comparable manner for European/EU engagement in Somalia. 57 See for instance P. Berg’s highly critical analysis ‘EUFOR Tchad/RCA: The EU Serving French Interests’ in The EU as a Strategic Actor in the Realm of Security and Defence? (2009) SWP Research Paper RP 14, at 57. 58 In more general terms, the UN’s Department of Peacekeeping Operations (DPKO), led by five French diplomats in succession as Under-Secretary-General since 1997, has also played a key role in intensifying direct EU-UN cooperation in the field of crisis management.

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Over time, this has led in particular a growing willingness to engage with the EU Delegation and EU members on the Council in the run-up to relevant Security Council decisions. As a French diplomat describing negotiations on relevant draft resolutions told Waldstein-Wartenberg: ‘We [the French Mission] share the substance of the text, sometimes we share it bilaterally, if they [EU member states and delegation] need it, because we think they have a stake in the discussions.’59 Such developments also give a more operational dimension to the stipulation contained in Article 34(2)[2] TEU (and in all earlier similar provisions since Maastricht) that the EU members on the Security Council ‘will concert’. The verb ‘concert’ is only used this one time in the entire TEU, whereas the member states of the EU are otherwise called upon ‘to coordinate their action in international organisations’.60 According to English Oxford Living Dictionaries, the definition of the verb ‘concert’ is ‘to arrange (something) by mutual agreement or coordination’.61 However, the drafters of the Treaty clearly wanted to choose what they saw as a weaker term than ‘co-ordinate’. Therefore, Verbeke’s explanation that this wording refers to the need for ‘an interactive exchange of ideas and opinions’62 (and thus not necessarily to a process aimed at achieving a co-ordinated outcome) is certainly closer to what was intended. It is also to be noted that the EU Security Council members are only called upon to concert among themselves; there is no reference to concertation with the rest of the EU membership, the High Representative or other EU actors.63 It needs to be underlined that focused co-operation among EU members on the Security Council has intensified markedly since 2017.64 Most notably, EU Security Council members have increasingly organised ‘joint press stake-outs’ before or after Security Council meetings to present a common statement on subjects of particular concern to the EU as a whole, such as the situation in 59 Waldstein-Wartenberg, see supra note 5, at 12. 60 See TEU, supra note 1, Art. 34(1)[1]. 61 See en.oxforddictionaries.com/definition/concert. 62 See Verbeke, supra note 3, at 50. 63 In contrast to what is foreseen in the same Article with regard to keeping EU partners fully informed: this is an obligation vis-à-vis ‘the other Member States and the High Representative’. 64 Various factors have probably contributed to this development: having five EU members on the Security Council concurrently since the beginning of 2018; the agreement reached between Italy and the Netherlands to split Security Council membership between themselves during the 2017-18 term, while at the same time agreeing to work together during the entire two-year period; and finally, the clear interest of the UK to demonstrate its value to the rest of the EU as a partner on Security Council matters, in a post Brexit perspective.

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the Middle East,65 Syria,66 Ukraine,67 the JCPOA,68 Kosovo,69 Venezuela70 or ‘Women, Peace and Security’.71 In 2018, these press events in fact not only involved the five EU members on the Security Council during that year (France, the Netherlands, Poland, Sweden and the UK), but also former member Italy and incoming members Belgium and Germany. For this reason, this group has run under the name of ‘EU 8’.72 While representatives of the EU Delegation have so far not taken part in these joint stake-outs, the Delegation has regularly been involved in—and contributed to—the elaboration of the statements presented on these occasions, not least by providing EU Security Council members with established EU language on the subject under consideration. A recurrent dialogue between the EU members on the Security Council and the EU Head of Delegations also takes place in the framework of quarterly working lunches.73

65 On 8 December 2017 regarding the Middle East (see www.youtube.com/ watch?v=wxm3yvJlIo8), on 15 May 2018 regarding Gaza/Jerusalem (see onu.delegfrance.org/Joint-Stake-out-on-Gaza-Jerusalem), and on 20 September 2018 regarding Khan al-Ahmar (see italyun.esteri.it/rappresentanza_onu/en/comunicazione/archivionews/2018/09/stakeout-consiglio-di-sicurezza_0.html). 66 On 17 October 2018 (see italyun.esteri.it/rappresentanza_onu/en/comunicazione/archivio-news/2018/10/stakeout-consiglio-di-sicurezza_1.html). 67 On 30 October (see italyun.esteri.it/rappresentanza_onu/en/comunicazione/archivio-news/2018/10/stakeout-consiglio-di-sicurezza_3.html) and 26 November 2018 (see uk.ambafrance.org/EU-countries-voice-utmost-concern-over-Russia-Ukraine-incident). 68 On 12 December 2018 (see new-york-un.diplo.de/un-de/e8-stmnt-iran/2169878). 69 On 17 December 2018 (see webtv.un.org/watch/eu8-on-the-situation-in-kosovo-securitycouncil-media-stakeout-17-december-2018/5980621708001/?lan=original). 70 On 26 January 2019 (see webtv.un.org/meetings-events/treaty-bodies/watch/sir-alanduncan-united-kingdom-on-behalf-of-the-european-union-members-of-the-securitycouncil-past-and-present-on-the-situation-in-venezuela-bolivarian-republic-of-security-council-media-stakeout-26-january-2019/5994741797001/?term=&lan=original). This example is particularly interesting in that the statement read out at the joint stake-out by UK Minister of State Sir Alan Duncan on behalf of the EU Security Council members was in fact identical with the Declaration on behalf of the EU by High Representative Mogherini of the same day (see Press Release 43/19 of 26 January 2019 www.consilium.europa.eu/ en/press/press-releases/2019/01/26/declaration-by-the-high-representative-on-behalf-ofthe-eu-on-the-situation-in-venezuela/pdf). 71 On 25 October 2018 (see italyun.esteri.it/rappresentanza_onu/en/comunicazione/archivio-news/2018/10/stakeout-consiglio-di-sicurezza_2.html). 72 See for instance the reference to the group made by the President of Serbia, Aleksandar Vucic in his statement to the Security Council on 17 December 2018 (see www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_ pv_8427.pdf at 5/20). 73 Information provided to the author by EU interlocutors in New York.

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On 25 September 2018, High Representative Federica Mogherini met with the Foreign Ministers of the ‘EU 8’ in New York, in the margins of the UN General Assembly.74 A second ministerial-level meeting of the EU members on the Security Council and Ms Mogherini took place in Brussels on 28 January 2019, upon the initiative of Belgian Foreign Minister Didier Reynders.75 In her remarks to the press on this occasion, the EU High Representative spoke of the ‘special responsibility—especially in this time of global politics—to coordinate positions to bring into the Security Council our European views on peace and security, but also our strong support … to the UN system, to multilateralism, to conflict prevention, to peace-keeping, to democracy and human rights’.76 Involving the institutional EU actors—in particular the EU Delegation—in co-operation among EU Security Council members on matters of ‘peace and security’ is especially important if the goal is to work towards Security Council ‘products’ of direct concern to the EU as a whole, such as mandates concerning EU military mission. What is required in these cases is an engagement from the earliest stages of the Security Council decision making process. In this context, Waldstein-Wartenberg rightly underlines the importance of ‘informal diplomacy’ and the need to work with the Security Council member ‘holding the pen’ already at expert level,77 as this is where the first draft originates. Over the past years, the author has witnessed a growing number of cases where this has allowed the EU Delegation and its staff to contribute informally to drafting processes,78 mostly via the penholder, but sometimes also by participating in informal ad hoc drafting sessions with other experts (primarily from EU Security Council member states). This has become a more or less sys-

74 See ec.europa.eu/avservices/photo/photoDetails.cfm?ref=P-038230/00-41&sitelang=en#0. 75 In this case it was only the five EU members effectively on the Council at that point in time who participated (see ec.europa.eu/avservices/photo/photoDetails. cfm?sitelang=en&ref=039281#0). 76 Remarks of HR/VP Federica Mogherini at the meeting of European Union Members of the United Nations Security Council (28 January 2019), see eeas.europa.eu/headquarters/ headquarters-homepage/57280/remarks-hrvp-federica-mogherini-meeting-europeanunion-members-united-nations-security-council_bs. (It is worth noting the use of the verb ‘co-ordinate’ by Ms Mogherini, instead of the weaker term ‘concert’ foreseen in Article 34(2)[2] TEU). 77 Waldstein-Wartenberg, supra note 5, at 12. 78 Within the EU Delegation, Security Council affairs are primarily followed by its Political Affairs and Security Council Section, which included seven staff members of diplomatic rank at the time of writing (for further details on the composition of the staff of the EU Delegation, see eeas.europa.eu/delegations/un-new-york/33806/about_en).

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tematic practice for Security Council resolutions on Bosnia and Herzegovina or on the aforementioned African missions. As for negotiations of the Security Council as such, including in particular closed ‘consultations of the whole’, the EU must evidently still continue to rely on the defence of its interests by the EU member states on the Council, as it has no access of its own. The possibility of including an EU staff member in the Security Council delegation of one of the EU members sitting on the Council was discussed at various occasions in the past, but the Security Council has in general only accepted the accreditation of persons who have the nationality of the Security Council member in question,79 and attempts to include EU officials in Italy’s Security Council delegation in 2007 and that of Portugal in 2011 were unsuccessful.80 While it might be worthwhile to make another attempt in this direction in view of the changing atmospherics within the EU over recent years, a single expert in a Security Council team of 20 or more can in any case only deliver limited results. The EU Delegation in New York has so far rather preferred to systematically intensify and broaden its contacts with the teams of all EU member states on the Council (as well as those of other Council members), permanent as well as non-permanent. As an EU interlocutor explained to Waldstein-Wartenberg: We have 8-9 diplomats constantly following the Security Council, who have by now… built up close relations with partners in the Council. As a result, we have quite a good idea of what is evolving in the Security Council, especially if it is a… subject where the EU is directly or indirectly involved….81 This has also been the experience of the author. In a place where ‘permanence’ plays such an important role as is the case at the UN, the EU Delegation’s role as the EU’s ‘de facto permanent local presidency’ has also made it a permanent interlocutor for Security Council matters of direct concern to the Union more than had been the case with changing rotating presidencies. The EU thereby also increasingly profits from the advantages of a continuously improving ‘in79

Sievers and Daws, supra note 49, at 199, mention exceptions to this practice in 2004 and 2006, but Austria was again prevented from accrediting to the Security Council in 2010 an Irish diplomat seconded to its UN Mission in New York. 80 See Pirozzi and Ronzitti, supra note 5, at 15. However, an EEAS official has been seconded more recently to the Dutch Foreign Ministry in The Hague in view of the Security Council membership of the Netherlands in 2018. 81 Waldstein-Wartenberg, supra note 5, at 14.

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stitutional memory’. It is worth noting that the flow of information is not a oneway-street: thanks to its 139 delegations worldwide and strong backup from EEAS headquarters, the EU has over the recent years increasingly supported EU Security Council members with a less wide diplomatic network with background information on situations on the agenda of the Security Council, in particular but not only in sub-Saharan Africa.82 Formal consultations on Security Council matters bringing together the UN Directors of the Foreign Ministries of the EU Security Council member states, and the Chair of the Political and Security Committee (PSC), take place on a bi-annual basis. The Permanent Representatives of the EU members on the Council and the EU Head of Delegation also have dedicated meetings to discuss matters on the Council agenda, so far generally on a quarterly basis. Recurrent meetings between the members of the UN Security Council and of the EU’s PSC represent a further development that allows for direct exchanges between New York and Brussels on Security Council matters. Contrary to the practice established between the UN and the African Union, these are informal encounters, not part of the official work programme of the Security Council. They normally take place as part of the yearly visits of the PSC to the UN Headquarters in New York, in the diplomatic premises of the country exercising the Security Council presidency or at the EU Delegation. The first meeting of this kind was hosted at the Russian Mission to the UN in 2013, and since then there have been four similar meetings in New York in the ensuing years, with a particular emphasis on EU-UN cooperation in the field of peacekeeping.83 One meeting of this kind took place in Brussels, in October 2013 during a stopover of the Security Council on its way to Rwanda and the DRC. This allowed for a focused exchange of views on the situation in the Great Lakes Region. Discussions between the Security Council and the PSC on 20 May 2015 were particularly topical, as they provided the PSC with an opportunity to present in further detail to Security Council members the EU’s plans for a naval operation in the Mediterranean, just nine days after the briefing by High Representative Mogherini on the same subject. This is another reason why it is right to describe Operation Sophia as a case where the EU ‘secured international support by lobbying the Security Council

82 83

As also explained by Storaci, supra note 5, at 207. See for instance Security Council Report, ‘Informal meeting between members of the UN security council and the EU political and security commit’, What’s in Blue, 26 May 2016.

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to adopt Resolution 2240 that permits states to inspect and seize vessels suspected of engaging in human smuggling’.84 The term ‘lobbying’ is well chosen. This was a truly concerted effort involving all the elements referred to earlier: preparatory co-ordination with EU Security Council members; a briefing by the High Representative to the Security Council; an informal interactive dialogue with the Security Council members; numerous bilaterals; interaction with the EU Heads of Mission in New York; as well as the dialogue between the members of the Security Council and the PSC just mentioned, all of this accompanied by constant close co-operation between the EU and the UK (as Security Council penholder for Libya) as well as the other EU members on the Council in the drafting of the resolution itself. Perhaps even more significantly, this experience was also different from the African peace missions referred to earlier, in that these missions were originally initiated and promoted by France (and the UK in the case of Somalia) and then ‘adopted’ by the EU, whereas Operation Sophia is an initiative that originated in the EU85 and that the Security Council was then persuaded to support. Even if the Security Council has not given the mission the complete mandate the EU had originally hoped for (as the Council has not authorized EUNAVFOR Mediterranean to capture and dispose of smuggling and trafficking vessels and assets in Libyan territorial waters86), this was not due to lack of support by EU partners in the Security Council.87 All in all, the process that led to the adoption of Security Council Resolution 2240 (2015) can still be considered as the most striking example to date for the proactive defence (and promotion) of EU interests at the UN Security Council through co-ordinated 84 85

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G. Oberleitner and S. Salomon, ‘What Security? Introductory Remarks on People on the Move and the Reclaiming of Security’, in S. Salomon et al. (eds.), Blurring Boundaries: Human Security and Forced Migration (2017), 4. See in particular the ‘Ten point action plan on migration’ approved at the Joint Foreign and Home Affairs Council of 20 April 2015 (europa.eu/rapid/press-release_IP-15-4813_ en.htm) and the conclusions of the special meeting of the European Council on 23 April 2015 (www.consilium.europa.eu/en/press/press-releases/2015/04/23/special-euco-statement/). In its third phase, Operation Sophia was also meant to take all necessary measures against suspect vessels, including through disposing of them or rendering them inoperable, in the territory of the coastal state, subject to the consent of the state concerned or any applicable UNSC resolution; see Council Decision (CFSP) 2015/778 of 18 May 2015 on a European Union military operation in the Southern Central Mediterranean. The main reservations were voiced by the Libyan authorities, Russia and China; see J. van der Lijn, ‘For the long run – A mapping of migration-related activities in the wider Sahel region’, Clingendael Report (2017), at 8. See www.clingendael.org/sites/default/files/pdfs/ Report_For%20the%20long%20run.pdf.

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action by EU Security Council members and the EU’s institutional representatives, in line with the letter and spirit of the Lisbon Treaty. 6

Conclusions

While the Lisbon Treaty has not changed (and could not change) the basic fact that direct ‘representation of the EU at the UN Security Council’ remains impossible as the Security Council is exclusively composed of member states of the UN, the Treaty as well as New York practice over recent years have allowed for substantially increased EU interaction on Security Council matters. In particular, the role of the EU Delegation as the ‘de facto permanent local presidency’ of the EU in New York has helped to make information exchange between the EU members on the Council and the rest of the EU membership ever more systematic and continuous through the work of the EU Delegation, in particular through the regular briefings provided by the EU High Representative, the EU as such has also gained greater visibility in public activities of the Security Council. At the same time, and even more importantly, while the internal dynamics within the Security Council have not changed fundamentally, with the P5 retaining and perhaps even enhancing their dominant role, co-operation between EU actors and the Security Council on issues on the agenda of the Security Council of direct interest to the EU has substantially intensified, thereby providing the EU with increasing possibilities to impact on the elaboration of specific Security Council products. This development has been facilitated by three factors: firstly, the growing desire of EU member states on the Security Council, in particular France, to gain the support of EU partners and the EU as such for Security Council related initiatives of key importance to the Security Council member in question (such as crisis management operations in Africa); secondly, an increasing engagement of the EU High Representative and other Brussels based EU actors, in particular the PSC, with the Security Council; and, thirdly, intensifying interaction in New York between EU Security Council members, permanent and non-permanent alike, among themselves as well as with the EU Delegation (having at its disposal capacities going well beyond those of the EU’s institutional presence at the UN in pre-Lisbon days). Under these conditions, the EU has also been able to successfully promote and bring to fruition what may perhaps be described as the first ‘Brussels driven’ initiative at the Security Council: Resolution 2240 (2015). In terms of EU action at the Security Council, this was undoubtedly a diplomatic success, even if the mission authorised by this resolution, ‘Operation Sophia’, has in the mean-

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time become the subject of substantial political controversies within the EU for reasons that are not linked to the New York based dynamics described here. It remains to be seen whether this was an exceptional achievement owed to the particular pressures of the European migrant crisis or whether this marks the beginning of a new culture of EU co-operation on Security Council matters. In a similar vein, it will be interesting to observe whether recent efforts to intensify co-operation among EU Security Council members in concert with the EU Delegation (as witnessed by new practices such as ‘joint stake-outs’ before or after Security Council meetings) are the result of a lucky concurrence of circumstances (such as the simultaneous presence on the Security Council of a number of EU members particularly open to this kind of interaction) or whether this also represents the starting point of a longer term trend.

Chapter 11

Serving on the Security Council: More Like Playing Poker than Like Chess Peter Wilson* Question: are the elected members on the Security Council ‘lame ducks’? I do not think so. The key division in the Council is not the division between the P5 and the E10. It is the division between the activists and the blockers, those  members of the Security Council who want to see it doing stuff, and those who want above all to prevent risks to their own interests.   The activists are likeminded members of the Security Council who want it to be used for what it was set up for: preserving and building security in the world. They tend to be prepared for some level of intervention, and see human rights as integral to the purpose of the Council. For them, human rights function as a warning light: in cases where they are violated the Council should pay closer attention, as they may in future need to act to preserve peace and security. The P5—at the moment—meets less often than the E10 do. I know that is sometimes surprising, and it has not always been the case—there are swings in the pendulum—but, in my experience, in the last years this has been the case. That’s neither a bad thing nor a good thing in itself, merely an observation. Within the P5, what divides us is more important than what unites us. Often, the P3 (the UK, France and the US) are able to get themselves into a position where there is unity, and when that happens we are quite prepared to challenge the Russians or the Chinese. So far, this US administration is cost conscious but unideological on the UN: it does want to use the Council when it can. So what is important for members coming on to the Council? Firstly, it is absolutely possible to achieve things during one’s term. Elected members have *

This article is based on an interview with Ambassador Peter Wilson about his experiences as Deputy Permanent Representative of the Mission of the UK to the UN in New York (2013-17), which took place during the research seminar mentioned in the foreword of this book (May 2017).

Schrijver and Blokker (eds.), Elected Members of the Security Council: Lame Ducks or Key Players? © 2020 Koninklijke Brill nv. isbn 978-90-04-42537-8. pp. 176-179. | DOI:10.1163/9789004425392_012

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shown repeatedly that they can, and that they do, make a difference. Secondly, the members of the Council who make the biggest difference are the individuals and the countries who stand for things rather than seek to act as a bridge. Ultimately, the Security Council is about votes or the risk of votes, so it is very important to be clear where you stand. Luxembourg’s stance on children in armed conflict was clear, and they were able to make a difference over a period of two years. Australia was clear about its commitment to human rights:  ‘the canary in the coalmine’, as they described it, and key in their vision of preventative diplomacy. Australia’s activism on those issues and on humanitarian issues was significant. Later, New Zealand’s Permanent Representative illustrated how, if you look at key issues from first principles, if you listen to others, and if you then give your own assessment in the Council without just reading out your brief, you stand a good chance of swaying the Council.  Finally, I think that the members of the Council who are most effective are those that recognize that ultimately, whatever the constituency that voted for you, whatever the regional grouping of which you’re a part, at the end of the day you negotiate as your country, you speak as your country, you represent your country. I think that sometimes members of the Arab Group found that tricky, because they were part of a close-knit group, but at the end of the day, if you want to be part of a negotiation, you have to be able to move. If you are trying to move as a group, that is much harder, and much more likely to lead to a lowest common denominator. States voted for you for a reason: for what you stand for. In my view, the fact that the Netherlands will be on the Council is good news for the rest of us on the Council, including the UK of course, because of the values the Netherlands represents.   Question: who has the right to decide who the penholder is? That is one of the things that people present as an accretion of tradition. The truth is that people tend to hold the pen for a long time, and simply keep on holding it. When you do hold the pen, if your country has a very strong national position or if it is a sensitive subject, it can feel difficult. When the penholder is tongue-tied, another member of the Council may produce the product. Any member of the Council is free to do so—penholdership is simply tradition. In other words, if you want to just take the pen, and drive something through the Council, there is nothing to stop you doing that. The only thing you would have to deal with is the annoyance of the other members, and the risk to your own reputation if you don’t succeed in carrying the Council.

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Question: when there is a lot of tension between the P5, and they do not meet very often, does that suggest more room for the E10— or is this a too simple view, and do you need a well-functioning P5 in order for the E10 to function well? When the P5 are not meeting, and when there is huge tension, one thing that many members of the Council feel that they can do is step in. However, the truth is that being a member of the Council is more like poker than like chess—at the end of the day, sometimes if you want to make a proposition, you just have to play your cards. There are two possible types of intervention when the P5 are fighting: one is to simply put a product on the table and challenge the P5, the other is to try to broker. The first function is a more useful function than the second; when you try to broker, the people you end up putting most pressure on are those who already care about international public opinion. Russia does not feel much pressure when the E10 try to broker a solution, but the P3 do. That is where you have to be very careful to be clear where your real interests and alliances lie, and what you are actually trying to achieve. A lowest common denominator product can be worse than no product. Nonetheless, at the same time we all recognize that we need to negotiate. We all try to preserve decent personal relationships on the Council. To state the obvious, that means doing business with interlocutors who genuinely do not see things the same way you do. Under those circumstances, you have to be prepared to challenge, as well as understand the difference. Being nice does not always work, and always being nice never works. Question: how does the P5 feel about thematic discussions put forward by non-permanent members? Is there a wiser use of thematic debates? I personally favor thematic debates, because one of the functions of the Security Council is a normative one. When you do a thematic debate well, it can shift the normative framework in which we operate, not necessarily significantly, but certainly by a degree. It can also provide a useful benchmark of where the Council is on a certain issue. The thematic debates that work best, in my opinion, are the ones where we seek to apply principles to practical cases. We had in the past tended to speak in highly theoretical terms. We now talk in practical terms in these debates and seek to apply principles to one or two particularly egregious issues and

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seek to move the norm in that way. We have also tried to move the Council to integrate its agenda with development and human rights, and we pushed that hard against strong Russian and Chinese opposition. I think it is right to do that, because the Security Council does not operate in a vacuum. However, I have heard that many in the G77 feel threatened by it, and feel that the Security Council wants to take over the whole of the agenda of the UN. For the Netherlands, as a country with a strong record on development and human rights, linking those goals to what we do in the Council seems to make sense. There is one other important issue, which is voluntary restraint of the veto. In my experience, and opinion, it is the existence of the veto, not the lack of it, which poses the greatest threat to the action in the Council. Others having the veto is a bigger disadvantage than us having the veto is an advantage. Question: where is the Council moving when it comes to prevention? Where would you see the Council in five years on this issue? Five years from now, I think we will have moved a little on prevention, but it is a much more difficult battle than I thought it would be. I thought talking about prevention was talking about motherhood and apple pie—everybody is in favor of prevention. That is unfortunately not true and it is a very tricky debate on the Council. It is good that during the last few years the UN’s Under Secretary General for Political Affairs came to us with issues that were not on the Council agenda, but which were beginning to worry the UN system. The only way he could do that was in an informal format. It matters that Council members engage with this at a senior level, rather than just sending people to take notes.  The Secretary General also has scope to use his own initiative. António Guterres has made it clear that he is willing to do that on prevention, and I think that he is going to be increasingly prepared to challenge the Council on issues that we should deal with at an early phase. I think that will increasingly become the norm on the Council. It is certainly something that we should all welcome.

Part III Niches for Elected Members

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Chapter 12

What Kind of Rule of Law Should Elected Members Promote? Alejandro Rodiles* 1

By Way of Introduction: E10 and the Thin Version

Elected members (E10) of the UN Security Council are no ‘lame ducks’ when it comes to the rule of law. The opposite is the case: E10 states have played the leading role concerning the promotion of the international rule of law inside this organ.1 The main reason for this leadership role is rather simple and pragmatic: there is a self-interest by the many in promoting transparency and fairness from within for an organ that is to a great extent politically and legally captured by a few. The above mentioned already entails a certain notion, or more accurately, a conception of the rule of law. In other words, E10 states have often favoured and worked for a specific kind of the rule of law. I am referring to a conception that is intrinsically linked to the containment of power. Thus, it might come as ‘law-fare’ for some, or as the struggle for a more equal international community for others; in the end, it reflects the most basic, indeed essential understanding of the rule of law on which different legal cultures and traditions can agree upon. This is often characterized as the ‘thin version’ of the rule of law, precisely because it concentrates on the essential, i.e. the control of political power through formal legal means, in particular those associated with process. That it is rather the thin version which is more actively promoted by nonpermanent members of the Security Council, can be observed in several activities and initiatives facilitated by them in and outside the Council. For instance, Security Council rule of law open thematic debates, which have taken place *

1

My gratitude goes to the participants of the conference The Role of Non-Permanent Members on the Security Council in Pursuit of Peace and Justice: Key players or lame ducks?, held in The Hague and Leiden, in May 2017, where first thoughts on this contribution were discussed. Special thanks are due to Niels Blokker and Nico Schrijver. The usual disclaimer applies. I have made this argument elsewhere, see A. Rodiles, ‘Non-Permanent Members of the United Nations Security Council and the Promotion of the International Rule of Law’, (2013) 5 Goettingen Journal of International Law 334.

Schrijver and Blokker (eds.), Elected Members of the Security Council: Lame Ducks or Key Players? © 2020 Koninklijke Brill nv. isbn 978-90-04-42537-8. pp. 183-196. | DOI:10.1163/9789004425392_013

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since 2006 under rotating presidencies of E10,2 have focused on the respect and strengthening of international law, including by the UN and the Security Council in particular, whenever the latter engage in the maintenance or restoration of international peace and security. Non-permanent members have also sponsored and co-ordinated initiatives with the broader UN membership and beyond, like the Austrian initiative on the Security Council and the Rule of Law, from which the informal group of states called the Friends of the Rule of Law emerged. Through this initiative, UN member states, together with academia and NGOs, embarked on a long and fruitful consultation process that concluded with the adoption of the Final Report and Recommendations, finalized by Professor Simon Chesterman, and published as a UN document in 2008.3 This document spurred much of the advancements in regard to transparency and self-restraint inside the Security Council in the years to come after its adoption. Moreover, and as I have argued elsewhere, the focus on the thin version of the rule of law by the E10 is also visible in regard to the work of the latter in front of certain subsidiary bodies of the Security Council, like the Informal Working Group on Documentation and Other Procedural Questions, where the leadership of Japan has been remarkable. Japan and also Argentina for instance, have contributed to more transparency, predictability, and thus certainty in regard to the working methods and decision-making processes of the Security Council, something which is of great utility for incoming members, and helps reducing, at least to some degree, inequalities among the fifteen members.4 The ‘thin version’ is analytically tied to the conception of international law as a legal system, i.e. as the legal order of the international community.5 Even if taken as an aspiration—which it is—this conception is the most powerful imagery for classical international law, i.e. for the post-war inter-state legal sys2

These have been Denmark (2006), Mexico (2010), Guatemala (2012), South Africa (2012), and Lithuania (2014). There was also a closed briefing on the rule of law organized by Pakistan in 2013, and therefore no records are available. Moreover, the very decision to opt for a closed meeting is not in line with the promotion of the Council’s transparency, which has become one of the main purposes of open thematic debates on the issue. 3 See Austrian Federal Ministry for European and International Affairs & Institute for International Law and Justice, New York University School of Law, The UN Security Council and the Rule of Law: The Role of the Security Council in Strengthening a Rules- Based International System, UN Doc. A/63/69-S/2008/270 (2008). On this initiative, see K.G. Bühler, ‘The Austrian Rule of Law Initiative 2004-2008 – The Panel Series, the Advisory Group and the Final Report on the UN Security Council and the Rule of Law’, in A. von Bogdandy and R. Wolfrum (eds.), Max Planck Yearbook of United Nations Law, (2008) 12, at 409. 4 Rodiles, supra note 1, at 362-6. 5 On this see E. Benvenisti, ‘The Conception of International Law as a Legal System’, (2007) German Yearbook of International Law 393.

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tem with the UN at its core. Hence, in promoting the thin version of the rule of law, E10 states are actually strengthening the Security Council as an institution of a system to which all UN member states belong. But this does not entail any paradox, nor does it necessarily reflect naivety on behalf of the E10. There are good reasons for non-permanent Security Council UN member states, including the weakest among them, to defend the system of which the Council is a main piece, all its shortfalls and built-in inequalities notwithstanding. Probably, the most important of these reasons is that the post-war legal order is regarded by the majority of state representatives as an ongoing common construction, under which some of the initial built-in inequalities have been corrected over time through decolonization, and, more broadly, through the appropriation of the system by those participating in it on a day-to-day basis.6 The vehement defence of the rule of law at the international level by the G77, the Non-Aligned Movement, and other alliances of what used to be called the ‘Third World’,7 speaks in favour of this feeling of belonging and ownership. This defence is, above all, about the vindication of the central role of the UN and of positive international law in international relations. 2

The (Institutional) Thinness of the Thick Version

It must be said that the P5 are very active in rule of law promotion as well. The protection of women in armed conflict has been decidedly and consistently promoted by the US, at least since the second Bush Jr. administration. The Obama administration continued with this practice, and Hillary R. Clinton became, as Condoleezza Rice was, the personal driving force behind this rule of law initiative.8 And what to say about the key role of the UK in several of the cross-cutting issues that are concerned with restoring or building the rule of law in conflict and post-conflict societies, as most clearly evidenced in the first two thematic debates on the rule of law that took place in the Security Council in September 2003 and October 2004. Both were convened, organized, 6 7 8

On this, see Rodiles, supra note 1, at 373. See S. Pahuja, Decolonising International Law – Development, Economic Growth and the Politics of Universality (2011) at 172-185; and Rodiles, supra note 1, at 344. Resolution 1820 was adopted on 19 June 2008 at the level of foreign ministers; former US Secretary of State, Condoleezza Rice, chaired the meeting in her capacity as the Council’s President at the time, see UN Doc. S/RES/1820 (2008), and UN Doc. SC/9364 (2008). On 30 September 2009, during the US Presidency of the Council, Hillary R. Clinton chaired a meeting on the same subject-matter, which led to the adoption of SC Resolution 1888; see UN Doc. S/RES/1888 (2009) and UN Doc. S/PV.6195 (2009).

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and chaired by the UK, and both dealt with rule of law promotion in conflict and post-conflict situations, the focus being in the first case on UN peacekeeping and peacebuilding operations, and in the second on transitional justice mechanisms.9 Another case comes to mind, which might surprise the reader at first sight, but which is part of the same general type of rule of law promotion activities that tend to be favoured by the P5. Without becoming less intrusive over the years—actually, quite to the contrary—counter-terrorism work has been reframed from ‘the global war on terror’ to ‘the international fight against terrorism’ to ‘the efforts of the international community to counter violent extremism’. An essential component of the latter frame is the kind of ‘rule of law’ that is most clearly promoted among jurisdictions by the Counter-Terrorism Committee (CTC) and its powerful body of experts, the Counter-Terrorism Executive Directorate (CTED). Here, the political drive from the P5 is no longer divided between Western (P3) and non-Western states, as it is the case with several other subjects: rule of law activities within the Council’s counter-terrorism machinery are equally favoured by the US and Russia, the European members and, to a lesser extent, China. One may very well disagree with the framing of Security Council counter-terrorism work as a rule of law issue. In my view, it is more of a spin that intends to put much of rather doubtful activities according to rule of law standards in a positive light: as Stephen Humphreys argues, what is portrayed as rule of law, is actually about the ‘rule of law and order’.10 But what matters in the present context is that rule of law promotion in terms of counter-terrorism efforts, conflict and post-conflict society justice, and—even though to a lesser degree—the protection of women during armed conflict, are part of the enterprise of fostering the rule of law at the national level. It is, therefore, not about the basic idea that law should rule in international relations, but about specific values; not about process but substance; it is thus not the ‘thin’, but the ‘thick version’ of the rule of law indeed. The problem with the exclusive emphasis on this thick version is twofold: first, in ignoring the calls for restrictions and controls on the powers of the Security Council that the thin version envisages, it does not work in favour of the institution’s credibility in promoting thicker contents. And second, in 9

10

See UN Doc. S/PV.4833 (2003), UN Doc. S/PRST/2003/15 (2003); and UN Doc. S/PV.5052 (2004), UN Doc. S/PRST/2004/34 (2004); on these pioneering rule of law debates inside the Security Council, see A. Rodiles, ‘México y la promoción del Estado de derecho en el Consejo de Seguridad’, in R. Dondisch (ed.), México en el Consejo de Seguridad de la ONU: La historia tras bambalinas (2012) at 199-223, and 210-1. See S. Humphreys, Theatre of the Rule of Law—Transnational Legal Intervention in Theory and Practice (2010), at xvii and 162-174.

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strictly prioritizing substance over process, it remains on a very thin ground, obtruding the long-term construction of common and stable agreements of the broader community. 3

The (Institutional) Thickness of the Thin Version

While the P5 tend to favour the thicker version of the rule of law, the E10 are more concerned with the thinner one. This is only logical since the thinner version is more about what has been called the rule of law at the ‘institutional level’,11 precisely because it addresses the conduct of international institutions, not exclusively but very importantly including the Security Council. The idea underlying the institutional dimension was straightforwardly articulated by Kofi Annan, and underscored by the Mexican delegation during Security Council thematic debates on the rule of law: ‘Those who seek to bestow legitimacy must themselves embody it; and those who invoke international law must themselves submit to it’.12 As mentioned above, the first thematic debates on the subject-matter in the early 2000s were convened by the UK delegation, and their main concern was the rule of law at the national level, in particular in post-conflict societies; it was not about the rule of law at the international level. However, E10 and non-Council states that participated in the open debate took the opportunity to address the institutional dimension as well, and very concretely regarding the Council itself, because they increasingly came at odds with the idea that the Security Council was for the five to rule alone.13 Moreover, this was also the time when the Security Council came under fire for its targeted sanctions and their negative impact on individual rights on a transnational plane. So, many states not belonging to the Council’s core, i.e. the E10 and other non-Council members, sensed that the time was ripe for sharpening criticism and to start demanding that the Security Council respect basic rule of law requirements itself.

11 12 13

See the Joint Letters by the Permanent Representatives of the Group of Friends of the Rule of Law to UN Secretary General Kofi Annan, from 31 January 2006 and 26 February 2007 respectively, reproduced in Bühler supra note 3, Annex 1 and Annex 2. See statement by Secretary General Kofi Annan, at UN. Doc A/59/PV.3 (2004), and statement by Ambassador Juan Manuel Gómez Robledo (Mexico), at UN Doc. S/PV.5052 (Resumption 1) (2004), at 34. This expression is based on the title of David Bosco’s history of the Security Council, see D.L. Bosco, Five to Rule Them All – The UN Security Council and the Making of the Modern World (2009).

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Denmark became, in 2006, the first E10 to organize a thematic debate on the rule of law in the Council, focusing on ‘strengthening international law’,14 including due process rights in relation to the adoption of sanctions.15 This approach differed from the previous one of the UK in that the focus was clearly on the institutional dimension emphasized by Annan. Many saw it as a significant step in furthering the commitments undertaken a year before by the heads of state and government in the 2005 World Summit Outcome; in particular in regard to the need to respect the purposes and principles of the Charter and international law, to promote ‘an international order based on the rule of law and international law’,16 as well as to call upon the Security Council ‘to ensure that fair and clear procedures exist for placing individuals and entities on sanctions lists and for removing them’.17 Mexico continued with this approach and took it a few steps further when, in 2010, its delegation to the UN organized another thematic and open debate in the Security Council on the rule of law.18 Mexico changed the agenda item to ‘the promotion and strengthening of the rule of law in the maintenance of international peace and security’,19 in order to emphasize the understanding that the Security Council has to foster and respect international law while fulfilling its primary responsibility. Accordingly, the outcome of this debate, i.e. a Presidential Statement that was negotiated in the weeks prior to the meeting among legal advisers of the missions and other delegates at the expert level, includes a reaffirmation of the Council’s commitment to ensure fair and clear procedures regarding listing and de-listing of persons and entities in its sanctions regimes, as well as recognition of the importance of the Office of the Ombudsperson established less than a year before.20 It also makes a call to resorting more often to Chapter VI of the UN Charter, emphasizing the role of the Secretary General in mediation according to Article 33 of the UN Charter, and calls upon states that have not done so—including the P5 with the notable exception of the UK—to consider accepting the compulsory jurisdiction of the ICJ. In regard to peacebuilding and peacekeeping operations, the 2010 14 15 16 17 18 19 20

See Letter from the Permanent Representative of Denmark to the United Nations addressed to the Secretary General, UN Doc. S/2006/367 (2006). UN Doc. S/PRST/2006/28 (2006). UN Doc. A/RES/60/1 (2005), para. 134. Ibid., para. 109. See UN Doc. S/PV.6347 (2010). See Letter dated 18 June 2010 from the Permanent Representative of Mexico to the United Nations addressed to the Secretary General, UN Doc. S/2010/322 (2010) (emphasis added), in particular the concept note annexed to the letter. The Office of the Ombudsperson was created in December 2009 by Resolution 1904, see UN Doc. S/RES/1904 (2009).

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Presidential Statement contains the commitment of the Security Council ‘to ensure that all UN efforts to restore peace and security themselves respect and promote the rule of law’.21 All in all, it can be said that the 2010 Presidential Statement places the institutional dimension of the rule of law at the centre of the debate, disseminating thus a consciousness that those who seek respect for the law must respect the law themselves; in other words, that there is no thick without thin rule of law. The institutional dimension is part and parcel of the rule of law at the international level. The latter is to be understood as the submission of all international actors to international law. This entails equality among sovereign states as it entails the respect of international legal norms and principles by international organizations and their organs, including the most powerful international organ. It means, concretely, to question and ultimately deprive of force the recurrent saying inside the Security Council, namely that the Council is the master of its own decisions, a formula often used inside the Council, especially by the Security Council Secretariat, that epitomizes how far this organ is at times from meeting basic rule of law standards. And this is the kind of rule of law promotion that permanent members are less inclined to favour, since it is tantamount to conceding limits to their own power by increasing the Council’s transparency and procedural fairness in its working methods. But then again and as submitted above, the E10 work in favour of the institutional strength of the Council, while promoting ‘thin’ rule of law kind of themes like equality, transparency, and accountability. A Council which distances itself too much from these basic rule of law ideas might show off political muscle in certain global affairs, but its overall character as an international institution is thereby weakened: being perceived as opaque, arbitrary, and as a mere reflection of power politics, can diminish institutional credibility to a considerable degree. That is why strategically, it is always useful to remind the P5 that efficiency and legitimacy go hand in hand. Moreover, in today’s non-polar world, the Council’s core can ill-afford not to care about this loss of credibility and legitimacy: veto powers depend more than ever before on strategic alliances with other powers, regional but also global ones. Be it through contact groups, coalitions of the willing, or on a purely ad hoc manner, the Council’s core is expanded informally on a case-bycase basis much more frequently and substantially than what is usually realized. Even though formal reform of the Security Council still seems to be out of reach—or perhaps precisely because of it—the organ’s functions mutate, like in the case of state organs and national constitutions, without any formal 21

See UN Doc. S/PRST/2010/11 (2010).

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amendment. This is one of the reasons why the thin version of the rule of law has very thick value for the Security Council as an institution. One could also say in this context that inasmuch as the ‘core’ depends to such an increasing degree on the ‘periphery’, the meaning of both notions is heavily relativized. The thin version of the rule of law is very important in another sense. It is about enabling dialogue on an equal basis. Dialogue is about negotiating and re-negotiating, searching and construing agreement among diverse states, from different regions, strong and weak alike. Instead of imposing the particular, it is about setting the conditions for the joint construction of the universal. The strong remain strong and with a better bargaining position in every sense, but the weak become part of the game and thus a bit stronger—under some circumstances considerably so, in particular if the weak coalesce thereby fortifying their bargaining position in concert.22 Talking thin about the rule of law is therefore talking about the most intrinsic value of multilateralism: it is about understanding international law as a multilateral institution, which is another way of referring to international law as a universal project. And it is an expression of the culture of formalism that Martti Koskenniemi talks about, when he reminds us of the Argentinean political philosopher Ernesto Laclau, who emphasizes the need to cultivate a culture of resistance to power that enables those who lack to articulate this lack.23 4

The Thin Line between Thick and Thin Versions

E10 lack. Hence, united in their lack, they have worked for more transparency and objective predictability regarding Security Council working methods, for opening the Council to the broader UN membership via thematic debates, for taking Chapter VI seriously in terms of collective security, as well as for fair and clear procedures within sanctions regimes, to name some of the thin rule of law work most systematically advanced by E10 states in the last fifteen years or so. The line between thick and thin versions is not always clear-cut, as the example on due process and sanctions may lead some to think. But firstly, we are talking about some very basic human rights, and secondly, it is the subjection of the Security Council itself to the UN Charter, in particular to Article 24(2), 22 23

On this see E. Benvenisiti and G. W. Downs, ‘The Empire’s New Clothes: Political Economy and the Fragmentation of International Law’ (2007) 60(2) Stanford Law Review 595, at 610‑2. See M. Koskenniemi, The Gentle Civilizer of Nations—The Rise and Fall of International Law 1870-1960 (2005), at 500-6.

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that has been at stake in this ongoing struggle regarding the observation of fair and clear procedures by the Council’s sanctions committees. However, this is only part of the broad and blurry picture. E10 states are states nonetheless, and so they too see in the Security Council a precious opportunity to advance what matters most to them. Here comes the point when the divide between the E10 and the P5 shrinks to formal divisions, insider knowledge, institutional memory, the very useful relationship with the Council’s Secretariat, and the veto power, of course. But here the divide is no longer a matter of principle(s), so to speak. Let me go back to my ‘atypical’ example: when it comes to the CTC, the rule of law leadership role of E10 countries has been practically absent. E10 states who have come to chair the CTC are usually much more concerned with enhancing the efficiency of an already too powerful subsidiary organ and its quasi autonomous body of experts (CTED),24 than with promoting rule of law standards within this body. I do also believe that even for those E10 with a sincere interest in promoting these standards, this is considerably more difficult than, let’s say, within sanctions committees, because the CTC, CTED, and the broader counter-terrorism assemblage of which the Security Council is one among many components,25 has become a regime complex that is very complicated to penetrate in just two years, or less. Be that as it may, my point here is not only to express a regret on a missing and much needed role of E10 states in regard to a Security Council committee, but to show that there are issues where certain E10 states are as eager as the P5 to promote the thick approach: it is not the transparent and accountable work of the CTC which has mattered to the P5 and several E10 alike, but the efficient promotion of counter-terrorism legal contents across jurisdictions, often framed as rule of law work via security sector reform and those kind of spins on the silent war on terror. Yet, E10 states also go thick at times on topics and issues on the international agenda that do not have a tense and often contradictory relationship with the rule of law like counter-terrorism does and, more recently, the fight against illicit traffic of migrants.26 I am thinking of thick rule of law in a positive light, so to speak: human rights, democracy, independent judiciaries, peace and justice, 24 25

26

For an insightful analysis of the work of the CTC and CTED, see I. Roele, ‘Disciplinary Power in the UN Counter-Terrorism Committee’, (2014) 19 Journal of Conflict & Security Law 49. For an incisive analysis of global counter-terrorism (in particular sanctions regimes) from the theoretical perspective of legal assemblages, see G. Sullivan, ‘Transnational Legal Assemblages and Global Security Law: Topologies and Temporalities of the List’, (2015) 8 Transnational Legal Theory 81. See UN Doc. S/RES/2240 (2015), and subsequent ones.

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and some may even consider the global climate—a topic that has received much impetus from permanent and non-permanent European members alike, such as the UK, Germany, and most recently the Netherlands.27 These are topics that mostly European and other Western states (the WEOG with some important exceptions) champion with crucial allies from other regions. The reasons for these ‘European centred’ rule of law promotion activities are manifold, related to national political agendas, diplomatic prestige, and the belief of actually knowing what good governance is about. It must also be said that some of these Western states tend to have good credentials for promoting certain contents due to their positive rule of law records at home. I actually think that this kind of thick rule of law promotion by E10 states is legitimate in itself, and valuable in the context of the struggle not only for a better world in general terms, but for a more secure one in particular: not only strengthening and promoting the rule of law in the maintenance of international peace and security,28 but strengthening and promoting the rule of law for the maintenance of international peace and security. Indeed, the motto ‘no peace without justice’ reflects the search for peace through the rule of law. But the notion of peace through the rule of law is not the same as the idea of peace through (positive) law.29 It is much more, as it entails values that are not necessarily reflected in valid law, and it is less at the same time, as it is about particular contents that are not always the result of formal process and deliberation. So, the question is rather how a ‘positive thick rule of law’ behaves vis-à-vis the thin version?

27

28 29

Originally pushed by the UK (see for example, UN Doc. SC/9000 (2007)), Germany achieved the greatest success so far as the open thematic debate on the issue and its outcome show, see UN Doc. S/PRST/2011/15 (2011). Since then, several ‘Arria formula meetings’ on climate change implications for security in specific regions have been held, but no formal meeting or outcome could be achieved. A recent Arria formula meeting which adressed the security implications of global warming comprehensively took place in December 2017 under the auspicies of the UK, France, Italy, Japan, and Sweden, as well as the Netherlands and Peru, who entered the Security Council in 2018. The Netherlands, without having entered the Council by that time, played a leadership role in this case. These informal-informals seeked to promote and reinforce the Presidential Statement adopted under German leadership in 2011; see Security Council Report, ‘What’s in Blue: Climate Change Arria Formula Meeting’ (14 December 2017), at www.whatsinblue.org/2017/12/ climate-change-arria-formula-meeting.php#. Supra note 19, and accompanying text. Borrowing the expression from H. Kelsen, Peace through Law (1944).

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How to Thicken the Thin Version (with Substance) without Abandoning its (Institutional) Thickness, and the Role of E10 in Overcoming this Apparent Contradiction

The basic tension between thin and thick versions of the international rule of law have to do with the assumption that certain values are intrinsically good in and of themselves, hence universal and ‘out of the question’. Being understood as out of the question means that no deliberation is needed. Whenever this is the case regarding principles and norms that have been accepted as law, these substantive values do not conflict with the thin version, which is positivistic and formalistic indeed. This is so because they have been already accepted as valid law and are thus the result of formal process and deliberation (diplomatic negotiations that led to an agreement). In this sense, the thin version has necessarily become thicker over time, accumulating substance, for instance whenever human rights are recognized via treaties and custom. The struggle for due process rights within Security Council sanctions regimes can be thus well described as an activity that promotes a thicker rule of law without clashing with the thin version. It is in this sense that some authors, like Heike Krieger and Georg Nolte, describe the ‘international rule of law’ as the more contemporary understanding of a ‘thicker international law’: On a more general level, a development occurred which consisted primarily in a higher degree of institutionalisation at the international level, a tighter network of rules in many areas, and a recognition of “thicker” human rights standards.30 Krieger and Nolte are, however, careful in observing that this thicker version does not go as far as to draw on ‘stronger analogies with particular forms of state governance’.31 In rejecting these kind of domestic analogies, they also favour the distinction between the rule of law at the international and national levels, and with it, although without articulating it in these terms, they rebuff the transnational enterprise that Humphreys describes as a legal intervention that seeks to impose particular (national or regional, and usually Western) standards on the rest.32 Furthermore, Krieger and Nolte mention:

30 31 32

H. Krieger and G. Nolte, ‘The International Rule of Law – Rise or Decline? Points of Departure’, (2016) KFG Working Paper Series 1, at 8. Ibid., at 10. See Humphreys supra note 10.

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The designation of contemporary international law, as it has developed during the past 25 years, as “the international rule of law” is restricted insofar as we want to focus on the particular role of legal norms (rules and principles), in their interconnectivity as a system, as well as on the intrinsic value which law offers (Eigenwert des Rechts) for international relations in comparison to other normative orders.33 Here, we face a conception of the international rule of law that includes substantive content, but inasmuch as these are the result of formal processes that have led to their adoption as valid legal norms, that can be identified as such because they pertain to a legal order. This is Kelsen’s objective basis of validity,34 or in Hartian terms, those primary rules that have been recognized as part of a unified system of law.35 So we are back, all the weight gain notwithstanding, to the thin version tied to the conception of international law as a legal system.36 Now, this is not to say that E10 states should limit their initiatives within the Council in terms of a narrow test of positive law; as agents of international law and members of an organ that engages much in law development (to put it carefully), they have a right of initiative, and may very legitimately push for new developments, provided this is submitted to deliberation about how the law should be, i.e. the transparent distinction between lex ferenda and lex lata. Negotiation and re-negotiation of meaning through dialogue is one of the most important rule of law ideas at the international level,37 and many would say that it is what multilateral diplomacy is actually about. In other words, E10 states, like the P5, can and should go for a more robust international law which also reflects their priorities, values, and beliefs about how the law that rules them all should be. Transforming the particular into the universal is a legitimate aspiration as long as it is subjected to the accepted and pre-established means of bringing (political, moral) substance into (legal) form. In order to promote a more robust version of the rule of law, E10 states and P5 alike should be always aware that there is need for common ground that can accommodate different views. The starting point therefore is necessarily thin and formalistic (procedural fairness is the guiding principle); only from 33 34 35 36 37

Krieger and Nolte, supra note 30, at 10. See H. Kelsen, Reine Rechtslehre (1960), at 2-15, and 198-204. See H.L.A. Hart, The Concept of Law (1997), at 79-110. Supra note 5, and accompanying text. See, for instance, the statement by the former Permanent Representative of Germany to the UN, Ambassador Wittig, during the 2010 Security Council open debate on the rule of law, mentioning that ‘[t]he rule of law will be accepted by all, both nationally and internationally, only if it is the result of a dialogue’. UN Doc. S/PV.6347, Resumption 1 (2010), at 19.

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this basis can substantive agreement be built over time; anything else remains particular views on substance.38 Hence, E10 states ought not to confuse this with spreading the particular as the universal, i.e. they should avoid using the Council as a temporary platform for imposing their standards on the rest. This would not only run counter to their own long-term and structural interests (as permanent members of the General Assembly), but diminish their standing as legitimate promoters of the rule of law inside a body that depends on their contribution to making it more transparent and democratic. This is also in the institutional self-interest of the Security Council and of the UN more broadly, for it is only in this sense that the Security Council can aspire to the legitimacy and credibility it is in greater need of than ever before. To be sure, our nonpolar world reflects new and dynamically evolving power constellations that constantly escape the ability and willingness of the P5. 6

By Way of Conclusion: E10, the Web, and the Rule of Law

To conclude, a final remark is due on the role of E10 states in regard to the above-mentioned mutations of the Security Council, which are already in place via networks and coalitions—never mind formal reform. Certain E10 states, especially those that are inserted into the edges of the web, i.e. those that participate in informal global security governance structures like the Financial Action Task Force (FATF), the Proliferation Security Initiative (PSI), the Global Counterterrorism Forum (GCTF) and the like, might be tempted to further propel the interplay of the Security Council with these and similar coalitions39—also in areas beyond security which relate to the Council’s work. For those E10 that are well-connected, much would suggest that by increasing the enmeshment of the Security Council with these informal networks, the Council’s core would be practically expanded, reaching beyond the P5, and so giving them the opportunity to become more influential inside the Security Council through the backdoor, so to speak. This is true. A strong FATF member, for example, which is not a P5 at the same time (rather a few), is today in a stronger position, since much of the decisions of the Security Council on counter-terrorism and counter-proliferation not only depend on the FATF for implementation, but are also to a large extent the result (as a matter of design)

38 39

See Rodiles, supra note 1, at 346-347. On these coalitions and their interplay with the SC, see Alejandro Rodiles, Coalitions of the Willing and International Law – The Interplay between Formality and Informality (2018).

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of the interplay between both global security bodies.40 But this bet is reserved to only a few non-permanent members, so that the core might be expanded to a certain degree, but it remains—in the mood of privileged concentric circles— selective and exclusive to the majority, and particularly to the less powerful. The division and power asymmetries might even worsen, because the means of this selective and limited expansion are informal, and hence opaque and indirect, as opposed to the well-known and legally recognized selectivity of the Security Council, according to the rules of the Charter. In the end, while E10 states might have pragmatic interests in expanding and strengthening the web, of which the Security Council is a crucial component, they would miss thereby the bigger picture and put the relative autonomy of international law in greater jeopardy. The risk is losing sight of ‘the intrinsic value which law offers (Eigenwert des Rechts) for international relations in comparison to other normative orders’.41 For E10 states with strong beliefs in democracy, human rights, and justice; or more succinctly, for those who see in their elected membership a chance to promote peace through the rule of law, the greatest peril of embracing the web and informality is that it forecloses the possibility to thicken over time—with the patience that diplomatic deliberation and procedural fairness require—international law as a universal and historical project, that is the ideal of the rule of law at the international level.

40 41

See Rodiles, ‘The Design of UN Sanctions through the Interplay with Informal Arrangements’, in L. van den Herik (ed.), Research Handbook on UN Sanctions and International Law (2017), at 177-193. Supra note 30.

Chapter 13

Elected Members and Agenda-Setting: The Security Council as Peace Broker Daniëlla Dam-de Jong 1

Introduction

It is an often heard criticism that elected members have relatively modest opportunities to influence the decisions of the Security Council, despite their numerical majority position on the Council. This criticism holds true in as far as the impact of elected members on the drafting of resolutions is concerned. Most of the resolutions addressing country-specific situations are drafted by (coalitions within) the permanent members of the Council (the P5) and often submitted to the elected members at a relatively late stage, sometimes with the explicit understanding that the text of the resolution is non-negotiable.1 In addition, since elected members are not vested with the veto power that accrues to the permanent members, their ability to block resolutions which are the outcome of P5 consultations is limited.2 Notwithstanding these realities that may seriously constrain the ability of elected members to participate in a meaningful way in the work of the Council, elected members do have various alternative opportunities to impact the Council’s work. The current chapter focuses on thematic debates as one such opportunity. The rotating presidency of the Security Council offers elected members a window of opportunity to substantively influence the Council’s agenda and future work, including by scheduling debates on cross-cutting thematic issues that are relevant to the work of the Council.3 This chapter argues 1 2

3

See C. Keating, ‘Power Dynamics between Permanent and Elected Members’, in S. von Einsiedel, D. Malone and B. Stagno Ugarte (eds.), The UN Security Council in the 21st Century (2016), at 145. See 1945 Charter of the United Nations, 1 UNTS XVI, Art. 27(3). Of course, this is based on a scenario in which the P5 has been able to reach agreement over the issue at hand, which is not self-evident. In addition, the elected members can increase their impact by forming a block together. See also J. Langmore and J. Farrall, ‘Can Elected Members Make a Difference in the UN Security Council? Australia’s Experience in 2013–2014’, (2016) 22(1) Global Governance: A Review of Multilateralism and International Organizations, at 69. It should be noted that the President is to distribute the provisional programme of work of the Security Council to its members well in advance of its Presidency. Other members

Schrijver and Blokker (eds.), Elected Members of the Security Council: Lame Ducks or Key Players? © 2020 Koninklijke Brill nv. isbn 978-90-04-42537-8. pp. 197-216. | DOI:10.1163/9789004425392_014

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that elected members, through a careful use of the possibility to include thematic issues in the Council’s agenda, can have a profound impact on its work in the long-term. In order to substantiate this argument, section 2 discusses the functions of the Council’s thematic work and situates these within the broader academic discussion of the Council’s overall mandate. Subsequently, section 3 examines the impact of two selected thematic issues on the work of the Council. Lastly, section 4 advocates that elected members should take the initiative to include the design, implementation and enforcement of peace agreements as a thematic issue on the agenda of the Council. 2

The Council’s Thematic Work

The bulk of the daily work of the Security Council consists of addressing specific situations that require the Council’s immediate attention. It is precisely ‘to ensure prompt and effective action by the United Nations’ that its members agreed in 1945 to ‘confer on the Security Council primary responsibility for the maintenance of international peace and security’.4 However, the formal mandate of the Security Council is not necessarily confined to emergency situations. Pursuant to its responsibility ‘to maintain international peace and security’, the Security Council can also consider more general issues that are relevant to its work. It has increasingly done so, starting in the mid-1980s with the adoption of a Presidential Statement and a subsequent resolution with respect to terrorism.5 The Council’s thematic work refers to instances where the Security Council meets to discuss cross-cutting issues that transcend its work on country-specific situations, but which are nevertheless highly relevant to it. In some instances, particular themes are taken up regularly by the Council and are therefore explicitly included in the Security Council’s agenda.6 Examples of such recurring themes include children and armed conflict, the rule of law, peacebuilding, the protection of civilians and international terrorism.7 In other instances, a theme is considered only once or sporadically and is therefore discussed un-

4 5 6 7

can oppose the inclusion of particular agenda items. See Working Methods Handbook, UN Doc. S/2017/507 (2017), at 3. UN Charter, supra note 2, Art. 24. See L. Sievers and S. Daws, The Procedure of the UN Security Council (2014), at 44-5. Ibid., at 45-7. For an overview of thematic topics that have been discussed by the Security Council throughout the years, see www.un.org/en/sc/repertoire/studies/general_studies.shtml.

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der the umbrella notion of ‘maintenance of international peace and security’.8 Examples of the latter include natural resources and armed conflict, climate change and transnational crime.9 A distinction can further be made between themes addressing the causes and consequences of insecurity, such as natural resource management or children and armed conflict, and themes that relate to the tools to prevent and resolve situations that threaten international peace and security, such as UN peacekeeping and sanctions.10 Both categories have obtained a firm position on the Security Council’s agenda. Thematic issues are often considered through ‘open’ debates, allowing the broader UN membership to participate at their request.11 This allows nonCouncil members to express their views on the theme concerned and, arguably, enhances the legitimacy of any subsequent decisions taken on the subject matter.12 The outcomes of thematic debates vary, but often these debates result in the adoption of a Presidential Statement or a resolution, setting out norms and standards to guide the Council’s future work and/or to promote a particular course of action by UN member states. In addition, the SecretaryGeneral is regularly requested to prepare a follow-up report, which serves to inform the Security Council’s decisions and is used as input for future debates on the theme. In these ways, thematic debates—and the resulting resolutions, statements and reports—contribute to building a normative framework for action.13 Their aim is to help the Council to move away from ad hoc responses and to develop more meaningful and comprehensive policy options to address problems that transcend the country-specific situations that are on its agenda. Arguably, the thematic work of the Council is essential when it comes to streamlining its responses to country-specific situations. By taking the lead in organizing open debates on such cross-cutting issues, elected members indirectly feed the debate on country-specific issues. The standard-setting function of the Council’s thematic work has however also been scrutinized in various settings. A concern that has been voiced is the risk that the Security Council—through its thematic work—gradually expands the definition of a threat to the peace to encompass generic rather

8 See Sievers and Daws, supra note 5, at 47. 9 See supra note 7. 10 See Keating, supra note 1, at 145. 11 See Sievers and Daws, supra note 5, at 23. 12 It should however be noted that only those participating states that are members of the Security Council have a right to vote. See Art. 37 of the Security Council’s Provisional Rules of Procedure. 13 See Keating, supra note 1, at 150.

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than geographically and temporally defined threats.14 This has two implications. First, the Security Council has been accused of acting as legislator when it uses its powers under the UN Charter to adopt resolutions setting out concrete obligations for states in relation to generic threats.15 Arguably, there are however good reasons for the Security Council to do this, the most important being that particular threats simply cannot be geographically defined.16 This is especially true for terrorism and the proliferation of weapons of mass destruction, which have been the principal subjects of the Council’s so-called legislative practice.17 In the opinion of this author, the criticism should therefore primarily be regarded as cautioning the Council to carefully balance the need to use its powers under Chapter VII with the need to respect UN member states’ discretion to address particular issues through the conventional ways of international law-making.18 The second implication of the gradual expansion of the definition of a threat to the peace by the Security Council relates to the demarcation between the Council’s mandate and that of other principal organs of the UN. The Security Council has been accused of encroaching upon the mandates of the UN General Assembly and the Economic and Social Council, especially where the Security Council has considered non-traditional security threats in the social, environmental or developmental sphere.19 An example concerns the Council’s consideration of climate change, which it designated as a factor aggravating 14

15 16 17

18

19

See for example M. Happold, ‘Security Council Res. 1373 and the Constitution of the United Nations’, (2003) 16(3) Leiden Journal of International Law at 593-610; and S. Talmon ‘The Security Council as World Legislature’, (2005) 99 American Journal of International Law, at 175-93. See ibid. See T. Burri, ‘The United Nations Charter, the Security Council, and Creativity’ (June 13, 2017), at 10. Available at SSRN: http://dx.doi.org/10.2139/ssrn.2985657. See for example, UNSC Res. 1373 (2001) on threats to international peace caused by terrorist acts, which sets out several measures that states must take to combat terrorism, including with respect to the financing of terrorism. One of the factors that makes the implementation of this resolution problematic is that it does not provide a definition of ‘terrorism’ nor specify the terrorist groups to which it applies. There is not a generally accepted definition of terrorism on which states can rely for the implementation of the resolution. Another example concerns UNSC Res. 1540 (2004) on weapons of mass destruction, which is similarly broadly formulated. From a legal point of view, it is for the Security Council to decide what constitutes a threat to the peace, subject to good faith limitations, and it is for member states to abide by the Security Council’s decisions. From a political perspective, however, the Security Council relies on the UN member states to implement its decisions and therefore needs their support. For a detailed analysis of the Security Council’s discretion under Art. 39 of the UN Charter, see A. Orakhelashvili, Collective Security (2011), at 150-75. See Sievers and Daws, supra note 5, at 48 and 582-4.

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particular threats to the peace.20 Arguably, there is a delicate boundary that the Council should respect when considering these issues. Yet, discarding developmental and environmental issues as falling outside the competence of the Security Council would, in the opinion of the present author, be counterproductive since it would be akin to ignoring their security implications. At the same time, taking these issues on board would not necessarily imply that enforcement measures pursuant to Chapter VII of the UN Charter would be an appropriate response to address these indeterminate threats. The concerns that have been raised with respect to the Security Council’s thematic work should therefore primarily be appreciated for their contribution to interpreting and refining the scope of the Council’s mandate. However, these concerns should not detract attention away from the valuable functions that thematic debates may perform with respect to developing comprehensive policy options for the purpose of informing the response by the Security Council to the country-specific situations that are on its agenda. The following section explores this interplay in more detail. 3

The Council’s Thematic Work in Practice

For the purpose of illustrating the normative impact of the Council’s thematic work on its country-specific work, the current section examines two themes that were taken up by the Security Council on the initiative of elected members. These concern firstly the protection of civilians in armed conflict, a theme that was introduced by Canada during its presidency of the Security Council in 1999 and has since become a recurring topic on the agenda of the Security Council and, secondly, the issue of natural resources causing or fueling armed conflicts, a topic that was taken up on the initiative of Belgium during its presidency in 2007. 3.1 Protection of Civilians The second half of the twentieth century witnessed important changes in the landscape of armed conflict. There was firstly a gradual shift from inter-state to intra-state armed conflict, bringing the battlefield closer to the civilian population. Secondly, especially since the early 1990s, respect for international hu20

See for example, the Presidential Statement of 20 July 2011, in which the Security Council ‘expresses its concern that possible adverse effects of climate change may, in the long run, aggravate certain existing threats to international peace and security’, UN Doc. S/ PRST/2011/15 (2011).

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manitarian law by combatants seriously declined and civilians were increasingly directly targeted as a tactic of war.21 The 1994 Rwandan genocide and the massacre of Bosnian men and boys in the Srebrenica region in 1995 are key examples. Another example is the armed conflict in Sierra Leone in the late 1990s, where the Revolutionary United Front (RUF) was known for its policy to cut off the limbs of civilians as part of a campaign of terror against the civilian population.22 These events and the inability of the UN to effectively respond to them motivated Canada to propose that the Security Council hold an open debate on the protection of civilians in armed conflict on 12 February 1999.23 Canada’s Minister of Foreign Affairs at the time, Lloyd Axworthy, presiding at the debate, emphasized the vital role that the Security Council has to play in confronting threats to human security. He stated that ‘[t]he ultimate aim of the Council’s work is to safeguard the security of the world’s people, not just the States in which they live. Clearly, faced with the disproportionate toll that modern conflict takes on civilians, the protection of individuals should be a primary consideration in the Council’s activities.’24 He identified four principal challenges that the Council should address, including conflict prevention, ensuring respect for international humanitarian and human rights law, promoting accountability and stopping illegal arms transfers.25 The Presidential Statement adopted pursuant to the debate addressed three out of the four challenges put forward by Canada. In the statement, the Council called on all parties concerned to strictly abide by their obligations under international humanitarian law and international human rights law. More specifically, it strongly condemned the deliberate targeting by combatants of civilians in armed conflict and expressed its willingness to respond ‘to situations in which civilians, as such, have been targeted or humanitarian assistance to civilians has been deliberately obstructed’.26 The Council further called on states to ensure accountability at the national level and to cooperate with the ad hoc international criminal tribunals. Lastly, it emphasized that all member states, in particular weapon producing states, should restrict arms transfers

21

See Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, UN Doc. S/1999/957 (1999), paras. 8-10. 22 Ibid. 23 UN Security Council Meeting Record of 12 February 1999 on Civilians in Armed Conflict, UN Doc. S/PV.3977 (1999), at 30-3. 24 Ibid. 25 Ibid. 26 Presidential Statement on the Protection of Civilians, UN Doc. S/PRST/1999/6 (1999), at 2.

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‘which could provoke or prolong armed conflicts or aggravate existing tensions or armed conflicts in Africa’.27 The Presidential Statement therefore clearly built on Canada’s proposals, except with respect to the first challenge identified by Canada, which addressed the Council’s engagement with protection of civilians as part of its conflict prevention mandate. As a follow-up, the Security Council requested the Secretary General to prepare a report ‘containing concrete recommendations […] on ways the Council, acting within its sphere of responsibility, could improve the physical and legal protection of civilians in situations of armed conflict [and] contributions the Council could make towards effective implementation of existing humanitarian law’.28 On the basis of the recommendations contained in the report submitted by the Secretary-General in September 1999,29 the Security Council adopted Resolutions 1265 and 1296. In Resolution 1265, the Council reaffirmed its willingness ‘to respond to situations of armed conflict where civilians are being targeted or humanitarian assistance to civilians is being deliberately obstructed, including through the consideration of appropriate measures at the Council’s disposal in accordance with the Charter of the United Nations’.30 In Resolution 1296, the Council further referred to ‘the deliberate targeting of civilian populations or other protected persons and the committing of systematic, flagrant and widespread violations of international humanitarian and human rights law in situations of armed conflict’ as a threat to international peace and security.31 It further reaffirmed its readiness to consider such situations and, where necessary, to adopt appropriate steps.32 These resolutions were the first in a series of thematic resolutions addressing the protection of civilians in armed conflict. More importantly however, the normative framework that the Security Council built in these thematic resolutions has also impacted its country-specific resolutions.33 Today, the protection of civilians has become an integral part of the Council’s work. The most tangible effects of the Council’s thematic work on country-specific situations can be felt by looking at the Council’s use 27 Ibid. 28 Ibid., at 3. 29 Report of the Secretary-General to the Security Council on the Protection of Civilians in Armed Conflict, UN Doc. S/1999/957 (1999). 30 UN Security Council Res. 1265 (1999), para. 10. 31 UN Security Council Res. 1296 (2000), para. 5. 32 Ibid. 33 For an excellent overview, including quantitative data, see the reports on the protection of civilians published by Security Council Report. See for example, Security Council Report, ‘Cross-Cutting Report No. 2 on Protection of Civilians’ (14 October 2008), available through www.securitycouncilreport.org/research-reports/.

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of its principal tools to protect civilians in concrete conflict situations. Firstly, the Security Council has on several occasions resorted to the imposition of sanctions against individuals and entities violating international humanitarian and human rights law as part of its broader efforts to ensure respect for international humanitarian and human rights law by combatants.34 Secondly, modern peacekeeping operations established by the Council receive an explicit mandate to protect the civilian population.35 The thematic work that the Council has undertaken in the field of protection of civilians has therefore had a direct impact upon the design of sanctions regimes and peacekeeping operations in country-specific configurations.36 In addition, the periodic debates on the issue that have regularly occurred since 1999 have both ensured the Council’s continued engagement with the matter and have spurred novel normative developments.37 Elected members have played an essential role in initiating and consolidating the Council’s attention to this theme. In addition to the important role that Canada played in introducing protection of civilians to the Council’s agenda, several other elected members have been instrumental in sustaining the Council’s attention to the theme, including advocating protection language in country-specific resolutions. A relevant example includes the leadership role played by Australia and Luxembourg with respect to promoting humanitarian access in Syria. Their efforts resulted in the introduction of an explicit demand on the Syrian authorities to allow for humanitarian access in the operational part of Resolution 2139 (2014), which was co-sponsored by Jordan.38 This was significant, considering the tensions within the Council with respect to Syria. Based on these examples 34

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For concrete examples, see H. Roskam, ‘Crime-Based Targeted Sanctions: Promoting Respect for International Humanitarian Law by the Security Council’, in T. Gill, T. McCormack, R. Geiß, H. Krieger and C. Paulussen (eds.), Yearbook of International Humanitarian Law Volume 19, 2016 (2018), at 89-117. See L. Hultman, ‘UN peace operations and protection of civilians: Cheap talk or norm implementation?’, (2013) 50(1) Journal of Peace Research, at 59-73, who demonstrates that not only have peacekeeping operations received an explicit mandate to protect the civilian population since 1999, but the mandate of these operations also tends to be more robust. But note J. Weschler, ‘Acting on Human Rights’, in Von Einsiedel, Malone and Stagno Ugarte (eds.), supra note 1, at 267, who argues that ‘the Council’s application of the principles agreed upon in the abstract [i.e. through its thematic work] to concrete conflict situations has been at best inconsistent and it has failed to establish operational mechanisms with teeth to implement these norms’. See for example S. Sheeran and C. Kent, ‘Protection of Civilians, Responsibility to Protect, and Humanitarian Intervention: Conceptual and Normative Interactions’, in H. Willmot et al. (ed.), Protection of Civilians (2016). See UNSC Res. 2139, UN Doc. S/RES/2139 (2014), para. 6. This resolution was preceded by a Presidential Statement, drafted by Australia and Luxemburg. See UN Doc. S/PRST/2013/15,

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of cross-fertilization between the thematic agenda and the Council’s countryspecific work, it may therefore be argued that elected members have played a significant role in shaping the Council’s practice in this field. 3.2 Natural Resources and Armed Conflict The initiative of Belgium to convene an open debate on the nexus between natural resources and armed conflict in 2007 is another case in point where the Security Council’s thematic work feeds into its resolutions on country-specific situations. However, where the debates on the protection of civilians were primarily forward-looking and intended to build a normative framework for the Council’s future work, the principal reason for Belgium to organize an open debate on natural resources and armed conflict was to consolidate and reflect on existing practice. More specifically, Belgium’s then Minister of Foreign Affairs presiding at the debate, Karel de Gucht, stated that it served to take stock of past experiences, to allow for a ‘horizontal reflection process’, to focus on the lessons learned from the Council’s experience and to look for means to strengthen the effectiveness of the Council’s instruments.39 At the time of the debate, the Security Council had already gained extensive experience in addressing the nexus between natural resources and armed conflicts. It had previously adopted commodity sanctions in relation to timber from Cambodia and Liberia and in relation to diamonds from Angola, Sierra Leone, Liberia and Côte d’Ivoire.40 In addition, natural resources management was an integral part of the mandate of selected peacekeeping operations, most notably UNTAC in Cambodia and UNMIL in Liberia,41 and the Council had

39

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adopted on 2 October 2013. See also Security Council Report, Cross Cutting Report on Protection of Civilians in Armed Conflict (15 May 2015). See the Meeting Record for the debate of 25 June 2007, UN Doc. S/PV.5705 (2007), at 2 (speech by the Belgian representative in his capacity as President of the Security Council). See also Belgium’s concept paper for the Security Council open debate, UN Doc. S/2007/334 (2007). See for example, UNSC Res. 792 (1992) on Cambodia; UNSC Res. 1173 (1998) on Angola; UNSC Res. 1306 (2000) on Sierra Leone; UNSC Res. 1343 (2001) and 1478 (2003) on Liberia; and UNSC Res. 1643 (2005) on Côte d’Ivoire. The United Nations Transitional Authority in Cambodia (UNTAC) was established through UNSC Res. 717 (1991). Its mandate included advising the interim government on natural resources management, conducting border controls to monitor violations of the moratoria that were installed on logs and gems, and overseeing the legitimate export of sawn timber. The United Nations Mission in Liberia (UNMIL) was established through UNSC Res. 1509 (2003) with an explicit mandate to assist the transitional government in restoring proper administration of natural resources. See D.A. Dam-de Jong, International Law and Governance of Natural Resources in Conflict and Post-Conflict Situations (2015), at 332-4 and 336-9.

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instructed several Panels of Experts to investigate the nexus between natural resources and conflict financing.42 Furthermore, the Council had given impetus to innovative solutions outside the UN system proper to curb the trade in natural resources as a factor in conflict financing. Reference can be made most notably to the Kimberley Process for the Certification of Rough Diamonds, an inter-state certification system aimed at banning the trade in diamonds that are used by armed groups to overthrow legitimate governments.43 The Presidential Statement read out by Karel de Gucht at the end of the open debate on behalf of the Council referred to several of these achievements, but, more importantly, it formulated important policy guidelines for the UN, regional organizations and UN member states with respect to addressing the nexus between natural resources and armed conflict. Amongst these are firstly the role of the UN and regional peacekeeping operations in assisting governments to prevent the illegal exploitation of natural resources from fueling armed conflicts. The Security Council referred to the importance of including this conflict dimension into the mandates of peacekeeping operations.44 Secondly, the Council emphasized ‘the importance of cooperation, in shared responsibility, among source, transit and destination countries in preventing and combating trafficking, illicit trade, and illegal exploitation of natural resources’.45 Finally, the Security Council recognized ‘the need for the private sector to contribute to the good governance and avoidance of illegal exploitation of natural resources in countries in conflict’.46 Even though it is difficult to measure the precise impact of the Presidential Statement on the Council’s subsequent country-specific practice, one can observe that in the last decade the Council did in fact strengthen its policy with regard to natural resources along the lines set out in the Presidential Statement. The Council has, for example, increasingly addressed the private sector directly in its resolutions, for example through the imposition of targeted sanctions against individuals and entities involved in the illegal trade in natural resourc-

42

43 44 45 46

See for example, Final Report of the Monitoring Group on Angola, UN Doc. S/2000/1225 (2000); and Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, UN Doc. S/2001/357 (2001). See D.A. Dam-de Jong, ‘UN Natural Resources Sanctions Regimes: Incorporating Marketbased Responses to Address Market-driven Problems’, in L.J. van den Herik (ed.), Research Handbook on UN Sanctions and International Law (2017), at 147-74. See UNSC Presidential Statement 22 (2007), para. 7. Ibid., para. 8. Ibid., para. 10.

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es.47 In addition, it mandated its Group of Experts on the Democratic Republic of Congo (DRC) to draw up due diligence guidelines for companies throughout the supply chain with respect to minerals originating from the DRC, which it subsequently integrated in its sanctions practice.48 These guidelines place a responsibility both on the private sector and on source and destination countries for countering the trade in natural resources that fuel armed conflicts.49 A final observation concerns the expansion by the Security Council of the mandate of particular peacekeeping operations to include a robust natural resources component. A prime example concerns MONUSCO (previously MONUC) in the DRC, which is mandated to assist the Congolese government in reinstating government control over the mining sites and to improve the management of its natural resources.50 The 2007 debate on the nexus between natural resources and armed conflict has only marginally been followed-up in the thematic work of the Council. Other debates addressing natural resources include the 2013 debate on conflict prevention and natural resources, initiated by the UK, the 2016 debate on Water, Peace and Security, initiated by Senegal, and the 2018 debate on ‘root causes of armed conflict—the role of natural resources’, initiated by Bolivia.51 However, all four debates were conducted under the broader umbrella notion of ‘maintenance of international peace and security’. In this sense, the 2007 debate can be considered to be a stand-alone issue. It has however provided the Security Council with the opportunity to set out policy guidelines with respect to the nexus between natural resources and armed conflict in a Presidential Statement. These guidelines were subsequently implemented in country-specific resolutions. The debate thereby converted the Security Council’s ad hoc approach in relation to specific conflict situations into a more comprehensive strategy across various situations.

47 48 49 50

51

See for example, UNSC Res. 1857 (2008), para. 4(g) on the DRC; and UNSC Res. 2134 (2014), preamble and operative para. 37(d) on the Central African Republic. See UNSC Res. 1896 (2009), para. 7 and UNSC Res. 1952 (2010), paras. 7 and 9. See for another example UNSC Res. 2023 (2011) on Eritrea. This process started with UNSC Res. 1756 (2007), in which the Security Council instructed MONUC ‘to assist the Government of the Democratic Republic of the Congo in establishing a stable security environment in the country, and, to that end, to… support operations [of the Congolese army] with a view to… prevent the provision of support to illegal armed groups, including support derived from illicit economic activities’. See further for example, UNSC Res. 1952 (2010), para. 16 and Res. 1991 (2011), para. 17. See UN Doc. S/PV.6982 (2013) on Conflict Prevention and Natural Resources, UN Doc. S/PV.7818 (2016) on Water, Peace and Security and UN Doc. S/PV.8372 (2018). No formal outcome resulted from these debates.

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Reflections on the Contribution of the Thematic Issues to Security Council Practice This section explored two thematic issues that have both impacted the work of the Council on country-specific issues, albeit in different ways. The thematic work on protection of civilians has profoundly influenced the approach of the Council in a variety of country-specific settings, to the extent that protection of civilians has become a guiding principle in the Council’s work. The impact of the thematic debate on natural resources on the other hand has been more modest, but it has allowed the Council to consolidate its approach towards addressing the role of natural resources in fueling and financing armed conflicts. These examples clearly show that thematic debates can make a positive contribution to the work of the Security Council. Although experiences with the format of thematic debates are mixed,52 this section shows that debates on particular themes—either because these are genuinely cross-cutting in terms of the Council’s practice or because of their (future) implications for international peace and security—can be an effective format for elected members to ensure a more lasting effect on the Security Council’s practice. It is also one of the most important tools for elected members to ensure that permanent members reflect more broadly on their practice and thereby to enhance consistency in the longer term. 3.3

4

Suggestions for Future Themes: the Security Council as Peace Broker

This last section focuses on the Security Council’s role in the negotiation, implementation and enforcement of peace agreements as a potential topic for a future thematic debate. This is a highly pertinent issue, since the majority of armed conflicts today end through a negotiated settlement.53 At the same time, nearly half of these peace agreements break down within five years after their conclusion, which implies a relapse into armed conflict for the state(s) concerned.54 For the maintenance of international peace and security, it is therefore of the utmost importance to devise a comprehensive strategy to ensure the success of these agreements. Arguably, the Security Council’s active 52 53 54

Sievers and Daws, supra note 5, at 50-1. See P. Wallensteen, Understanding Conflict Resolution (2015), at 32. See S. Högbladh, ‘Peace agreements 1975-2011 - Updating the UCDP Peace Agreement dataset’, in T. Pettersson, and L. Themnér (eds.), States in Armed Conflict 2011 (Uppsala University Department of Peace and Conflict Research Report 99 2012), at 51.

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contribution towards the implementation of peace agreements would be a key aspect of such a strategy. Section 4.1 explains the reasons for proposing this theme, while section 4.2 analyses the Security Council’s current practice in relation to peace agreements. 4.1 Why Peace Agreements? Finding a correlation between compliance with peace agreements and the Security Council’s mandate does not by itself justify holding a thematic debate on the issue. A preliminary question that needs to be raised in this context is why there is a need for the Security Council to determine its position towards peace agreements, which is a prerequisite for organizing a thematic debate on the issue. After all, the Security Council’s responsibility to maintain international peace and security does not require it to take into account arrangements to which the parties to an armed conflict have agreed. If the Security Council determines the existence of a threat to the peace pursuant to Article 39 of the UN Charter, it can take measures pursuant to Articles 41 and 42 of the UN Charter independently of any existing agreement between the parties to the armed conflict.55 The question can therefore be raised if the Security Council would have a particular responsibility for being actively engaged in the negotiation, implementation and enforcement of peace agreements, hence clarifying the need for the Council to determine its position. There are indeed several reasons explaining why there is such a need. A first reason is a principled one. The principle that states should settle their disputes in a peaceful manner is one of the cornerstones of the UN Charter.56 Under Chapter VI of the UN Charter, the Security Council has explicitly been tasked to promote the peaceful settlement of disputes. Article 33, for example, determines that ‘the Security Council shall, when it deems necessary, call upon the parties to settle their dispute by [peaceful] means’, including through negotiation. Furthermore, Article 36 authorizes the Council to make recommendations as to appropriate procedures or methods of adjustment, while it also stipulates that ‘the Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties’. These procedures would obviously include the negotiation of a peace agreement. Clearly, there is therefore a solid legal basis for the Security Council to determine its position towards peace agreements concluded by the 55 56

See generally on the Security Council’s powers pursuant to Chapter VII of the UN Charter E. de Wet, The Chapter VII Powers of the United Nations Security Council (2004). See generally C. Tomuschat, ‘Ch. I Purposes and Principles, Article 2(3)’, in B. Simma et al. (ed.), The Charter of the United Nations: A Commentary, Volume I (2012), at 181-99.

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parties to an armed conflict and to actively contribute to their conclusion and implementation.57 Another principled reason and one that applies to intra-state peace agreements specifically is that the engagement of the Council can help to strengthen the legal status of these agreements and their provisions. There is considerable uncertainty about the legal status of peace agreements concluded to end an internal armed conflict, which affects their effectiveness.58 The Security Council, through its powers under the UN Charter, has the ability to embed these agreements and their constitutive commitments within international law. This internationalization of the agreement is important, firstly as a confidence-building measure, as the engagement of international actors gives the parties (and especially non-state armed groups) confidence that the commitments will be honored.59 In addition, the Security Council’s engagement with the agreement paves the way for it to take a more active role in enforcing compliance with the agreement, e.g. through the use of sanctions, when one of the parties violates its commitments under the agreement. Apart from these more principled reasons for the Security Council to take peace agreements into consideration when exercising its responsibility to maintain international peace and security, there are also more practical reasons. An example where principle and practice are mixed relates to the principle of local ownership, as promoted in UN practice.60 From a principled perspective, local ownership can be said to promote respect for the principle of sovereignty and the right to self-determination, which require that it is for the state and its people to determine their political future. From a practical perspective, the principle of local ownership is based on the assumption that 57

58

59 60

Even though a textual interpretation of the UN Charter would confine the applicability of the provisions to peace agreements concluded between States, the relevant provisions have been interpreted widely by the Security Council itself as to apply to agreements concluded between state and non-state actors as well. See ibid., para. 31-3. For an academic perspective, see C. Bell, ‘Peace Agreements: Their Nature and Legal Status’, (2006) 100(2) American Journal of International Law, at 373-412. For a more practical perspective, reference can be made to the efforts by the negotiators of the Colombian peace agreement concluded in 2016 to internationalize the agreement. See L. Betancur Restrepo, ‘The Legal Status of the Colombian Peace Agreement’, AJIL Unbound (3 November 2016), available through http://www.asil.org/blogs/symposium-colombian-peacetalks-and-international-law-legal-status-colombian-peace-agreement. See J. Bercovitch and L. Simpson, ‘International Mediation and the Question of Failed Peace Agreements: Improving Conflict Management and Implementation’, (2010) 35(1) Peace & Change, at 68-103. For a critical reflection on the principle of local ownership within UN peacebuilding, see S. Chesterman, ‘Ownership in Theory and in Practice: Transfer of Authority in UN Statebuilding Operations’, (2007) 1 Journal of Intervention and Statebuilding, at 3-26.

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support for local solutions would have a better chance of securing a sustainable peace than solutions that are forced from the outside. A peace agreement is a negotiated settlement by the parties to the armed conflict themselves and is therefore par excellence an example of local ownership of the peace process. A second practical reason is that the Security Council is often called upon by the parties to the armed conflict to provide the necessary support for the implementation of the agreement. A recent example is the peace agreement concluded by the Colombian government and the Revolutionary Armed Forces of Colombia (FARC). Even though the UN was not involved in the negotiation of the agreement, the parties requested the Security Council to participate in the mechanism established to monitor the implementation of the agreement.61 The Security Council responded to this request by establishing a political mission, which was later replaced by a verification mission.62 This is a fairly common practice and ultimately goes back to the very reason why the instrument of UN peacekeeping operations was established, namely to assist countries in the transition from armed conflict to peace.63 Lastly, the Security Council already has an extensive practice of engagement in the negotiation, implementation and enforcement of peace agreements, which is constantly evolving and intensifying.64 Notwithstanding the Council’s increasingly active engagement with peace agreements, it has so far approached these instruments in a very piecemeal fashion. A thematic debate on peace agreements might therefore enable the Council to determine its position towards peace agreements more generally and to reflect on lessons 61 62 63

64

See the Annex to the identical letters dated 19 January 2016 from the Permanent Representative of Colombia to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. S/2016/53 (2016). See UNSC Res. 2261 (2016) for the political mission and Res. 2366 (2017) for the UN Verification Mission in Colombia. On the history of UN peacekeeping, see e.g. M. Bothe, ‘Peacekeeping’, in B. Simma et al. (eds.), supra note 56, at 1171–99; and R. Gowan, ‘Peace Operations’, in T.G. Weiss, and S. Daws (eds.), The Oxford Handbook on the United Nations (2018), Chapter 23. The establishment of a peacekeeping operation or political mission for the purpose of verifying and monitoring the implementation of a peace agreement is also a very common practice, going back to the very first UN peacekeeping operation that was established in the history of the UN. The United Nations Truce Supervision Organization (UNTSO), was deployed for the purpose of monitoring the Armistice Agreement between Israel and its Arabic neighbouring countries after the 1948 Arab–Israeli war following the proclamation of the Israeli state. See untso.unmissions.org. See for example UNSC Res. 2227 (2015) on Mali, in which the Council not only welcomes and endorses the peace agreement, but also sets priorities for implementation and expresses its willingness to impose sanctions against those who obstruct the implementation of the agreement.

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learned from past experiences. The following section sets out suggestions for focusing the debate. 4.2 Focus for the Debate A thematic debate on peace agreements should focus on the various functions that the Security Council can perform with respect to the design and implementation of the agreement, based on its practice regarding past and current peace processes. With respect to the design of peace agreements, it is relevant to examine the Council’s practice of setting parameters for the negotiation of peace agreements. The Council’s practice in relation to the Syrian peace process constitutes a first and highly contentious example, where conflicting interests within the P5 have made it exceptionally difficult to reach an understanding on how to address the situation. Notwithstanding these sensitivities, the Security Council has been able to reach consensus on some essential parameters for the peace process. While emphasizing local ownership of the peace process, the Security Council also provided guidelines to the parties regarding the outcomes of the negotiations, namely the establishment of a transitional government that should satisfy requirements of inclusiveness and which should have full authority to fulfill all state functions.65 As regards the requirement of inclusiveness, the Council emphasized in the same resolution the need for women to participate in the peace process and the goal of bringing together ‘the broadest possible spectrum of the opposition’.66 Similar examples may be found in other peace processes. With respect to the peace process in the Central African Republic, for example, the Security Council, in a 2014 Presidential Statement, formulated detailed recommendations regarding factors that

65 66

See UNSC Res. 2254 (2015), preamble. Ibid. This explicit reference to women as participants in the peace process can be connected to the Council’s thematic work on Women, Peace and Security, which started with an open debate in 2000 organized by a group of elected members, including Bangladesh, Namibia, Canada, Tunisia, Mali, The Netherlands and Jamaica. The efforts of this group resulted in the adoption by the Council of the landmark Resolution 1325 (2000) on women and peace and security, addressing women’s participation in decision-making, including in peace processes, as well as their role as victims of armed conflict. Resolution 1325 was the first in a series of resolutions on this theme. This is therefore yet another example of how elected members have used thematic debates to impact on the Council’s practice in country-specific situations. For an analysis of the impact of Resolution 1325 on peace processes, see C. Bell and C. O’Rourke, ‘Peace Agreements or Pieces of Paper? The Impact of UNSC Resolution 1325 on Peace Processes and their Agreements’, (2010) 59(4) International & Comparative Law Quarterly, at 941-980.

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should be addressed as part of the peace process.67 In addition, it formulated requirements for the peace negotiations themselves that are fairly similar to those formulated subsequently for Syria.68 Based on this practice, a first question that would be relevant for a thematic debate is what the Security Council expects of a peace process in light of its responsibility towards maintaining peace and security. When it comes to the conclusion of peace agreements, a relevant practice that deserves attention is the Council’s endorsement or welcoming of a peace agreement.69 An example concerns the Minsk Agreement in relation to Ukraine, which the Security Council expressly endorsed.70 Another example concerns the peace agreement concluded in 2016 by the Colombian government and opposition movement FARC, which was included in an official Security Council document at the explicit request of the Colombian government.71 An important question that could be addressed in the debate concerns the purpose of this practice. More specifically, should this practice be regarded merely as a statement of support by the Security Council or should it be considered as an indication of the Council’s willingness to monitor the implementation of the agreement? In addition, what are the implications of this practice for the legal status of the agreement? In addition, as indicated in section 4.1, peacekeeping operations and monitoring and verification missions play an important role in providing support to the parties to the agreement in implementing their commitments set out in the peace agreement. An example concerns the 1999 Lomé Peace Agreement for Sierra Leone, which explicitly requested a UN presence to support the 67

68

69 70 71

See UNSC Presidential Statement of 18 December 2014, UN Doc. S/PRST/2014/28 (2014), para. 3. Factors referred to by the Council include ‘preparation for the elections; the fight against impunity; formulation and implementation of a disarmament, demobilization, reintegration and repatriation strategy, including children formerly associated with armed forces and groups; and the rebuilding of effective State institutions, including through security sector reform’. Ibid. In the statement, the Security Council ‘reiterates its call upon the Transitional Authorities to take concrete action, with the full, effective and equal participation of women, towards an inclusive and comprehensive political dialogue and reconciliation process at the local and national levels’. For specific examples, see S. van Hoogstraten, N. Schrijver, O. Spijkers and A. De Jong (eds.), The Art of Making Peace: Lessons Learned from Peace Treaties (2017). See UNSC Res. 2202 (2015). See Letter dated 29 March 2017 from the Secretary-General addressed to the President of the Security Council, UN Doc. S/2017/272 (2017), which contains the request by President Santos of Colombia in Annex I and an English translation of the peace agreement in Annex II.

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implementation of the agreement.72 Other examples include the 2003 Accra Comprehensive Peace Agreement for Liberia and the 2016 Colombian Agreement.73 A question for the debate would relate to the performance of these operations and would examine ways to enhance their effectiveness. Lastly, the Security Council plays a prominent role in monitoring progress in the implementation of peace agreements and in ensuring compliance with these agreements. A relevant example concerns the peace process in Mali. In Resolution 2364 (2017), the Security Council urged the parties to the 2015 Agreement on Peace and Reconciliation in Mali ‘to prioritize without further delay the necessary steps to advance the implementation of the […] provisions of the Agreement’, referring specifically to provisions on the organization of elections and security sector reform.74 In the same resolution, the Council furthermore expressed ‘its readiness to consider targeted sanctions against those who take actions to obstruct or threaten the implementation of the Agreement’.75 In Resolution 2374 (2017) the Council indeed proceeded to the imposition of travel bans against individuals and of asset freezes against individuals and entities that have engaged ‘in hostilities in violation of the Agreement’ or that have engaged in or are complicit to ‘[a]ctions taken that obstruct, or that obstruct by prolonged delay, or that threaten the implementation of the Agreement’.76 The Security Council regularly uses sanctions as a tool to ensure compliance with peace agreements.77 These practices raise a number 72 73

74 75 76 77

See Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front, 7 July 1999, Article XIV. See Comprehensive Peace Agreement between the Government of Liberia and the Liberians United for Reconciliation and Democracy (LURD) and the Movement for Democracy in Liberia (MODEL) and Political Parties, Accra, 18 August 2003. Article IV of this Agreement states, ‘The GOL, the LURD, the MODEL and the Political Parties agree on the need for the deployment of an International Stabilization Force (ISF) in Liberia. Accordingly, the Parties hereby request the United Nations in collaboration with ECOWAS, the AU and the ICGL to facilitate, constitute, and deploy a United Nations Chapter VII force in the Republic of Liberia to support the transitional government and to assist in the implementation of this Agreement’. See further Final Agreement for Ending the Conflict and Building a Stable and Lasting Peace for Colombia, 7 November 2016. Section 6.3.3. of the Agreement includes a request by the parties ‘from the United Nations, through the General Assembly, [to establish] a political mission with the mandate to verify the reintegration of FARC-EP personnel and the implementation of personal and collective security and protection measures’. See UNSC Res. 2364 (2017), para. 2. Ibid., para. 4. See UNSC Res. 2374 (2017), para. 8. Biersteker argues that ‘[e]nforcing peace agreements is a very common objective for UN targeted sanctions, present in all but 3 of the 14 armed conflict country sanction regimes’. See T. Biersteker, ‘UN sanctions and peace negotiations: possibilities for complementa-

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of fundamental questions, including questions relating to enhancing the effectiveness of sanctions and, more generally, the limits to the Security Council’s competences, especially in relation to the principle of sovereignty. There are therefore very good reasons for the Security Council to reflect on its practice with respect to peace agreements. The format of a thematic debate would allow for such broader reflection with the aim of streamlining future Security Council action in specific country configurations. 5

Conclusion

The objective of this chapter was to explore the format of thematic debates as a means for elected members to impact the Security Council’s future work in country-specific configurations, thereby providing a counter-balance for the P5’s dominant position in the Council’s daily work. Related to this objective is the underlying question which is at the core of this book, namely whether elected members should be considered key players or lame ducks. The analysis of the functions of thematic debates in this chapter shows that elected members, even though they are not key players, do have an important role to play in building a normative framework for Security Council action. Thematic debates can be a useful tool for this purpose, precisely because they allow the Council to reflect on issues that permeate its practice across countryspecific configurations. These debates can be used to raise awareness within the Council of themes that are relevant for its broader practice, but which have not received express attention, and thereby to ensure that the Council integrates the respective theme in a systematic way in its practice. The Protection of Civilians agenda serves as an excellent example. The debate organized by Canada on this theme has had a profound impact on the approach of the Council in its country-specific work. By prioritizing human security, the debate has contributed greatly to a shift in the mindset of the Council. The efforts of other members in sustaining the Council’s attention and in consolidating its approach, both through the organization of follow-up debates and by pushing for the implementation of the thematic agenda in country-specific meetings and resolutions, has furthermore been essential for ensuring a lasting impact. This also demonstrates that elected members have an important role to play rity’, (2015) Oslo Forum Papers No. 004, at 10. Other examples include Angola (UNSC Res. 864 (1993) imposed weapons and petroleum embargos) and Côte d’Ivoire (UNSC Res. 1572 (2004) imposed an arms embargo as well as a travel ban and an assets freeze on designated individuals and entities).

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in sustaining the Council’s attention on particular themes. New elected members should therefore take stock of the work of their predecessors. Thematic debates can also be useful in allowing the Council to take a step back to consolidate its existing practice in country-specific configurations. The debate on natural resources and armed conflict provides a relevant example. The debate organized by Belgium was instrumental in transforming the Council’s ad hoc approach to more concerted practice. It is in this spirit that the current chapter proposes to include peace agreements in the thematic agenda of the Security Council. The Council has a rich practice in engaging with peace agreements, but this practice does not seem to be founded on systematic policy considerations. A thematic debate on the Council’s role in the design and implementation of peace agreements would allow the Council to reflect on its position as peace broker and to streamline its policy in this respect. In an era in which numerous peace agreements break down, a concerted approach by the Security Council is much needed. In conclusion, thematic debates can be an effective means for elected members to have a lasting impact on the work of the Council, if used wisely. Elected members are therefore certainly not lame ducks. To the contrary, they have the capacity to dovetail the work of the Council.

Chapter 14

Managing the Ebb and Flow of Sanctions Reform: An Important Role for Non-Permanent Members Jeremy Farrall and Christopher Michaelsen* There is perhaps no area of Security Council activity where the collective fingerprints of non-permanent members are more evident than that of sanctions reform. Non-permanent members have been at the vanguard of practically all major efforts to refine and improve the Council’s decision-making surrounding the application, administration, and implementation of sanctions under Article 41 of the UN Charter.1 Indeed, non-permanent member contributions have been particularly noticeable at critical moments when the reputation of sanctions, and consequently that of the Council itself, has been tarnished by their disproportionate impact on the lives of innocent civilians. This chapter examines non-permanent member contributions to the two most prominent instances of sanctions reform, namely the move to targeted or ‘smart’ sanctions, as well as the reform process of the 1267 sanctions regime and the development of the Ombudsperson mechanism. The chapter argues that while non-permanent members have demonstrably made ground-breaking past contributions to sanctions reform, there nevertheless remains a pressing need for further refinement and innovation in sanctions decision-making and implementation. Moreover, the promotion and institutionalization of sanctions reform requires not just the occasional engagement of non-permanent members, but rather their constant vigilance. Without such vigilance past advances will be threatened by future retrenchments. The chapter proceeds in five sections. Section one describes how UN sanctions operate, describing their legal basis and scope. Section two surveys non-permanent member contributions to sanctions administration. Section three discusses how non-permanent members pursued and achieved targeted sanctions reforms, and section four examines how non-permanent members *

1

We thank Mareike Riedel and Carolyn Evans for invaluable research assistance. This work was supported by the Australian Research Council [ARC DP150100300: ‘Leveraging power and influence on the UN Security Council: the role of elected members’]. The project examines the fundamental problem of how non-permanent members can influence Security Council decision-making and norm development. 1945 Charter of the United Nations, 1 UNTS XVI.

Schrijver and Blokker (eds.), Elected Members of the Security Council: Lame Ducks or Key Players? © 2020 Koninklijke Brill nv. isbn 978-90-04-42537-8. pp. 217-236. | DOI:10.1163/9789004425392_015

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advanced the 1267 sanctions regime and brought about the unprecedented innovation in sanctions administration represented by the creation of the Ombudsperson mechanism. Section five draws together the implications of the chapter’s analysis for the continuing engagement of non-permanent members in sanctions reform.  1

Introducing UN Sanctions

The legal basis for sanctions lies in Article 41 of the UN Charter, which empowers the UN Security Council to apply sanctions in order to maintain or restore international peace and security.2 The text of Article 41 provides that: The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.3 In the UN’s first 44 years ideological divisions between East and West constrained the Security Council’s capacity to employ its sanctions powers. Between the Council’s first meeting on 17 January 1946 and its 2933rd meeting on 6 August 1990, it was only able to apply two sanctions regimes. In 1966 it applied its first sanctions regime against the illegal white minority regime of Ian Smith in Southern Rhodesia.4 The sanctions measures initially targeted import from and export to Southern Rhodesia of specific commodities and products, including petroleum and leather goods.5 Less than two years later, the Coun2

Ibid., Chapter VII, in particular Arts. 39 and 41. For further discussion of the legal basis for UN sanctions, see the next section and, inter alia, T.D. Gill, ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers under Chapter VII of the Charter’, (1995) 26 Netherlands YB of Int’l Law 33; E. De Wet, ‘Human Rights Limitations to Economic Enforcement Measures Under Article 41 of the United Nations Charter and the Iraqi Sanctions Regime’, (2001) 14 LJIL 277; J.M. Farrall, United Nations Sanctions and the Rule of Law (2007), 58-78; and C. Michaelsen, ‘The Competence of the Security Council under the UN Charter to Adopt Sanctions Targeting Private Individuals’, in A. Byrnes, M. Hayashi and C. Michaelsen (eds.), International Law in the New Age of Globalization (2013), 11. 3 UN Charter, supra note 1, Chapter VII, Art. 41. 4 UN Doc. S/RES/232 (1966), para. 2. 5 Ibid.

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cil strengthened the sanctions considerably, turning the Southern Rhodesia regime into the first instance of comprehensive sanctions.6 The Council imposed its second sanctions regime, an arms embargo, against the apartheid regime in South Africa in 1977.7 Sanctions activity mushroomed after the Cold War. In August 1990, at its 2933rd meeting, the Security Council adopted Resolution 661 (1990), applying a mix of comprehensive and financial sanctions against Iraq.8 Since then, as the table below illustrates, the Council has imposed more than thirty additional sanctions regimes: Table of UN sanctions regimes applied by the UN Security Council9

Sanctions regime

Created by SC Res.

Terminated

1 2 3 4

232 Southern Rhodesia 418 South Africa 661/1518 Iraq 713 (Former Yugoslavia)

232 (16 Dec 1966) 418 (4 Nov 1977) 661 (6 Aug 1991) 713 (25 Sept 1991)

5 6 7 8 9 10 11

733 Somalia 748 Libya 757 FRY (Serbia) 788 Liberia 820 Bosnian Serbs 841 Haiti 864 UNITA (Angolan rebels) 918 Rwanda 1054 Sudan 1132 Sierra Leone 1160 FRY (Kosovo) 1267 Afghanistan/ Taliban/AQ

733 (23 Jan 1992) 748 (31 Mar 1992) 757 (30 May 1992) 788 (19 Nov 1992) 820 (17 Apr 1993) 841 (15 June 1993) 864 (15 Sept 1993)

SC Res. 460 (21 Dec 1979) SC Res. 919 (25 May 1994) Continuing Note verbale: SCA/96(4) (18 June 1996) Continuing SC Res. 1506 (12 Sept 2003) SC Res. 1074 (1 Oct 1996) SC Res. 1343 (7 Mar 2001) SC Res. 1074 (1 Oct 1996) SC Res. 948 (15 Oct 1994) SC Res. 1448 (9 Dec 2002)

12 13 14 15 16

6 7 8 9

918 (17 May 1994) 1054 (26 Apr 1996) 1132 (8 Oct 1997) 1160 (31 Mar 1998) 1267 (15 Oct 1999)

SC Res. 1823 (10 July 2008) SC Res. 1372 (28 Sept 2001) SC Res. 1940 (29 Sept 2010) SC Res. 1367 (10 Sept 2001) SC Res. 1988 (17 Jun 2011) & 1989 (17 Jun 2011)

UN Doc. S/RES/253 (1968), paras. 3-6. UN Doc. S/RES/418 (1977), paras. 2, 4. UN Doc. S/RES/661 (1990), paras. 3-4. This table is an updated version of the one originally published in Farrall, supra note 2, at 468-9.

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Table of UN sanctions regimes applied by the UN Security Council (cont.)

17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34

Sanctions regime

Created by SC Res.

Terminated

1298 Ethiopia and Eritrea 1343 Liberia 1493 DRC 1521 Liberia 1556 Sudan 1572 Cote d’Ivoire 1636 Hariri Suspects 1718 North Korea 1737 Iran 1907 Eritrea 1970 Libya 1988 Taliban 1989/2253 Al Qaida & ISIL (Daesh) 2048 Guinea-Bissau 2127 Central African Republic 2140 Yemen 2206 South Sudan 2374 Mali

1298 (17 May 2000) 1343 (7 Mar 2001) 1493 (28 July 2003) 1521 (22 Dec 2003) 1556 (30 July 2004) 1572 (15 Nov 2004) 1636 (31 Oct 2005) 1718 (14 Oct 2006) 1737 (27 Dec 2006) 1907 (23 Dec 2009) 1970 (26 Feb 2011) 1988 (17 Jun 2011) 1989 (17 Jun 2011)

S/PRST/2001/14 (15 May 2001) SC Res. 1521 (22 Dec 2003) Continuing SC Res. 2288 (25 May 2016) Continuing SC Res. 2283 (28 Apr 2016) Continuing Continuing SC Res. 2231 (20 Jul 2015) Continuing Continuing Continuing Continuing

2048 (18 May 2012) 2127 (05 Dec 2013)

Continuing Continuing

2140 (26 Feb 2014) 2206 (3 Mar 2015) 2374 (5 Sept 2017)

Continuing Continuing Continuing

The scope of UN sanctions regimes has varied widely. The Security Council’s Article 41 measures have ranged from comprehensive sanctions, which aim to stop the flow to and from a target of practically all products and commodities,10 to more focused measures prohibiting trade in particular items, such as arms, timber, or diamonds.11 Some sanctions measures have circumscribed particular activities understood to benefit a target, such as diplomatic, sporting, and cultural relations, as well as travel.12 They have also targeted particular actors 10 11 12

Comprehensive sanctions were applied as part of the 232 Rhodesia, 661 Iraq, 757 Federal Republic of Yugoslavia (Serbia-Montenegro) (FRYSM), 820 Bosnian Serb and 841 Haiti sanctions regimes. For detailed discussion of the forms sanctions can take, see Farrall, supra note 2, at 106-31. Diplomatic sanctions have been applied as part of the 748 Libya and 1054 Sudan sanctions regimes. Sporting and cultural relations were prohibited as part of the 757 Federal Repub-

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who pose a threat to peace and security, including rebel groups, terrorist organizations, or individuals who have engaged in or facilitated atrocity crimes.13 The UN Charter does not provide detailed guidance on how sanctions should be implemented or administered. While the Security Council’s sanctions decisions are binding on all UN member states under Article 25, the Council relies on member states to act in good faith on their legal obligation to implement UN sanctions within their domestic jurisdictions. In terms of administration, Article 29 of the Charter empowers the Council to establish ‘such subsidiary organs as it deems necessary for the performance of its functions’.14 Rule 28 of the Council’s Provisional Rules of Procedure (PRoP) further provides that ‘the Security Council may appoint a commission or committee or rapporteur for a specified question’.15 The Council has acted under both Article 29 and Rule 28 to create a range of subsidiary actors to administer and monitor the implementation of sanctions.16 The most common sanctions administrative bodies are sanctions committees and expert monitoring bodies. 2

Non-Permanent Contributions to Improved Sanctions Administration

Non-permanent members have made a range of contributions to the evolution of the sanctions administration by chairing the Security Council’s sanctions committees. The chairs and vice-chairs of all existing sanctions committees are announced at the beginning of each year, and it has become the convention to fill these positions exclusively from the ranks of non-permanent members.17 As chairs of sanctions committees, non-permanent members can in-

13

14 15 16 17

lic of Yugoslavia (Serbia-Montenegro) regime. Travel sanctions or travel bans have been applied as part of the 232 Southern Rhodesia, 661 Iraq, 748 Libya, 841 Haiti, 864 UNITA, 1054 Sudan, 1132 Sierra Leone, 1267 Taliban and Al Qaeda, 1343 Liberia, 1493 DRC, 1572 Côte d’Ivoire, 1636 Hariri, 1718 North Korea, and 1737 Iran sanctions regimes. Rebel groups have been targeted in the Bosnian Serb, UNITA, Sierra Leone, and DRC sanctions regimes. The Taliban and Al Qaeda sanctions regime targets terrorist organizations. For further discussion of sanctions targeting individuals and organisations, see infra section 3. UN Charter, supra note 1, Art. 29. Provisional Rules of Procedure of the Security Council, UN Doc. S/96/Rev.7 (1982) (PRoP), Rule 28. While the rules are technically ‘provisional’, they have not been amended for more than three decades and they are treated by UN member states as authoritative. For a more detailed discussion of the administration and monitoring of UN sanctions, see Farrall, supra note 2, at 146-82. Ibid., at 148.

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troduce procedural improvements to the way their committees do business. Perhaps the most striking example of this was Canadian Ambassador Robert Fowler, who chaired the 864 Committee on UNITA sanctions during Canada’s 1999-2000 membership. Fowler is credited for introducing a number of pathbreaking innovations,18 which Joanna Weschler has described as ushering in a ‘sea-change’ in the quality of the work of the sanctions committees.19 One of Fowler’s innovations was creating the first ever panel of experts and monitoring mechanism—on the UNITA sanctions.20 He was also the first sanctions committee chair to go on mission to understand the challenges to sanctions implementation in the field.21 He also introduced greater professionalism into the work of sanctions committees by preparing well-written, analytical committee reports,22 and delivered the first public briefing by a sanctions committee chair on the work of a committee.23 The direct involvement of non-permanent members in the administration of sanctions committees has emboldened and empowered them to play a prominent role in support of broader sanctions reform efforts. Indeed, nonpermanent members have driven a range of sanctions reforms that have improved the way that sanctions regimes are designed, monitored, and administered. Examples include: the pursuit of a more professional approach to the articulation and administration of exemptions from sanctions, including on humanitarian grounds;24 the ‘conflict diamonds’ initiative, which sought to end the illicit diamond trade that had fuelled conflict in diamond-rich countries in Africa;25 and the High-Level Review on Sanctions (HLRS), which was co-sponsored by Australia, Finland, Germany, Greece, and Sweden.26 In the next two sections, we focus on what we consider to be the most prominent non-permanent member contributions to the two most prominent exam18 19

For details, see ibid., at 334-5. J. Weschler, ‘The Evolution of Security Council Innovations in Sanctions’, (2010) 65 International Journal 31, at 39. 20 See Farrall, supra note 2, at 340-5. 21 Ibid. 22 Ibid. 23 Weschler, supra note 19, at 39. 24 See Farrall, supra note 2, at 141-2. 25 Diamonds were first targeted in 1998 as part of the UNITA sanctions regime, UN Doc. S/RES/1173 (1998), para. 12(b). They have also been applied in a range of other regimes, including the 1132 Sierra Leone, 1343 Liberia, 1521 Liberia, and 1572 Côte d’Ivoire regimes. 26 Both Australia and Sweden used recent non-permanent memberships (Australia in 201314 and Sweden in 2017-18) to promote the HLRS. For the final products of the HLRS, see Compendium of the High-level Review of United Nations Sanctions, UN Doc. S/2015/432 (2015).

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ples of sanctions reform. In section three, we trace the move away from comprehensive sanctions to the embrace of more targeted or ‘smart’ sanctions.27 In section four, we examine the reform efforts by non-permanent members to address due process deficits in the implementation of the 1267 sanctions regime. 3

The Move to Smart Sanctions

Reports that UN sanctions caused the deaths of more than half a million children in Iraq during the 1990s earned UN sanctions a notorious reputation as a blunt tool that harmed civilians more than they constrained rogue leaders.28 Some critics went so far as to label sanctions ‘the UN’s weapon of mass destruction’,29 ‘a genocidal tool’,30 and ‘modern siege warfare’.31 These concerns about the civilian impact of comprehensive sanctions prompted a shift in sanctions policy away from that type of blunt sanctions and towards sharper, smarter, more targeted sanctions.32 This new generation of sanctions regimes tends to apply one or more of a suite of ‘smart’ or ‘targeted’ sanctions measures, such as an asset freeze, a travel ban, or an arms embargo against those individuals or organizations deemed to pose a threat to the peace. The movement to targeted sanctions was galvanized by a series of intergovernmental meetings in the late 1990s and early 2000s, which sought to professionalize the language of UN sanctions policy, encouraging the Council to use standardized terms and approaches to framing the legal obligations arising from sanctions.

27 28 29 30 31 32

See D. Cortright and G. A. Lopez (eds.), Smart Sanctions: Targeting Economic Statecraft (2002). See R. Normand, ‘Iraqi Sanctions, Human Rights and Humanitarian Law’, (1996) 200 Middle East Report 40. D. Halliday, ‘Iraq and the UN’s Weapon of Mass Destruction’, (1999) 98 Current History 65; J. Mueller and K. Mueller, ‘Sanctions of Mass Destruction’, (1999) 78 Foreign Affairs 43. G. Simons, Imposing Economic Sanctions: Legal Remedy or Genocidal Tool? (1999); G. E. Bisharat, ‘Sanctions as Genocide’, (2001) 11 Transnational Law and Contemporary Problems 379. J. Gordon, ‘Sanctions as Siege Warfare’, The Nation, 22 March 1999, www.thenation.com/ article/sanctions-siege-warfare/. For example, the UN Secretary-General observed in his Supplement to An Agenda for Peace: ‘Sanctions, as is generally recognized, are a blunt instrument.’ See Supplement to An Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations, UN Doc. A/50/60-S/1995/1 (1995), para. 70. See also criticism of the Iraqi sanctions regime: Normand, supra note 28.

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These meetings came to be known as the ‘Interlaken’, ‘Bonn-Berlin’, and ‘Stockholm’ processes. These processes were of course driven by the host states, namely Switzerland, Germany, and Sweden. Both Germany and Sweden were non-permanent members during the period in which the move to smart sanctions gathered momentum—Germany was on the Council in 1995-96 and Sweden in 1997-98. By contrast, Switzerland’s interest in sanctions reform was not connected with a pending non-permanent term on the Council. Indeed, at that time Switzerland was not yet a UN member state, as it only joined the UN in 2002. The Interlaken process sought to hone the tool of targeted financial sanctions.33 The Bonn-Berlin process focused upon the design and implementation of arms embargoes and travel and aviation sanctions.34 The Stockholm process focused upon the question of making targeted sanctions effective.35 Largely as a result of those processes, the Council began to employ a more consistent approach to establishing the scope of similar types of sanctions. It thus applied similar language in articulating the scope of its sanctions regimes incorporating arms embargoes and financial, travel and aviation sanctions. The main contribution of the smart sanctions movement was of course to prompt the move away from comprehensive sanctions and toward the use of the sharper, more focused sanctions tools, such as arms embargoes, asset freezes, and travel bans. But the push to improve sanctions policy also emboldened non-permanent members to work with open-minded permanent members to introduce a range of constructive sanctions innovations. One example was the use of time-delays prior to the entry into force of sanctions obligations, thus giving the prospective targets an opportunity to change their behaviour and thus avoid the application of sanctions.36 A second was the use of expiry dates, also known as ‘sunset clauses’, upon which sanctions measures would lapse unless the Security Council were to decide to extend or reapply them.37 A third was the use of humanitarian impact assessments to predict the likely consequences of sanctions upon civilian populations, providing an opportunity for 33 34 35 36 37

Targeted Financial Sanctions: A Manual for Design and Implementation. Contributions from the Interlaken Process (Watson Institute for International Studies, 2001). Design and Implementation of Arms Embargo and Travel Sanctions and Aviation-related Sanctions: Results of the Bonn-Berlin Process (Bonn International Center for Conversion, 2001). Making Targeted Sanctions Effective: Guidelines for the Implementation of UN Policy Options. Results from the Stockholm Process on the Implementation of Targeted Sanctions (Uppsala University, 2003). See Farrall, supra note 2, at 139-40. Ibid., at 140.

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the Council to tweak its sanctions strategy to minimize the impact of sanctions on civilians and third states.38 4

Due Process Deficits and Reform of the 1267 Sanctions Regime

An illustrative case of non-permanent members contributing significantly to sanctions reform is the case of the 1267 sanctions regime.39 This sanctions regime was originally established in 1999, and required all states to freeze the assets of, prevent the entry into or transit through their territories by, and prevent the direct or indirect supply, sale, and transfer of arms and military equipment to any individual or entity associated with Al-Qaida, Osama bin Laden and/or the Taliban as designated by the Security Council’s 1267 Committee. The committee’s mechanism for the listing and delisting of targeted individuals and entities was not without controversy. As Richard Barrett, a former coordinator of the 1267 Committee’s Al-Qaida and Taliban Monitoring Team put it, the controversies mainly stemmed from the fact that the 1267 regime, although preventive by design, was punitive by impact.40 Yet, despite its punitive character it did not provide any meaningful due process protections for listed individuals and entities.41 Over the years, several reform innovations—the development of an Ombudsperson mechanism in particular—have sought to address these shortcomings. Indeed, sustained political engagement by several non-permanent members, assisted and re-enforced by a group of select member states operating 38 39

40 41

Ibid., at 143-4. This sanctions regime is now referred to as sanctions adopted pursuant to UN Doc. S/ RES/1267 (1999), 1989 (2011) and 2253 (2015) concerning ISIL (Da’esh), Al-Qaida, and associated individuals, groups, undertakings and entities and remains in operation to this date. On 20 July 2017, the Security Council unanimously adopted Res. 2368 (2017) reaffirming the assets freeze, travel ban and arms embargo affecting all individuals and entities on the ISIL (Da’esh) & Al-Qaida Sanctions List. The Resolution also extended the mandates of the Monitoring Team and the Office of the Ombudsperson to December 2021. Press Conference on Security Council Al-Qaida and Taliban Sanctions Committee, New York, 12 February 2009, www.un.org/press/en/2009/090212_Barrett.doc.htm. The question of due process has attracted extensive academic commentary. See, inter alia, A. Bianchi, ‘Security Council’s Anti-Terror Resolutions and their Implementation by Member States’, (2006) 4 Journal of International Criminal Justice 1044; C. Michaelsen, ‘Kadi and Al Barakaat v Council of the EU – The Incompatibility of the UN Security Council’s 1267 Sanctions Regime with European Due Process Guarantees’, (2009) 10 Melbourne Journal of International Law 329; D. Hovell, ‘Due process in the United Nations’, (2016) 110 American Journal of International Law 9; A. Tzanakopoulos, ‘Theorizing or Negotiating the Law? A Response to Devika Hovell’, (2016) 110 AJIL Unbound 3.

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‘around’ the Council, has prompted a number of significant reform initiatives. This engagement took place on three different yet related levels. First, several non-permanent members made use of formal mechanisms and procedures while either serving as elected members on the Council or by participating in Council meetings as intervenors. Second, non-permanent members employed informal mechanisms and coalition-building to pursue a reform agenda and achieve sustainable progress. Third, non-permanent members engaged with, and sought the input and active co-operation of, epistemic communities and outside experts, including from academia, NGOs, the UN Secretariat, and international legal practitioners. This not only strengthened the case that a substantial shortcoming existed within the 1267 sanctions regime, but also helped the UN member states involved do the difficult technical work of crafting reform proposals to address that shortcoming. This part of the chapter will now trace these different forms of non-permanent member engagement in more detail. 4.1 The Process of the Creation of the Office of the Ombudsperson Due process concerns about the 1267 mechanism to list and delist targeted individuals and entities emerged in the early 2000s following a significant increase in listings in the aftermath of the 9/11 attacks in the US. By 2005, the issue had gained enough traction to be recognized in the World Summit Outcome Document which called on the Security Council ‘to ensure that fair and clear procedures exist for placing individuals and entities on sanctions lists and for removing them, as well as for granting humanitarian exemptions’.42 When the Council was briefed by the subsidiary bodies a few days after the adoption of the World Summit Outcome Document, the issue of the listing and delisting procedure was taken up by a number of non-permanent members as well as member states intervening in accordance with Rule 37 of the Council’s PRoP.43 Brazil, for instance, stated that ‘mechanisms for listing and delisting leave significant room for improvement in transparency, effectiveness and fairness’,44 and Liechtenstein pointed to the World Summit Outcome as mandating ‘the 42

2005 World Summit Outcome 60th Session, Agenda items 46 and 120, UN Doc. A/60/1 (2005), para. 109. 43 PRoP, supra note 15, Rule 37 (providing that: ‘Any Member of the United Nations which is not a member of the Security Council may be invited, as the result of a decision of the Security Council, to participate, without vote, in the discussion of any question brought before the Security Council when the Security Council considers that the interests of that Member are specially affected, or when a Member brings a matter to the attention of the Security Council in accordance with Article 35(1) of the Charter’). 44 UN Doc. S/PV/5293 (2005), at 10.

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Council to ensure that fair and clear procedures exist for placing individuals and entities on sanctions lists and removing them’.45 From late 2005 to late 2009, reform of the 1267 regime’s listing/delisting procedure was subsequently advocated on a near-continuous basis by a growing number of non-permanent members, in and out of the Council chamber. For instance, when the Council was briefed by the subsidiary committees in February 2006,46 the representative of Austria (intervening in accordance with Rule 37 of the PRoP) spoke on behalf of the EU to ‘stress the call made at the 2005 world summit to ensure that fair and clear procedures exist for placing individuals and entities on sanctions lists and for removing them’.47 Similarly, in May 2006,48 non-permanent members Greece,49 Qatar,50 and Japan,51 all pressed for further consideration of procedural fairness and/or ‘fair and clear procedures’. Momentum accelerated in June 2006 when Denmark, as Council President, scheduled a thematic debate on the rule of law. Denmark’s Foreign Minister, Per Stig Moeller, chaired the debate and Rosalyn Higgins, President of the International Court of Justice, spoke in accordance with Rule 39 of the PRoP.52 These interventions added political and legal weight to the debate. Moreover, all ten non-permanent members stressed the need for ‘fair and clear procedures’ in sanctions regimes. In addition, Denmark circulated a ‘non-paper’ to ‘help guide the discussion’, which included as one of three focal issues the enhanced efficiency and credibility of UN sanctions regimes.53 This initiative followed correspondence from non-Council members Germany, Sweden, and Switzerland, announcing a jointly commissioned report on how to strengthen targeted sanctions regimes.54 Prepared by the Watson Institute Targeted Sanctions Project at Brown University, the report explored review mechanism op-

45 Ibid., 31. 46 UN Doc. S/PV/5375 (2006). 47 See ibid., at 26. 48 UN Doc. S/PV/5446 (2006). 49 Ibid., at 10. 50 Ibid., at 14. 51 Ibid., at 16. 52 PRoP, supra note 15, Rule 39. 53 Letter dated 7 June 2006 from the Permanent Representative of Denmark to the United Nations addressed to the Secretary General, UN Doc. S/2006/367 (2006). 54 Identical letters dated 19 May 2006 from the Permanent Representatives of Germany, Sweden and Switzerland to the United Nations addressed to the President of the General Assembly and the President of the Security Council, UN Doc. S/2006/331 (2006).

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tions, including that of an ombudsman, to ‘address shortcomings’ of existing sanctions committee procedures.55 In December 2006, the Security Council unanimously adopted Resolution 1730 (2006), in which it created a ‘focal point’ for delisting.56 Following the vote, Greece called on the Council to ‘continue to improve [its] delisting procedures, particularly in the direction of establishing a review mechanism’ along the lines of the useful suggestions made recently by member states such as Denmark, and other relevant processes.57 The Danish term of office on the Council ended at the end of 2006 (as did that of Greece), but Denmark remained engaged and visible in initiatives related to improving the sanctions regimes. For example, again in the context of briefings by the subsidiary bodies, Liechtenstein (under Rule 37 of the PRoP) noted that: Many Member States still have concerns regarding the requirement of “fair and clear procedures”, … in the Council’s use of targeted sanctions. In order to facilitate a constructive discussion on that issue, we organized a round table on de-listing on 8 November 2007. The event was sponsored by the missions of Denmark, Sweden and Switzerland and was open to all States Members of the United Nations and invited representatives of the Secretariat, non-governmental organizations and academia. At that meeting, participants exchanged views on a discussion paper based on the research of Professor Michael Bothe of the University of Frankfurt regarding the establishment of a review panel to deal with petitions for de-listing.58 Then in June 2008, Denmark, Germany, Liechtenstein, the Netherlands, Sweden, and Switzerland wrote to the Presidents of the Security Council and the General Assembly, urging further attention to delisting procedures and sending a discussion paper on the idea of establishing an expert review panel to 55

56 57 58

T.J. Biersteker and S.E Eckert, ‘Strengthening Targeted Sanctions through Fair and Clear Procedures’, Watson Institute for International Studies, 2006. The Watson report itself built on a report by Bardo Fassbender, which had been commissioned by the UN Secretariat’s Office of Legal Affairs and delivered in March 2006. See B. Fassbender, ‘Targeted Sanctions and Due Process: The responsibility of the UN Security Council to ensure that fair and clear procedures are made available to individuals and entities targeted with sanctions under Chapter VII of the UN Charter’, Study Commissioned by the United Nations Office of Legal Affairs, 20 March 2006, www.un.org/law/counsel/Fassbender_study.pdf. UN Doc. S/RES/1730 (2006). The draft resolution was co-sponsored by Argentina, Denmark, France, Greece, Japan, Peru, Russia, Slovakia, the UK, and the US: UN Doc. S/2006/996 (2006). UN Doc. S/PV/5599 (2006), at 3. UN Doc. S/PV/5779 (2007), 28.

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assist committees with delisting requests.59 The letter pointed out that representatives of Denmark, Liechtenstein, Sweden, and Switzerland had earlier had the opportunity to discuss elements of the paper with the 1267 Committee. While the letter was sent on 23 June, in advance of the Council meeting held on 30 June regarding ‘Threats to international peace and security caused by terrorist acts’, it does not appear to have been circulated until 2 July. On 30 June 2008, the Council adopted Resolution 1822 unanimously,60 which further promoted the ‘focal point’ created earlier in relation to delisting. Costa Rica made the only substantive comment, concluding that ‘although the establishment of a focal point under resolution 1730 (2006) was an important achievement, it is also necessary to establish a review mechanism’.61 It called on the Council to ‘seriously consider the proposal made by Denmark, Germany, Liechtenstein, the Netherlands, Sweden and Switzerland aimed at agreeing mechanisms to fully protect the basic rights of listed individuals’.62 In August 2008, Belgium circulated a concept note during its Council Presidency to steer a discussion on working methods towards transparency issues.63 The need to ensure fairness, clarity, and independent review was also emphasized by Iceland, intervening (under Rule 37 PRoP) on behalf of Denmark, Finland, Iceland, and Norway.64 Later that year, in response to a 1267 Committee briefing, Switzerland (under Rule 37 PRoP) noted with disapproval the lack of progress on due process reforms, recalling that ‘Switzerland and Liechtenstein, together with Denmark, Germany, the Netherlands and Sweden, proposed the establishment of an expert group appointed by the Council to assist the sanctions committees in the consideration of delisting requests’ and expressing ‘regret that resolution 1822 (2008) did not reflect any of the ideas put forward in that discussion paper.’65 A month later, Liechtenstein sponsored a conference at the Washington College of Law of the American University in Washington D.C. to facilitate dialogue on UN counter-terrorism sanctions between practitioners, diplomats, and academics.66 59

Identical letters dated 23 June 2008 from the Permanent Representative of Switzerland to the United Nations addressed to the President of the General Assembly and the President of the Security Council, UN Doc. S/2008/428 (2008). 60 UN Doc. S/RES/1822 (2008). 61 UN Doc. S/PV/5928 (2008), 3. 62 Ibid. 63 UN Doc. S/2008/528 (2008). 64 UN Doc. S/PV/5968 (2008), 28. 65 UN Doc. S/PV/6015 (2008), 25. 66 Conference on ‘Countering Terrorism through International and Domestic Targeted Sanctions: A Rule of Law Perspective’, American University, Washington College of Law, Washington DC, US, 15 September 2008.

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The growing discontent among non-permanent members coincided with several judicial developments at both national and international levels. Legal challenges against Security Council sanctions-related listings had been presented to the national courts of Belgium, Italy, Switzerland, the Netherlands, Pakistan, Turkey, the UK, Germany, Canada and the US. Politically most important, perhaps, several cases had also been brought before the Courts of the European Communities in Luxemburg. In the cases of Kadi, Yusuf and Al Barakaat, Ayadi and Hassan, the European Court of First Instance, in 2005, upheld the legality of the EU regulations implementing the 1267 sanctions regime and found that it generally lacked the power to judicially review resolutions by the Security Council.67 However, these findings were then rejected in an opinion issued in January 2008 by one of the eight Advocates General assisting the Court.68 Subsequently, on 3 September 2008, the European Court of Justice, in the appeal cases of Kadi and Al Barakaat, found that the Courts of the European Communities had jurisdiction to review the implementation of Security Council resolutions, and further, that the contested EC regulation implementing the 1267 sanctions regime violated fundamental rights as recognized by Community law.69 A month later, on 22 October 2008, the UN Human Rights Committee, in Sayadi and Vinck v Belgium found Belgium’s implementation of the 1267 sanctions regime in violation of Article 12 of the International Covenant on Civil and Political Rights.70 These judicial developments had a direct impact on deliberations in the Council chamber and increased the political pressure to adopt meaningful reform. When the Council was briefed by the subsidiary committees in May 2009, for instance, Switzerland, intervening under Rule 37 of the PRoP, pointed to the legal dilemma faced by UN member states whose courts questioned the 67

68 69 70

Case R-306/01, Yusuf and Al Barakaat v Council of the EU [2005] ECR II-3533; Case T-315/01, Kadi v Council of the EU, [2005] ECR II-3649; Case T-253/02, Ayadi v Council of the EU, [2006] ECR II-2139; Case T-49/04, Hassan v Council of the EU, [2006] ECR II-52. For an in-depth analysis of the CFI decisions, see, for example, G. Porretto, ‘The European Union, Counter-Terrorism Sanctions against Individuals and Human Rights Protection’, in M. Gani and P. Mathew (eds.), Fresh Perspectives on the ‘War on Terror’ (2008), 235. Opinion of Advocate General Poiares Maduro of 16 January 2008, Case C-402/05 P, Kadi v Council and Commission and Opinion of 23 January 2008; Case C-415/05 P, Al Barakaat International Foundation v Council and Commission, [2008] ECR I-06351 . Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat v Council of the European Union and Commission of the European Communities, [2008] ECR I-06351. Sayadi and Vinck v Belgium, CCPR/C/94/D/1472/2006. For critique see M. Milanovic, ‘Sayadi: The Human Rights Committee’s Kadi’, EJIL: Talk! (29 January 2009), www.ejiltalk.org/ sayadi-the-human-rights-committee’s-kadi-or-a-pretty-poor-excuse-for-one…/.

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legality of domestic measures to implement 1267 sanctions.71 At the next briefing, in November 2009, the Swiss representative reiterated these concerns. Referring to a decision by the Swiss Parliament requesting the Swiss Government to cease implementing sanctions against individuals included on the 1267 list in cases where certain criteria had not been considered, she noted that Switzerland was ‘increasingly concerned by the issue of reconciling United Nations targeted sanctions with human rights principles.’72 She then expressly linked due process concerns to the question of effective implementation of Security Council sanctions by stating that: Member States’ Governments find themselves in a serious dilemma when parliaments or courts challenge the legality of domestic measures that implement United Nations targeted sanctions. Member States today may risk having to choose between the option of satisfying obligations imposed by the Charter, or acting in conformity with decisions of their parliaments or courts upholding human rights. The Council could still remedy this problem if it introduced the necessary changes. If it does not, there is a risk of uneven application of United Nations sanctions, which would undermine the credibility and efficiency of the entire system.73 At the same Council briefing, the Austrian ambassador—then both President of the Council and Chair of the 1267 Committee—reported on his visit to the EU institutions in Brussels and the ‘excellent opportunity to discuss the challenges that the implementation of the sanctions regime is currently facing in European Union member States, in particular following recent rulings of the European Court of Justice’.74 In his capacity as 1267 Chair, he called on the Council to take further steps towards ensuring fair and clear procedures as well as towards improving the working methods and thus strengthening the regime.75 At the same meeting, Costa Rica referred to a ‘working document’ it had developed with a group of like-minded states (Costa Rica, Germany, Denmark, Liechtenstein, the Netherlands, Sweden, Switzerland, Belgium, Finland and Norway) which contained a number of options to improve the due process of the 1267 regime. It concluded by urging the Council ‘to consider those op-

71 UN Doc. S/PV/6128 (2009), 27. 72 Ibid., at 27-8. 73 Ibid., at 28. 74 Ibid., at 11. 75 Ibid.

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tions, in particular with a view to the resolution that we are due to negotiate next month to renew the sanctions regime’. 76 A month later, on 17 December, the Council adopted Resolution 1904 unanimously and established the 1267 Ombudsperson. The Expansion of the Ombudsperson’s Mandate and the High-Level Review of UN Sanctions Following the establishment of the Ombudsperson, Austria led the Committee to conclude the first comprehensive review of the 1267 consolidated list. It then handed the chair of the Committee to incoming Council member Germany, which served on the Council in 2011 and 2012. Germany had been a member of the group of like-minded states and part of other initiatives to strengthen the 1267 regime since 2005. It played an active role in expanding the Ombudsperson’s mandate and further strengthening fair and clear procedures. In April 2011, the group of like-minded states—now joined by Austria and consisting of Belgium, Costa Rica, Denmark, Finland, Germany, Liechtenstein, the Netherlands, Norway, Sweden and Switzerland—sent a letter to the President of the Council outlining several reform proposals with a view to the adoption of the follow-up to Resolution 1904 (2009).77 The letter was also distributed as an annex to the written version of Costa Rica’s statement at the Council in May.78 It called on the Council to consider further reform in order to ‘render the work of the 1267 Committee more effective and legitimate and thus considerably strengthen it as a counter-terrorism instrument’.79 Stressing that such reform would also contribute to strengthening the rule of law within the UN, the proposals were structured into three sections, focusing on listing, delisting, and on the mandate Ombudsperson.80 At the Council meeting the proposals of the group of like-minded states were also supported by an informal group of states collaborating as the ‘Human Security Network’,81 which encouraged the Council ‘to consider the recommendations of the group of like-minded 4.2

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UN Doc. S/PV/6217 (2009), 15. Letter dated 6 April 2011 from the group of like-minded states to the President of the Security Council, www.news.admin.ch/NSBSubscriber/message/attachments/22759.pdf. 78 UN Doc. S/PV.6536 (2011), at 27-8. 79 Ibid. 80 Ibid. 81 The Human Security Network is an informal group of states that advocates a peoplecentred, holistic approach to security, which complements the more traditional understanding of national and international security. In April 2011, it consisted of Austria, Chile, Costa Rica, Greece, Ireland, Jordan, Mali, Norway, Slovenia, Thailand, South Africa as an observer, and Switzerland.

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States, also in view of the adoption of a follow up to resolution 1904 (2009) in June 2011’.82 A month later, on 17 June 2011, the Council adopted Resolution 1989 which was co-sponsored by France, Germany, the UK and the US and which extended the mandate and powers of the Ombudsperson considerably. While not all the proposals of the group of like-minded states were taken up by the resolution, the introduction of a three-phase process to be followed by the Ombudsperson represented significant further reform to strengthen due process principles. The three-phases were structured into an information gathering phase, an engagement and dialogue phase, and a Committee dialogue and decision phase. Importantly, in cases where the Ombudsperson recommends that the Committee consider delisting, the individual or entity is removed from the list within 60 days, unless the Committee decides, by consensus, that the individual or entity should remain subject to the sanction. On 7 November 2012, the group of like-minded states sent a letter to the Secretary-General and the President of the Security Council containing further suggestions on how to improve fair and clear procedures for a more effective UN sanctions system.83 The letter featured proposals on strengthening the Ombudsperson process as well as on increasing the transparency of the listing process and introducing time limits to all listings. Most importantly, perhaps, it also recommended improving due process in other sanctions committees. However, these proposals were not taken up by the Council when it adopted Resolution 2083 on 17 December 2012 extending the 1267/1989 sanctions regime, including the mandate of the Ombudsperson. Then, on 18 July 2013, the European Court of Justice handed down its decision in Kadi II.84 In spite of the significant reform steps that had been undertaken at the UN level, the Court neither acknowledged the existence of the Ombudsperson nor its reinforced powers adopted by Resolution 1989. Rather, it arguably attempted to export EU standards and demands of judicial review to UN sanctions and thereby largely ignored the special Security Council context as well as the differences between UN implemented sanctions and autonomous EU sanctions. Larissa van den Herik has argued that the Kadi II judgment and its non-negotiable commitment to high standards of judicial review might have had negative repercussions for further reform of the 1267 regime 82 83 84

Supra note 78, at 32. Identical letters dated 7 November 2012 from the Permanent Representative of Switzerland to the United Nations addressed to the Secretary-General and the President of the Security Council, UN Doc. A/67/557–S/2012/805 (2012). Case C-584/10 P, Commission and Others v Kadi [18 July 2013].

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as well as for broader attempts to foster accountability processes across all UN sanctions regimes.85 While empirically difficult to verify, it is clear that Court’s approach in Kadi II provided little incentive for Council members to engage in further reform. During its 2013-14 term, Australia, as successor of Germany in the chair of the 1267 Committee, nonetheless sought to push forward Council policy and practice on sanctions implementation.86 In May 2014, Australia, together with Finland, Germany, Greece, and Sweden launched the HLRS to consider ways of updating and strengthening the implementation of sanctions.87 The Review was conducted from May through to the end of 2014 by three working groups that examined respectively, UN integration and co-ordination; the relationship between UN sanctions and external institutions and instruments; and mitigating the humanitarian impact of UN sanctions, and emerging challenges. Australia then pursued and promoted a draft resolution on sanctions implementation, drawing heavily on the findings of HLRS, which it hoped the Council would adopt during a dedicated debate on sanctions that it proposed to hold as part of its November 2014 presidency. The draft resolution would have established a policy and co-ordination unit to identify sanctions best practices. It would also have mobilized experts to provide technical assistance on sanctions implementation to UN member states. Ultimately, however, while the debate went ahead, the draft resolution was not put to the vote during or after Australia’s presidency. Such a vote would have required the acquiescence of Russia, which at the time was itself the target of a range of non-UN sanctions regimes that had been imposed by the US, the EU and even Australia in response to the Crimean and Eastern Ukrainian crises. However, Russia firmly dug in its veto-threatening heels, demanding so many concessions to the original text that it would have been virtually unrecognizable. 5

Insights and implications

In this chapter we have discussed a number of significant contributions that non-permanent members have made to sanctions reform. Particularly note85 86 87

L. van den Herik, ‘Peripheral Hegemony in the Quest to Ensure Security Council Accountability for its Individualized UN Sanctions Regimes’, (2014) 19 Journal of Conflict & Security Law 444. See J. Farrall, and J. Prantl, ‘Leveraging diplomatic power and influence on the UN Security Council: the case of Australia’, (2016) 70 Australian Journal of International Affairs 601. Compendium of the High-level Review of United Nations Sanctions, UN Doc. S/2015/432 (2015).

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worthy are the move from blunt, comprehensive sanctions to ‘targeted’ or ‘smart’ sanctions, as well as the high watermark of sanctions reform, namely the creation and empowerment of the Office of the Ombudsperson as part of the 1267 sanctions regime. These considerable achievements might be described as the flow of sanctions reform. They demonstrate that non-permanent members can set and shape the reform agenda by strategically employing a range of formal and informal methods. The most obvious explanation for why non-permanent members have achieved these sanctions reform successes is that, as chairs of sanctions committees they have gained a deeper understanding of the challenges involved in sanctions administration and implementation. This understanding increases the capacity of non-permanent members not just to diagnose problems in sanctions practice, but also to propose and broker solutions. However, as we foreshadowed in our introduction, the argument we seek to advance in this chapter is not simply that non-permanent members have made meaningful contributions to sanctions reform. Above and beyond this incontrovertible point, we also caution that these gains are not indelible and should not be taken for granted. Indeed, the Security Council’s post-Cold War sanctions practice demonstrates that sanctions reform gains can be undermined by slippage. In other words, there is a constant danger that the flow of sanctions reform will be slowed, and perhaps even reversed, by destabilising ebbs. For example, while the move to smart sanctions was highly positive, and efforts continue to refine their application, a number of the best practice lessons that were identified as part of the smart sanctions wave have since fallen by the wayside. The practices of requiring humanitarian impact assessments and using sunset clauses are a case in point in that they are either rarely or no longer employed. Thus when these best practice strategies are used they tend to represent the exception rather than the rule. In relation to the Office of the 1267/1989 Ombudsperson, while the achievements have so far been enormous, the foundations and edifice of the Office remain shaky. Although common sense would suggest that the Ombudsperson model should be expanded to apply to all sanctions regimes, not only is this unlikely to happen anytime soon, but there is also a danger that the role of the Ombudsperson could be contracted or diminished. Indeed, at the conference that gave rise to this book, the outgoing Ombudsperson was concerned that, with just a couple of weeks to go in her mandate, no successor had yet been appointed and certain permanent members were seeking to dilute the powers and longevity of the Office. The example of the reform of the 1267/1989 sanctions regime is also illustrative for another reason. It demonstrates that context is crucial for the ebb and

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flow of sanctions reform. The terrorism-related dimension of the 1267 sanctions regime, as well as broader thematic debates on the rule of law, facilitated participation in Council debate by a range of non-permanent members based on Rule 37 of the PRoP. Internal reform advocacy was initially aided by external developments in judicial fora—particularly the EU courts—which generated pressure on the European members of the Council, including France and the UK, to take seriously the due process shortcomings of the 1267 sanctions regime. By 2014, on the other hand, the context was far less conducive. The rigid approach of the European Court of Justice in Kadi II in 2013 as well as friction in the Council, especially over the Crimean and Eastern Ukrainian crises, prevented further progress on sanctions implementation. In order to manage the inevitable ebbs in sanctions reform it is particularly important that non-permanent members do not rest on their laurels once sanctions reforms are achieved, no matter how significant they might be. In their engagement on sanctions reform, non-permanent members—on, off and ‘around’ the Council—should bear in mind that while introducing new initiatives is extremely worthwhile, it is perhaps even more important to consolidate and extend the gains of previous sanctions reform. The task of initiating and consolidating effective sanctions reform requires considerable commitment, vigilance and ingenuity on the part of non-permanent members. Such non-permanent member engagement is not only crucial for continued sanctions reform per se, but also essential for ensuring that sanctions remain both an effective and a legitimate tool for the Council in exercising its responsibility under Chapter VII of the UN Charter.

Chapter 15

The Office of the Ombudsperson and the Elected Members of the Security Council Kimberly Prost Regrettably the current context in multi-lateral fora, in particular the UN, is such that advancement of rule of law initiatives at the international level has become difficult, if not impossible. Even efforts to include or maintain reference to it in negotiated texts has become a significant challenge. Given this environment, the establishment and maintenance of the Office of the Ombudsperson for the Security Council Al-Qaida Sanctions Committee stands as a remarkable achievement. Much of what has been attained, and the sustained support which has been generated for the Office, has been due to efforts from, and through, the elected members of the Security Council. As such this initiative is an important example of what can be achieved through concerted efforts during a temporary term on the Security Council. 1

Office of the Ombudsperson

In December 2009 the Security Council adopted Resolution 1904 (2009),1 which renewed the existing regime of sanctions aimed at members of the Taliban and Al-Qaida originally established through Resolution 1267 (1999).2 However, unlike previous renewals of the measures, this resolution had an important new addition which was intended to respond to the criticism of the regime in terms of the absence of fair process protections for the listed individuals and entities. At the heart of the criticism was the fact that through Resolution 1267 and successor resolutions the Security Council established a regime whereby individuals and entities were made subject to sanction measures (asset freeze, travel ban, weapons prohibition) without any fair process protections. The measures would be imposed without notice or reasons being provided and, most significantly, with no recourse for the listed individual, no availability of independent review of the listing or an effective remedy. In sum, the sanction process 1 2

UN Doc. S/Res/1904 (2009). UN Doc. S/Res/1267 (1999).

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utilized by the Security Council was devoid of the fundamentals of fair process and in contravention of the rights of the listed individual or entity. As a result significant criticism had been levelled at the regime by states, academics, and civil society, culminating in an important statement by the UN member states in the 2005 World Summit outcome.3 Ultimately, courts began to intervene and that action finally compelled a response by the Security Council. In Resolution 1904 (2009) the Security Council decided that in considering delisting requests the Committee ‘shall be assisted by an Office of the Ombudsperson, responsible to carry out the procedure specified in Annex II of the resolution in an independent and impartial manner’. The Office was initially established for 18 months and has since been consistently renewed.4 2

The Process

The process detailed by the Security Council in Annex II of the resolution provided for listed individuals and entities to directly present a delisting request to the Ombudsperson. By practice these requests can be received in the language of choice of the petitioner and in any form which gives a record in writing, with email being the common vehicle. Once the request is determined to meet the requirement of responding to the reasons for listing, the Ombudsperson begins a three phase process by transmitting the request to the Committee and to the pertinent states, with the aim of gathering the relevant information in the case. According to the Annex this should include the state of nationality, the state of residence and the designating state, as well as any state believed to have information of relevance to the case. While not specified in the resolution both post holders considered that the Ombudsperson was free to also gather information independently by researching, reviewing literature and even conducting interviews in order to ensure that all the relevant information in the case was available. This phase lasts four months and can be extended for one additional two month period at the sole discretion of the Ombudsperson. Upon completion of the information gathering phase, the case proceeds to the dialogue phase, during which time the Ombudsperson engages with the petitioner and, as needed, with states. The engagement phase is used to transmit all the gathered information to the petitioner except for any confidential material, to ensure that the petitioner knows the case against him or her—a key component of 3 4

UN Doc. A/Res/60/1 (2005), para. 109. UN Doc. S/RES/1904 (2009).

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fair process. This interaction also allows the petitioner to submit a response to the case and information presented and to be heard ultimately by the decision maker—further requirements of fairness. Generally, the interaction will involve the Ombudsperson putting questions to the petitioner based on the gathered material but the petitioner can also advance submissions and material after reviewing the information which has been disclosed. In accordance with the Security Council exhortation,5 in most cases the Ombudsperson will meet with the petitioners to have a face to face discussion about the case. Also during this phase the Ombudsperson will take the information gathered from all sources, including the petitioner, subject to anything confidential, and include it in the Comprehensive Report. The report recounts the information and material gathered and contains an analysis and observations on the case by the Ombudsperson. By practice the Ombudsperson assesses the information to determine if it is sufficient to provide a reasonable and credible basis for the listing presently. While the standard of reasonable and credible basis is that devised by the first Ombudsperson which continues to be employed, the practice of a present time assessment, also established by the Ombudsperson, has now been reflected in the governing resolutions.6 Ultimately that report will be submitted to the Committee at the end of the dialogue phase which lasts for two months and can be extended once by the Ombudsperson for up to two months. The Comprehensive Report submitted will contain a recommendation on the petition. The submission of the report begins the decision phase of the process. The report will then be translated into all the UN languages and once that process is completed, the matter will be placed on the agenda for a Committee meeting in accordance with the prescribed 15 and 30 day deadlines.7 The Ombudsperson will appear to present the case to the Committee and a decision will subsequently be taken in accordance with the procedures set out in the Committee guidelines. In terms of the decision making process, important amendments were made to the process at the time of the first renewal of the Ombudsperson mandate with Resolution 1989 adopted in 2011.8 While previously the Ombudsperson was limited to making observations it was this resolution which provided for a recommendation from the Ombudsperson.9 Moreover, the amended Annex provided that if the Ombudsperson recommends delisting and there is no con5 See UN Doc. S/Res/1989 (2011), Annex II para. 6(c). 6 See for example UN Doc. S/Res/2161 (2014), Annex II para. 8(c). 7 Supra note 5, Annex II, paras. 8 and 10. 8 Ibid. 9 Ibid., para. 21.

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sensus in the Committee, the individual or entity will be delisted after 60 days unless the Committee by consensus disagrees with the recommendation or the matter is referred to the Security Council for a vote.10 A recommendation by the Ombudsperson for retention will end consideration of the delisting petition. A state which disagrees with that finding would need to bring a delisting petition to the Committee under the normal procedures for consideration of state requests. The decisions taken through the process will eventually be accompanied by reasons. While this requirement originally related only to decisions to reject the petition it has subsequently been extended to all decisions,11 whether the result is delisting or retention. This requirement is a further reflection of the principles of fairness giving the petitioner information on the decision taken in his or her case. Its importance has recently been highlighted in the most recent renewal of the resolution with additional elaboration of the role of the Ombudsperson and the Committee in the process.12 As indicated this autonomous mechanism with review powers in reference to a Security Council Committee action represents a unique and important development for Security Council practice and the rule of law. It is also significant however, because the elected members of the Council have played an important role in the establishment and strengthening of the regime. Also this unique process gives the elected members an unusually equal knowledge base and power in the action to be taken by the Security Council Committee. 3

The Contribution of Elected Members to the Establishment of the Office of the Ombudsperson

At several critical moments it was the elected members of the Security Council who played instrumental roles in advancing the need for a fair process mechanism in relation to the use of targeted sanctions especially in the context of the Al-Qaida/Taliban regime. By example in June 2006, under the auspices of the Danish Presidency of the Security Council, an open debate took place on ‘strengthening international law: rule of law and maintenance of international peace and security’.13 During that debate many delegations, including interest10 11 12 13

Ibid., para. 23 and Annex II, para. 12. UN Doc. S/Res/2083 (2012), para. 14. UN Doc. S/Res/2368 (2017), para. 16. K. Tünde Huber and A. Rodiles, ‘An Ombudsperson in the United Nations Security Council: A Paradigm Shift?’, (2012) 10 Anuario Mexicano de Derecho Internacional 107, at 115.

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ingly the five permanent members (P5) of the Security Council, referred to the need to enhance the fairness and transparency of sanctions regimes with special emphasis on the Al-Qaida and Taliban sanctions regime. This debate generated a Presidential Statement in which the Council stated that it was: … committed to ensuring that fair and clear procedures exist for placing individuals and entities on sanctions lists and for removing them, as well as for granting humanitarian exemptions [and reiterated] its request to the 1267 Committee to continue its work on the Committee’s guidelines, including on listing and delisting procedures, and on the implementation of its exemption procedures (...).14 It was also during this debate that France proposed the creation within the UN Secretariat of an important mechanism which would at least allow listed individuals and entities to request delisting or exemptions without having to transmit the request through a state. This ‘focal point’ constituted the first measure proposed to provide some form of redress for listed persons.15 By the end of 2006, the Security Council adopted Resolution 1730 establishing the focal point not just for the Al-Qaida/Taliban regime but for all subsidiary organs of the Security Council dealing with targeted sanctions. While the idea was ultimately put forward by a P5 member it was the Danish initiative which provided the forum for the discussion which led to these important developments. At the same time within the Council itself it was an elected member who led the initiative which would ultimately culminate in the creation of the Office of the Ombudsperson. Austria had assumed the Chair of the 1267 Committee in 2009 and used that role to encourage ‘a critical internal debate about the status of the regime, its shortfalls and necessary further improvements of its procedures’.16 At that particular juncture the legal crisis surrounding the regime provided a strong basis to drive the Austrian initiative and that was fully encouraged by the Chair. Of particular note was the decision taken in September 2008 by the European Court of Justice (ECJ) in the case of Kadi et al.17 In its decision the Court struck down the EU implementing regulation for the sanctions on the basis that the procedure had not respected fundamental human rights 14 15 16 17

UN Doc. S/PRST/2006/28 (2006), para. 5. UN Doc. S/PV.5474 (2006), at 18. Supra note 13, at 125. C-402/05 P and C-415/05 P (Joined Cases) Kadi and Al Barakat International Foundation v Council of the European Union and Commission of the European Union [2008] ECR 2008 I-06351.

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such as the right of defence, in particular the right to be heard and the right to effective judicial review. This left EU member states in a particularly difficult situation of having potentially to choose between implementing a Security Council measure or following the ruling of the ECJ. The Austrian Chairman pro-actively raised awareness about the legal challenges, which EU and other member states were facing, and contributed to the discussions about possible solutions.18 This issue fit well into the broader initiative on rule of law and the Security Council which Austria had been pursuing since 2004 and is thus illustrative of how alignment of Security Council term priorities, with broader ongoing policy initiatives can prove strategically useful and very effective.19 The Chairman also initiated a visit together with representatives of the Committee to Brussels, Belgium, in October 2009, in order to discuss the latest developments with regard to sanctions’ implementation by the EU, following the ruling of the ECJ on Kadi I. In this sense, the Chairman stressed at several occasions that it was essential to continue to improve the Committee’s procedures in order to make the 1267 sanctions regime a stronger and more efficient tool. At an open briefing to the Security Council on 13 November 2009, the Chairman, with the consent of the Committee, reiterated that ‘the successor resolution to resolution 1822 (2008), which was due at the end of 2009, would provide the next opportunity to take further steps towards ensuring fair and clear procedures, improving the working methods and thus strengthening the regime’.20 This proved to be an important foreshadowing of Resolution 1904 (2009) which contained the groundbreaking step forward—the Office of the Ombudsperson. While the US ‘held the pen’ on the resolution, Austria along with other elected members made important contributions to the crafting of this important resolution. 4

The Process and the Elected Members

By practice, the role of chair of the various sanctions committees is divided amongst the elected members. In the case of the Ombudsperson process this practice placed specific members in a significant position of influence in terms 18 19

20

Supra note 13, at 127. See the final report and recommendations from the Austrian rule of law initiative. ‘The UN Security Council and the Rule of Law: Final Report and Recommendations from the Austrian Initiative 2004-2008’, www.un.org/ruleoflaw/files/FINAL_Report_-_The_UN_Security_Council_and_the_Rule_of_Law.pdf. UN Doc. S/PV.6217 (2009), at 12.

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of molding the development of this important rule of law initiative. Within the experience of the writer the four chairs which held the post in the period of 2010-15 each made an important contribution in that regard. Austria, as described, had a key role in the resolution development, building the momentum and then using the previous work on the issue and the legal cases to drive the elaboration of the resolution. Austria also was instrumental in ensuring profile for the new Ombudsperson when she arrived in New York in 2009, arranging a press conference and a briefing and ensuring that the necessary arrangements were in place to allow the Office to be functional almost immediately. Germany was the first Chair responsible to oversee implementation of the actual procedures as the first cases were presented before the Committee during their chairmanship in 2011 and 2012. The steps taken to ensure compliance with the process as designed cannot be overemphasized. In the highly political context the innovative procedure was unfamiliar to the Committee members and there was a real danger that the Committee would rely on past practice and fail to robustly implement the ambitious procedure. Through primarily the diligent efforts of the German Chair and the political priority given to the process (almost without exception the Ambassador would chair the meetings and personally review the reports of the Ombudsperson) the cases were handled in accordance with the resolution and the detailed Annex and this set the appropriate tone. Australia taking over in 2013 was instrumental in bringing some coherency and organization to the procedures both in the resolution renewal and in practice. This was also the phase where the political context of the Security Council was increasingly fractured and the Australian Chair was instrumental in supporting the Ombudsperson’s efforts to safeguard and advance the process in the face of increasing pressures against it. The successor Chair New Zealand was extraordinarily helpful not only in supporting the Ombudsperson in navigating through some of the most challenging political issues but also in assisting with serious problems related to the contractual status of the Ombudsperson which had to be addressed with the UN Secretariat. While much focus in terms of a Security Council term is on what is achieved on the political front, in fact important change can also be effected by driving improvements within the Secretariat which can then result in significant procedural improvements in the work of the Council. New Zealand also had the unenviable task of spearheading the transition of Ombudsperson post holders in a politically fraught process. The ultimate highly successful outcome—the selection of a highly qualified exemplary candidate to fulfil the role—is testament in part to these efforts of New Zealand. All of these impor-

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tant achievements are attributable to the work of elected members and serve as important examples of the influence they can wield. 5

Equal Information Effect of the Ombudsperson

In addition to the influence of the elected members in attaining and strengthening the Office of the Ombudsperson, the design of the Ombudsperson process itself is such that elected members play a particularly prominent role. To begin with, one of the most difficult problems with the listing and delisting process before the establishment of the Office of the Ombudsperson was the inequality of information as between Council members. The Ombudsperson process of course did not change the listing procedure and there remained the possibility that the Designating State and a few others might hold more information about the listing than the others. However, one of the interesting effects of the Ombudsperson process has been that states became much more cautious about the sufficiency of the information put forward in support of a listing because of the possibility that it could now be immediately challenged by a listed person. An even stronger process developed however in terms of delisting because of the involvement of the Ombudsperson. Importantly the process was designed such that the information gathered by the Ombudsperson would be comprehensively captured in the report from the Ombudsperson subject only to any confidential material received by the Ombudsperson. That of itself distinguished the Ombudsperson process in terms of equality of information amongst permanent and elected members, in that all of them would receive the report which contained the information underlying the Ombudsperson’s recommendation. Further in so far as the members of the Committee were vigilant in enforcing the requirement, ultimately the decisions taken on the petition were premised solely on the information in the report or otherwise made available to the Ombudsperson. From the beginning the practice of the Ombudsperson was to insist that the decisions taken on the delisting petitions—by the Ombudsperson and by the Committee—had to be premised solely on the information made available to the Ombudsperson. To do otherwise would render the process unfair in that the petitioner could not be accorded the fundamentals of fair process of knowing the case and having an opportunity to respond to the case. Throughout the writer’s tenure as Ombudsperson the members of the Committee adhered to this principle. A particular illustration of this comes with a

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case described in an Ombudsperson report where new information became available in a case after the Ombudsperson had reported to the Committee.21 The recommendation in the case by the Ombudsperson on the basis of the information available to her had been to delist the individual. It was possible that the Committee in these circumstances would opt to overturn the recommendation of the Ombudsperson and maintain the listing. As indicated that would have put in jeopardy the fairness of the process since the individual involved would not have had an opportunity to know of, or respond to, the additional information. Interestingly if it was considered, consensus was not achieved on that approach. Instead the recommendation of the Ombudsperson was implemented after the sixty day period but immediately the individual was relisted on the basis of the new information. While that result has of course its own dangers in terms of serial relisting, in the circumstances it was an important decision favourable to the Ombudsperson process. It also contributed to the equality of information principle in so far as only the information available to the Ombudsperson and through her to all Committee members formed the basis of the decision taken. Similarly the circumstances were such that the consensus decision to relist needed to be founded on information revealed to all Committee members in order to garner their support. 6

Elected Members and the Decision Making Process

Perhaps the most significant innovation of the Ombudsperson process however—generally and in relation to the elected members—is the adoption of a reverse consensus approach to overturning the Ombudsperson decision. As described above, while framed as a ‘recommendation’ the Ombudsperson decision can only be overturned by the Committee through a consensus decision to that effect. This gives significant power to the elected members of the Security Council which outnumber the P5 2-1. For these individual cases the position of each elected member is of critical import. This is especially the case given that the Ombudsperson process stands at the juncture of law and politics. The Ombudsperson must impartially and independently assess to a legal standard whether the information in a case supports a continued listing. In reaching a determination it is recognized that the Ombudsperson will engage with states, hear their opinions and views, and receive any material they wish 21

‘Seventh Report of the Ombudsperson to the Security Council’ (January 31 2014), UN Doc. S/2014/73 (2014), paras. 33-37.

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to submit on the point. But in reaching the ultimate determination she or he must be guided solely by the factual material presented and an overall assessment of the same. It is imperative in that respect that the report prepared by the Ombudsperson details carefully in the analysis what findings were made and on what basis. In particular any credibility assessments of the petitioner or of other information gathered must not only be referenced by the reasons for those findings but must be set out clearly. It then falls to the members of the Committee to use this information to counter any attempt that might be made by a state—be it a Committee member or not—to argue for an overturn on the basis of political considerations, as opposed to the factual underpinning of the listing. Given their majority in the Committee the power of the elected members to safeguard the Ombudsperson process and individual decisions is considerable. The importance of this was illustrated in a case obliquely referenced by the Ombudsperson in her report where, as reported in the press, a significant number of Committee members had agreed to overturn the Ombudsperson’s decision.22 Nonetheless no consensus was achieved to overturn the Ombudsperson decision. Again as indicated in public reports, the ultimate opposition to the consensus came from four members of the Committee—three of which were elected members of the Security Council. The position taken in that case—relatively early in the evolution of the Ombudsperson process— was critical in strengthening and embedding this rule of law mechanism. Finally, as the work on resolutions and within the Committee is premised on consensus, the elected members have the opportunity to use their role to advance improvements in the Ombudsperson process and to support the Ombudsperson in effectively implementing the fair process mandate. This of course is not a dynamic which is in any way exclusive to the Ombudsperson process and it can be effectively used in all parts of the work of the Security Council. But it has been particularly effectively employed in the context of the Ombudsperson process in that states interested in advancing the reach of the sanctions and effective implementation, can be persuaded to include enhancements to the fairness of the process at the same time. Elected members can use their influence in terms of the consensus based work to play an important role in trying to generate support amongst Committee members to sustain and advance the procedures of the Ombudsperson. For example during the mandate of both post holders, the process of obtaining meaningful reasons in accordance with the requirements of the resolution 22

‘Fourth Report of the Ombudsperson to the Security Council’ (July 30 2012), UN Doc. S/2012/590 (2012), paras. 30-32.

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has been very difficult.23 In this regard the writer benefited significantly from the positions adopted by elected members in support of efforts to produce meaningful letters and I believe the same was true of my successor. While the Ombudsperson can use the reports to the Security Council to bring pressure with regards to safeguarding fair process, it is these voices within the Committee itself which are essential to any actual progress. Of course some members of the P5 have been instrumental in assisting the Ombudsperson execute the mandate of the office in a variety of ways over the course of its existence and continue to do so. However it is an important feature of the structure of the procedure that the elected members can often play an equal role and make an equal contribution to this unique innovation in Security Council practice. 7

Conclusion

While many challenges remain, the Ombudsperson process represents an important achievement for transparency and fairness in terms of the work of the Security Council. It remains essential that the elected members of the Security Council continue to prioritize support for the work of the Ombudsperson during their terms. But equally the success with respect to this initiative serves as a good example of how prioritization of an issue along with preparation, persistence and patience on the part of the elected members can result in significant achievements in a Security Council term.

23 See supra note 21, at paras. 39-48 and ‘Fourteenth report of the Ombudsperson to the Security Council’ UN Doc. S/2017/685 (2017), paras. 25-30.

Chapter 16

Environmental Peacebuilding and the UN Security Council Amanda Kron* 1

Introduction

The UN Security Council is increasingly addressing the nexus between the environment, natural resources and peace. Recent research demonstrates that the number of resolutions adopted by the Security Council which address environment and natural resources has increased from 2.6% from 1946-89 to 19% from 1990-2016.1 Elected members of the Security Council have often championed or supported issues relating to natural resources, climate change and the environment. Recently, climate change implications for threats to international peace and security have come to the fore of the work of the Security Council in the field of natural resources and the environment, frequently with the support of elected members of the Council.2 This chapter will address the subject of environmental peacebuilding; the role of the Security Council in the field of natural resources and environment; and the role of elected members of the Security Council in developing strategies and championing issues relating to natural resources and the environment, with a particular focus on the issues of climate change, water and sustainable development.3 * 1

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This chapter is written in the author’s personal capacity, and the contents of the chapter do not necessarily reflect the views of United Nations Environment Programme. C. Bruch, P. Aldinger and S. Yazykova, ‘Revisiting Securitization: An Empirical Analysis of Environment and Natural Resource Provisions in United Nations Security Council Resolutions, 1946–2016’ in A. Swain and J. Öjendal (eds.), Routledge Handbook of Environmental Conflict and Peacebuilding (2018), at 147. See e.g. Security Council, ‘Resolution on the situation in the Lake Chad Basin region’, UN Doc. S/RES/2349 (2017); Security Council, ‘Understanding and Addressing Climate-related Security Risks’, UN Doc. SC/13417 (2018); Security Council Report, ‘Protection of the Environment during Armed Conflict’ (6 November 2018) What’s in Blue, online at: www. whatsinblue.org/2018/11/protection-of-the-environment-during-armed-conflict-arriaformula-meeting.php?nomobile=1. While this chapter will not discuss sanctions, readers interested in this subject may refer to: D.A. Dam-de Jong, ‘UN natural resources sanctions regimes: incorporating market-

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What is Environmental Peacebuilding?

Environmental peacebuilding is an emerging field of international law and policy, which serves as a framework for understanding positive and negative roles of natural resources and the environment throughout the conflict lifecycle. Environmental peacebuilding combines technical, social, and political perspectives together with their historical context. It is one of the first interdisciplinary fields that explicitly includes a temporal element. In general, the concept is divided into three main timeframes: 1. Preventing natural resources and the environment from contributing to or fuelling violent conflict (‘before’); 2. Protecting natural resources and the environment from damage and illegal exploitation during conflict (‘during’); and 3. Using natural resources and the environment to support post-conflict economic recovery, sustainable livelihoods and confidence building in a manner that contributes to local peace (‘after’).4 Given its different dimensions, environmental peacebuilding requires an understanding of how these three temporal periods interconnect in the design and implementation of policies and programmes to govern and use natural resources in a sustainable and peaceful manner.

4

based responses to address market-driven problems’ in L.J. van den Herik (ed.), Research Handbook on UN Sanctions and International Law (2017), at 147-74. For more information on the Security Council addressing compensation and liability for harm to the environment in relation to armed conflicts, see e.g. C. Payne, ‘Developments in the Law of Environmental Reparations: A Case Study of the UN Compensation Commission’ in C. Stahn, J.S. Iverson, and J. Easterday, Environmental Protection and Transitions from Conflict to Peace (2017); S.D Murphy, W. Kidane, and T.R. Snider, Litigating War: Arbitration of Civil Injury by the Eritrea–Ethiopia Claims Commission (2013). See e.g. United Nations Environment Programme, Environmental Cooperation for Peacebuilding: Final Report, (2016), online at: http://postconflict.unep.ch/publications/ECP/ ECP_final_report_Nov2016.pdf; International Law Commission, Preliminary report of the Special Rapporteur, submitted by M.G. Jacobsson, Special Rapporteur, UN Doc. A/ CN.4/674 and Corr. 1 (2014).

Figure 1

Natural resources and the environment over the conflict lifecycle Source: United Nations Environment Programme, Environmental Cooperation for Peacebuilding: Final Report (2016), at 15.

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The UN Security Council, Natural Resources and the Environment

The Security Council has primary responsibility for addressing threats to international peace and security under the UN Charter.5 Specifically, it is responsible for determining ‘the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken … to maintain or restore international peace and security.’6 It decides upon ‘what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the members of the United Nations to apply such measures.’7 Unlike General Assembly resolutions, Security Council decisions can be binding on all UN member states.8 The General Assembly elects the Security Council’s non-permanent members.9 Under its mandate to maintain or restore international peace and security, the Security Council has adopted a number of resolutions addressing natural resources and the environment. A majority of these resolutions from 1946 until 2016 addressed the second phase of environmental peacebuilding as outlined above: during armed conflicts.10 Certain natural resources have typically been mentioned more frequently in Security Council resolutions, such as hydrocarbons.11 However, the trend is towards an expansion of the scope from mineral resources and timber to issues such as wildlife and wildlife products, and climate change.12 In recent years, there has been a trend towards addressing conflict prevention and root causes of conflict, including environmental drivers. For instance, during an open debate on conflict prevention organized by an elected member (Sweden) in January 2017, several members underlined the way that cli5 6 7 8 9 10 11 12

1945 Charter of the United Nations, 1 UNTS XVI (1945), Arts. 24, 39-54; D.M. Malone and S. von Einsiedel, ‘Security Council’ in S. Daws, and T.G. Weiss, The Oxford Handbook on the United Nations (2018), at 140. Charter of the United Nations, ibid., Art. 39. Ibid., Art. 41. Ibid., Art. 25. See also Malone and von Einsiedel, supra note 5, at 141. Ibid., at 141. Bruch et al, supra note 1, at 156: ‘Of the 336 Resolutions that mention the environment and natural resources, 182 were passed while a conflict was ongoing—approximately 54 percent of all relevant Resolutions.’ Ibid., at 162. Regarding minerals and timber, see e.g. M.B. Taylor, and M. Davis, ‘Taking the Guns out of Extraction: UN Responses to the Role of Natural Resources in Conflicts’ in C. Bruch, C. Muffett, and S.S. Nichols (eds.) Governance, Natural Resources, and Post-Conflict Peacebuilding, (2016); regarding climate change see e.g. S.V. Scott and C. Ku (eds.), Climate Change and the UN Security Council (2018); generally see Bruch et al, supra note 1, at 163-4.

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mate change can serve to aggravate existing security factors and act as a ‘threat multiplier’.13 In addition, the UN Secretary-General has noted that climate change is an integrated part of his conflict prevention agenda.14 The 2016 Sustaining Peace resolutions also note that a holistic and integrated approach is needed, including references to Agenda 2030 on Sustainable Development and the Sustainable Development Goals (SDGs).15 Agenda 2030 in turn notes that ‘[s]ustainable development cannot be realized without peace and security; and peace and security will be at risk without sustainable development’.16 4

Strategies and Key Issues Championed or Supported by Elected Members

This section will focus on the following three issues: a) climate change, b) water, peace and security and c) sustainable development. In addition, and as noted above, the Security Council has addressed environment and natural resources from multiple other facets which will not be addressed here. 4.1 Climate Change The Security Council has recognized that climate change is a threat multiplier, aggravating security and conflict risks. Climate change has been a subject of discussion at the Security Council for over a decade, beginning with the UK in 2007, Germany in 2011, and Pakistan in 2013.17 However, some permanent members and developing countries have questioned the strength of the linkages between international security and climate change. They have suggested that the Security Council may not be the right forum for the subject as climate change is primarily a sustainable development issue. In this context, it has been suggested that the Security Council’s work may infringe on the prerogatives of other UN entities, such as the General Assembly, the UN Economic and Social

13 14 15 16 17

See e.g. statements by Sweden, Netherlands, Curaçao, Kazakhstan and Peru at UN Security Council, ‘Understanding and Addressing Climate-related Security Risks’, UN Doc. SC/13417 (2018). See e.g. UN Doc. S/PV.7857 (2017). UN Doc. S/RES/2282 (2016). United Nations General Assembly, ‘Transforming our world: the 2030 Agenda for Sustainable Development Agenda 2030’, UN Doc. A/RES/70/1, para. 35. See e.g. D. Bodansky, J. Brunnée, and L. Rajamani, International Climate Change Law (2017), at 277.

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Council and the UN Framework Convention on Climate Change (UNFCCC).18 Yet, there is some fluidity between these different forums. For instance, the Security Council debate in 2007 led to a 2009 General Assembly resolution on climate change and its possible security implications,19 which called on the UN Secretary-General to prepare a report on the topic summarizing the views of member states and international organizations.20 The Secretary-General’s report to the General Assembly, ‘Climate Change and its Possible Security Implications’,21 was released in September 2009. The report outlines five pathways through which climate change can affect security: 1) increasing vulnerability, 2) undermining development, 3) coping and security, 4) statelessness, and 5) international conflict.22 The report notes that climate change can aggravate ‘threats caused by persistent poverty, weak institutions for resource management and conflict resolution’ and act as a threat multiplier.23 Building on the report of the Secretary-General, a Security Council debate on ‘maintenance of international peace and security: the impact of climate change’ was organized in 2011. The debate, which was organized by Germany, led to a Security Council Presidential Statement on climate change and the maintenance of international peace and security.24 In an attempt to balance differences of opinion on whether the Security Council is the appropriate forum for addressing climate change, the Presidential Statement reaffirms the Security Council’s ‘primary responsibility under the Charter of the United Nations for the maintenance of international peace and security [and] stresses the importance of establishing strategies of conflict prevention.’25 Second, it states that ‘[t]he Security Council recognizes the responsibility for sustainable development issues, including climate change, conferred upon the General As-

18

Ibid. See also Security Council Report, ‘The Security Council and Climate Change: An Ambivalent Relationship’, (31 July 2017), online at: www.securitycouncilreport.org/monthlyforecast/2017-08/the_security_council_and_climate_change_an_ambivalent_relationship.php?print=true. 19 General Assembly, ‘Climate change and its possible security implications’, UN Doc. A/63/281 (2009). 20 Bodansky et al, supra note 17, at 278. 21 Report of the Secretary-General, ‘Climate change and its possible security implications’, UN Doc. A/64/350 (2009). 22 Ibid. 23 Ibid, at 2. 24 Security Council, ‘Statement by the President of the Security Council: Maintenance of International Peace and Security’, UN Doc. S/PRST/2011/15 (2011). 25 Ibid., at 1.

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sembly and the Economic and Social Council.’26 Third, it references the 2009 General Assembly resolution on climate change and its possible security implications, which: … reaffirms that the [UNFCCC] is the key instrument for addressing climate change, recalls the provisions of the UNFCCC, including the acknowledgement that the global nature of climate change calls for the widest possible co-operation by all countries and their participation in an effective and appropriate international response… and invites the relevant organs of the [UN], as appropriate and within their respective mandates to intensify their efforts in considering and addressing climate change, including its possible security implications.27 The 2011 Presidential Statement subsequently makes several significant points on the links between climate change and security. First, it underlined the Security Council’s concern that ‘possible adverse effects of climate change may, in the long run, aggravate certain existing threats to international peace and security’ and that ‘possible security implications of loss of territory of some States caused by sea-level-rise may arise, in particular in small low-lying island States.’28 This latter reference reflects the concerns of small island developing states (SIDS) ‘about the physical encroachment of the rising seas on our island nations’.29 Second, the Security Council requested the Secretary-General to ensure that his reports contain contextual information on ‘possible security implications of climate change … when such issues are drivers of conflict, represent a challenge to the implementation of Council mandates or endanger the process of consolidation of peace.’30 One implication of this second statement is that peacekeeping missions must more actively monitor and report to the Secretary-General on climate change and security dynamics.31 The 2011 Statement remains the only broad ranging Presidential Statement on the issue.32 26 Ibid. 27 Ibid (emphasis added). 28 Ibid., at 1-2; Bodansky et al, supra note 17, at 278. 29 Statement by President Marcus Stephen of Nauru during the 2011 debate, referenced in Security Council Report, supra note 18, at 2. 30 Security Council, supra note 24, at 2. 31 United Nations Environment Programme, ‘Environmental Cooperation for Peacebuilding Programme: Final Report’ (2016), at 46. 32 Climate Diplomacy, ‘Gauging the Temperature: Climate Change in the UN Security Council’ 30 July 2018, online at https://www.climate-diplomacy.org/news/gauging-temperature-climate-change-un-security-council.

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Following the 2011 debate, the Security Council did not hold a formal meeting specifically on climate change for seven years.33 From 2011-17, members instead held briefings or debates focusing more broadly on non-traditional threats to peace and security, including climate change.34 The role of elected members has been prominent in this context. For example, on 30 July 2015, New Zealand chaired an open debate on ‘peace and security challenges facing small island developing states’ which included climate change as an issue of discussion.35 Japan chaired an open debate on 20 December 2017 on ‘addressing complex contemporary challenges to international peace and security’,36 which also incorporated a discussion on climate change. Sweden organized the first open dialogue on climate change and security in seven years on 11 July 2018, with a focus on ‘understanding and addressing climate-related security risks.’37 In 2017 and 2018, the Security Council recognized the effects of climate change on stability in several geographical areas, namely the Lake Chad basin,38 West Africa and the Sahel,39 and the Horn of Africa.40 The Security Council has also addressed the issue of climate change in a series of informal Arria-formula meetings.41 For example, Pakistan and the UK organized a meet33 34 35

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Security Council Report, supra note 18, 2. Ibid., 2. Security Council, ‘Peace and security challenges facing small island developing states’, UN Doc. S/PV.7499 (2015); ‘Issues Facing Small Island Developing States “Global Challenges” Demanding Collective Responsibility, Secretary-General Tells Security Council’, UN Doc. SC/11991 (2015), online at: www.un.org/press/en/2015/sc11991.doc.htm. Security Council, ‘Addressing complex contemporary challenges to international peace and security’, UN Doc. S/PV.8144 (2017). UN Doc. S/PV.8307 (2018); Planetary Security Initiative, ‘Where the world stands on climate security? A summary of the UNSC debate’ (16 November 2018), online at: www.planetarysecurityinitiative.org/news/where-world-stands-climate-security-summary-unscdebate. Security Council, ‘Resolution on the situation in the Lake Chad Basin region’, UN Doc. S/ RES/2349 (2017). Statement by the President of the Security Council, UN Doc. S/PRST/2018/16 (2018). UN Doc. S/RES/2408 (2018). Arria-formula meetings, named for the Venezuelan ambassador who introduced the format, are ‘very informal, confidential gatherings which enable Security Council members to have a frank and private exchange of views, within a flexible procedural framework, with persons whom the inviting member or members of the Security Council (who also act as the facilitators or convenors) believe it would be beneficial to hear and/or to whom they may wish to convey a message. They provide interested Security Council members an opportunity to engage in a direct dialogue with high representatives of Governments and international organizations — often at the latter’s request — as well as non-State parties, on matters with which they are concerned and which fall within the purview of

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ing on the ‘security dimensions of climate change’ on 15 February 2013.42 This was followed by a meeting organized by Malaysia and Spain on 30 June 2015 on ‘climate change as a threat multiplier for global security.’43 Ukraine organized a meeting in co-operation with Germany on ‘security implications of climate change: sea level rise’ on 10 April 2017,44 and a large group of Council members (France, Italy, Japan, Sweden, the UK, the Netherlands, Peru, Germany, the Maldives and Morocco) hosted a meeting on ‘climate change: preparing for security implications of rising temperatures’.45 In fulfilling its responsibility to maintain international peace and security, the Security Council can establish UN peacekeeping operation under Chapters VI (pacific settlement of disputes), VII (actions in respect to threats to the peace, breaches of the peace, and acts of aggression) and VIII (regional arrangements) of the UN Charter. Climate change has been mentioned in the mandates for peacekeeping operations in Darfur,46 Mali,47 and Somalia.48 The Security Council resolutions on climate change, security and stability typically follow the following format: 26. Recognizes the adverse effects of climate change and ecological changes among other factors on the stability of the region, including through water scarcity, drought, desertification, land degradation, and food insecurity, and emphasizes the need for adequate risk assessments

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responsibility of the Security Council.’ From Security Council Methods Handbook, Background Note on the «Arria-Formula» Meetings of the Security Council Members, online at: www.un.org/en/sc/about/methods/bgarriaformula.shtml. IISD, ‘UN Security Council Discusses Security Implications of Climate Change’ (21 February 2013), online at: http://sdg.iisd.org/news/un-security-council-discusses-securityimplications-of-climate-change/. The Center for Climate and Security, ‘UN Security Council Meeting on Climate Change as a Threat Multiplier for Global Security’ (8 July 2015), online at https://climateandsecurity. org/2015/07/08/un-security-council-meeting-on-climate-change-as-a-threat-multiplierfor-global-security/. The Center for Climate and Security, ‘Ukraine, Germany, Sweden Urge UN Security Council to Address Climate Change Threat’ (2 May 2017), online at https://climateandsecurity.org/2017/05/02/ukraine-and-germany-urge-un-security-council-to-address-climatechange-threat/. Security Council Report, ‘Climate Change: Arria-formula Meeting’ (14 December 2017), What’s in Blue, online at www.whatsinblue.org/2017/12/climate-change-arria-formulameeting.php. UN Doc. S/RES/2429 (2018). UN Doc. S/RES/2423 (2018). UN Doc. S/RES/2408 (2018).

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and risk management strategies by governments and the United Nations relating to these factors49 It has been noted that the language of these resolutions ‘refers to the adverse effects of climate change as a factor that contributes to destabilization, and the importance of adequate risk assessment and analysis in this regard.’50 Interestingly, several of these resolutions of the Council call for strengthened assessments by governments as well as by the UN. Several elected members, including SIDS, Sweden, Peru and the Netherlands have highlighted this during Arria-formula discussions.51 A number of Security Council elected members, such as the Netherlands, Germany and Sweden, have supported research and co-ordination initiatives to pave the way for improved analysis and assessment of the relationship between climate change and security.52 Thus, elected members have been an important part of the call of the Security Council to recognize and better assess climate-related risks for peace and security. Several member states have also developed initiatives to link the work of the Security Council on this topic to other relevant fora and provide solutions to address climate-related security risks. 4.2 Water, Peace and Security The connections between water, peace and security have been underlined by the World Economic Forum, as well as several academic institutes and think49

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See Security Council, ‘Resolution on the situation in the Lake Chad Basin region’, UN Doc. S/RES/2349 (2017), para. 26. See similar formulations in Security Council Presidential Statement on Peace Consolidation in West Africa, UN Doc. S/PRST/2018/3 (2018), as well as Security Council Resolutions 2429 (2018), 2423 (2018), and 2408 (2018). Planetary Security Initiative, ‘11 July: Climate Security takes centre stage at UNSC’ (17 December 2018), online at www.planetarysecurityinitiative.org/news/11-july-climate-security-takes-centre-stage-unsc. See e.g. statements of Sweden, Nauru, Netherlands and Peru during debate on climaterelated security risks, UN Doc. S/PV.8307, see also Planetary Security Initiative, ‘Where the world stands on climate security? A summary of the UNSC debate’ (16 November 2018), online at www.planetarysecurityinitiative.org/news/where-world-stands-climate-security-summary-unsc-debate. A few examples include the Stockholm Climate Security Hub (see e.g. Stockholm Environment Institute, ‘SEI joins Swedish initiative to highlight climate security’ (30 August 2018), online at www.sei.org/featured/swedish-initiative-climate-security-hub/); the Planetary Security Initiative (see e.g. Planetary Security Initiative, ‘About us’, online at www.planetarysecurityinitiative.org/about-us), and the Group of Friends on Climate and Security (Federal Foreign Office of Germany, ‘United Nations: Germany initiates Group of Friends on Climate and Security’ (8 August 2018) online at www.auswaertiges-amt.de/en/ aussenpolitik/themen/klima/climate-and-security-new-group-of-friends/2125682).

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tanks including the World Resources Institute, Deltares and the Geneva Water Hub.53 Following an Arria-formula meeting organized by Senegal on 22 April 2016, Senegal chaired the first open debate on ‘water, peace and security’ on 22 November 2016, which explored issues including the relationship between climate change and water scarcity, the management of transboundary waters, and the harmful impact that conflict can have on access to clean water.54 The discussion also referenced SDG 6 on water and sanitation,55 as well as the High-Level Panel on Water and Peace.56 The High-Level Panel on Water and Peace was launched by 15 co-convening countries in November 2015, including Senegal. Following four main sessions of the panel (in Geneva, Dakar, Costa Rica and Amman, respectively), the recommendations from these sessions were included in the report ‘A Matter of Survival’.57 The findings of the High-Level Panel include the importance of international efforts to maintain peace and security to ‘include effective policies for the protection of water infrastructure against all attacks’,58 and suggests among other things that the UN General Assembly convene ‘a Global Conference on International Water Cooperation’, as well as that the UN Security Council ‘design an effective policy framework for the protection of water resources and installations in the situations on the Council’s agenda’.59 The HighLevel Panel on Water and Peace represents an example of how other high-level policy processes pertaining to environmental peacebuilding, or to natural resources and the environment more broadly, can influence the existing mem53

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See e.g. World Economic Forum, Global Risks Report 2018 (2018) online at www3.weforum. org/docs/WEF_GRR18_Report.pdf; Water, Peace and Security Initiative, ‘Are water and conflict linked and what actually links them?’ (2018), online at www.un-ihe.org/sites/default/files/opinion_piece_wps_final_0.pdf. UN Doc. S/PV.7818; ‘Secretary-General, in Security Council, Stresses Promotion of Waterresource Management as Tool to Foster Cooperation, Prevent Conflict’, UN Doc. SC/12598 (2016). See e.g. statements by Russia, Slovakia, Colombia, Australia, Ethiopia and the Maldives at UN Doc. S/PV.7818 (2016); ‘Secretary-General, in Security Council, Stresses Promotion of Water-resource Management as Tool to Foster Cooperation, Prevent Conflict’, UN Doc. SC/12598 (2016). See e.g. statements of France and Slovakia at UN Doc. S/PV.7818 (2016); ‘Secretary-General, in Security Council, Stresses Promotion of Water-resource Management as Tool to Foster Cooperation, Prevent Conflict’, UN Doc. SC/12598 (2016). A Matter of Survival: Report of the Global High-Level Panel on Water and Peace (2017), online at www.genevawaterhub.org/resource/matter-survival (High-Level Panel on Water and Peace Report). Ibid., at 6. Ibid., at 19.

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bers of the Council. As an elected member of the Security Council, Senegal was able to integrate their efforts in the High-Level Panel on Water and Peace through measures such as the 2016 Arria-formula meeting. The work of the Security Council on this topic has also been linked to the work of the UN and the international community for thematic international days such as World Water Day. In a briefing of the Security Council organized by the Netherlands on 22 March 2018—World Water Day—to highlight the interplay between water and security,60 several members of the Council addressed the situation in the Lake Chad basin.61 During their tenure on the UN Security Council in 2018, the Netherlands has been a particularly strong proponent of the linkages between water and threats to international peace and security. On 26 October 2018, an Arria-formula meeting on the topic ‘water, peace and security’ was organized by the Netherlands, in collaboration with Bolivia, Cote d’Ivoire, Belgium, Dominican Republic, Germany, Indonesia and Italy.62 Like Senegal, the Netherlands has linked its efforts in the Security Council to their championing of water, peace and security in other fora. For instance, the statement of the Ambassador of the Netherlands during the Arria-formula in October 2018 highlighted the Water, Peace and Security Partnership, supported by the Netherlands, as a tool to help predict the outbreak of violent conflict.63 In addition, the Hague Declaration adopted by the Planetary Security Initiative (hosted the first time in 2015 by the Netherlands in the Hague), addresses supporting sustainable water strategies in Iraq as one of six key issues for climate change and security.64 In addition to the linkages outlined above, UN peacekeeping mandates have referred to the connections between water, peace and security. For instance, 60

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Government of the Netherlands, ‘The Netherlands puts water centre stage at the UN on World Water Day’ (18 March 2018), online at https://www.government.nl/latest/ news/2018/03/18/the-netherlands-puts-water-centre-stage-at-the-un-on-world-waterday. Security Council Report, ‘Lake Chad Basin: Briefing’ (21 March 2018), What’s in Blue online at www.whatsinblue.org/2018/03/lake-chad-basin-briefing-1.php. Planetary Security Initiative, ‘Arria-Formula meeting on water: peace and security by the UNSC’ (16 November 2018), online at www.planetarysecurityinitiative.org/news/arriaformula-meeting-water-peace-and-security-unsc. Statement by H.E. L. Gregoire-van Haaren, Deputy Permanent Representative of the Kingdom of the Netherlands to the United Nations, ‘Security Council Arria Formula Meeting: Water, Peace and Security’ (26 October 2018), online at www.permanentrepresentations. nl/permanent-representations/pr-un-new-york/documents/speeches/2018/10/26/security-council-arria-formula-meeting-water-peace-and-security. Planetary Security Initiative, ‘The Hague Declaration on Planetary Security’ (2017), online at www.planetarysecurityinitiative.org/signees.

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the 2018 mandate renewal of the UN Assistance Mission for Iraq (UNAMI) notes that it shall ‘further advise, support, and assist… the Government of Iraq on facilitating regional dialogue and cooperation, including on issues of border security, energy, environment, water, and refugees’.65 4.3 Sustaining Peace through Sustainable Development In 2015, the 2030 Agenda for Sustainable Development and the SDGs were adopted by the General Assembly.66 Agenda 2030 and the SDGs provide numerous entry points for environmental peacebuilding, for instance on equitable access to natural resources and benefit-sharing for men and women (SDG 5), transparency, participation and access to information (SDG 16), and combating deforestation and degradation of protected areas (SDG 15) (see Figure 2 below). The SDGs serve to both mitigate fragility and environmental hazards on the one hand and enable good governance on the other. This dual function of mitigating negative impacts and enabling good governance is similar to the dual roles of risk and opportunity that natural resources and the environment can play along the conflict lifecycle (compare Figure 1 and Figure 2). Building on these critical developments in 2015, a number of significant policy advances on environmental peacebuilding were made in 2016. In April 2016, the twin ‘Sustaining Peace’ resolutions were adopted by Security Council and the General Assembly.67 The resolutions were developed as a response to three high-level reviews focusing on peacebuilding,68 peacekeeping,69 and the Security Council Resolution 1325 on Women, Peace and Security,70 which were all released in 2015. The Sustaining Peace resolutions emphasize the importance of ‘a comprehensive approach to sustaining peace, particularly through the prevention of conflict and addressing its root causes’.71

65 66 67 68 69 70 71

UN Doc. S/RES/2421 (2018), para. 2 (a) (iii). United Nations General Assembly, ‘Transforming our world: the 2030 Agenda for Sustainable Development Agenda 2030’, UN Doc. A/RES/70/1 (2015). UN Doc. S/RES/2282 (2016). ‘Report of the High-level Independent Panel on Peace Operations: Uniting Our Strengths for Peace – Politics, Partnership and People’, UN Doc. A/70/95-S.2015/446 (2015). Advisory Group of Experts, ‘Review of the United Nations Peacebuilding Architecture: The Challenge of Sustaining Peace’ (29 June 2015), online at: https://www.un.org/pga/wpcontent/uploads/sites/3/2015/07/300615_The-Challenge-of-Sustaining-Peace.pdf. UN Women, ‘Preventing conflict, transforming justice, securing the peace: A Global Study on the Implementation of United Nations Security Council Resolution 1325’ (2015), online at: http://wps.unwomen.org/pdf/en/GlobalStudy_EN_Web.pdf. UN Doc. S/RES/2282 (2016).

Figure 2

Environmental Peacebuilding and the Sustainable Development Goals Source: The author, adapted from A. Kron, and D. Jensen, ‘Environmental Peacebuilding and the United Nations’ in A. Swain and J. Öjendal (eds.), Routledge Handbook of Environmental Conflict and Peacebuilding (2018).

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Elected members have linked the work on peace and security to sustainable development in the work of the Security Council. For instance, in a concept note for a 2018 Arria debate on the topic of ‘Protection of the Environment during Armed Conflicts’, Kuwait noted: As the international community recognizes that peace and security, development and human rights are interlinked and mutually reinforcing, the role of natural resources and the environment has been increasingly recognized in the context of peacebuilding and sustaining peace. [The Sustaining Peace Resolutions] recall the linkage between sustaining peace and the Sustainable Development Goals.72 In a 2011 debate regarding the maintenance of international peace and security organized by Brazil, Australia stated: We will not have security unless we ensure sound management of natural resources. In so many countries, resource wealth has not translated into stability, and as mentioned by the Representative of South Africa, natural resources have had a particular role in fuelling a number of conflicts. Much has been written and said about the so-called ‘paradox of plenty’, but little has been done in a coordinated way. This [is] something the United Nations has yet to grapple with effectively. But the Intergovernmental Forum on Mining and Metals, chaired by Malawi, has done good work including on guidelines. And we welcome the fact that sustainable mining is one of the themes to be addressed at this year’s Commission on Sustainable Development.73 Colombia and Guatemala were both early proponents of the SDGs already in 2011.74 Colombia has served as an elected member at the Security Council numerous times, including from 2011-12 and thus during the time period when 72 73

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Permanent Representative of Kuwait to the United Nations, ‘Concept note for the Arria formula meeting of the Security Council on the protection of the environment during armed conflict, to be held on 7 November 2018’, UN Doc. S/2018/991 (2018), Annex, at 3. Statement by H.E. G. Quinlan, Ambassador and Permanent Representative of Australia to the United Nations Security Council regarding the maintenance of international peace and security: the interdependence between security and development (11 February 2011), online at: https://dfat.gov.au/international-relations/international-organisations/un/unsc-20132014/national-statements/Pages/united-nations-security-council-regarding-the-maintenance-of-international-peace-and-security.aspx. M. Kamau, P. Chasek, and D. O’Connor, Transforming Multilateral Diplomacy: The Inside Story of the Sustainable Development Goals (2018), at 40.

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the Rio +20 Conference was held.75 During this time, a discussion was arranged at the Security Council on the topic ‘maintenance of international peace and security: the interdependence between security and development’ under the presidency of Brazil, which resulted in a Presidential Statement.76 Similarly, Guatemala served as elected member of the Security Council from 2012-13.77 5

Conclusion

As outlined in the sections above, the trend over time has been for the Security Council to take on greater responsibility for environment and development issues that relate to peace and security, as demonstrated by repeated references to climate change, water, and sustainable development. It is also telling in this context that the number of Security Council resolutions addressing the environment and natural resources has increased seven-fold between 1946 and 2016.78 On the engagement of the Council on climate change impacts relating to peace and security, it has been noted that ‘perhaps most fundamental over the long term is what the end objective of Council engagement on this issue should be, as the Council currently focuses on the symptoms of climate change but does not address its underlying causes.’79 An integrated approach to analyses and assessments can be a way to address such underlying causes. So too can efforts of countries serving as elected members on the Council to address peace linkages to climate change, water and sustainable development in other fora such as the Group of 7,80 the Planetary Security Conference,81 and the

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Security Council, ‘Countries Elected Members of the Security Council’, online at http:// www.un.org/en/sc/members/elected.asp. Security Council, ‘Statement by the President of the Security Council: Maintenance of international peace and security: the interdependence between security and development’, UN Doc. S/PRST/2011/4 (2011). Security Council, supra note 75. Bruch et al, supra note 1, at 147. Security Council Report, ‘July 2018 Monthly Forecast: Climate and Security’ (28 June 2018), online at www.securitycouncilreport.org/monthly-forecast/2018-07/climate_and_security. php. L. Rüttinger et al, A New Climate for Peace: Taking Action on Climate and Fragility Risks. An Independent Report Commissioned by the G7 Members (2015), online at https://www. newclimateforpeace.org. Planetary Security Initiative Conference, online at https://www.planetarysecurityinitiative.org/conference.

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Group of Friends on Climate Change and Security.82 Supporting integrated programming to address climate-fragility risks more broadly is also increasing understanding about underlying causes as well as avenues for action. A number of criticisms have been raised against the Council addressing issues pertaining to the environment, climate change and natural resources, including the risk of securitizing the issue of climate change,83 and the democratic deficit of the Council (10 out of the 15 Council members are elected for two years compared to the General Assembly where all member states can continuously participate and vote).84 Nonetheless, issues pertaining to the linkages between environment, natural resources, climate change and peace and security have also been addressed under the respective mandates of the General Assembly as well as the UN Environment Assembly.85 The Sustaining Peace agenda endorsed by both the General Assembly and the Security Council provides an interesting opportunity to help avoid conflict relapse, address the root causes of conflict, and prevent conflict. Developing linkages to General Assembly-led processes also provides an opportunity for elected members to continue to engage with the topic in question even after their tenure in the Security Council is over. Elected members have been key in championing issues such as climate change (e.g. Germany, Netherlands, Italy, New Zealand, Sweden, SIDS, Côted’Ivoire), specific natural resources such as water (e.g. Senegal, Netherlands), and sustainable development (e.g. Colombia, Kuwait). Their involvement in other high-level processes relating to natural resources and the environment—be it the Group of 7 initiatives or the High-level Panel on Water and Peace—has influenced the mark left by elected members during their time on the Security Council. In addition, elected members have also been involved in driving the Security Council agenda through Arria-formula meetings, which

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Federal Foreign Office of Germany, ‘United Nations: Germany initiates Group of Friends on Climate and Security’ (8 August 2018), online at https://www.auswaertiges-amt.de/en/ aussenpolitik/themen/klima/climate-and-security-new-group-of-friends/2125682. Bruch et al, supra note 1, at 143. M. Binder, and M. Heupel, ‘The Legitimacy of the UN Security Council: Evidence from Recent General Assembly Debates’, (2015) 59 International Studies Quarterly 238-50. See also Bruch et al, supra note 1, at 143. See e.g. UN Environment Programme, ‘Protection of the environment in conflict-affected areas’, UN Doc. UNEP/EA.2/Res.15 (2016); UN Environment Programme, ‘Pollution mitigation and control in areas affected by armed conflict or terrorism’, UN Doc. UNEP/EA.3/ Res.1 (2018); UN Secretary-General, ‘Climate change and its possible security implications’, UN Doc. A/64/350 (2009).

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can serve as a pathway to include representatives from international organizations, affected governments and experts.86 Elected members have further driven the Security Council agenda through the issues referenced in their election campaigns. For example, Germany (elected member for 2019-20) launched the UN Group of Friends on Climate and Security with Nauru on 1 August 2018, which aims to build co-operation in developing solutions to address security policy impacts of climate change and raise public awareness and boost the involvement of the UN. The Group will also ‘play an important role during Germany’s membership of the Security Council as a forum for discussing policy ideas and making recommendations on issues such as enhancing states’ resilience to climate-related security risks.’87 Similarly, elected member Belgium (2019-20) has advocated for the appointment of a special envoy on climate change, noting that ‘[i]f such a position comes into being, the individual appointed could generate ideas for the Security Council’s role in dealing with climate change within the context of efforts pursued by the broader UN system, national governments, and regional organisations.’88 In sum, elected members with different objectives and representing different geographic and regional areas have nonetheless increasingly come together to address concerns pertaining to the environment, natural resources and climate change during their tenure on the Council, creating new coalitions within the Security Council and beyond. The P5 are also notably present in some of these coalitions, in particular relating to climate change.89 Interestingly, it seems that there has been potential for consensus, or at least sufficient consensus, to avoid a veto on issues such as climate change, which has paved the way for the resolutions outlined in section 4.1 above. Going forward, it remains to be seen whether integrated approaches such as those addressing climate change and peacebuilding will continue to become more prominent in the work of the Security Council. Access to and sharing of information as well as the gender dimensions of environmental peacebuilding are also important considerations for elected and permanent members when 86 87 88 89

See footnote 41 above. German Federal Foreign Office, ‘Climate change – a threat to international security’ (27 September 2018), online at www.auswaertiges-amt.de/en/aussenpolitik/themen/klima/ group-of-friends-on-climate-and-security/2142038. See e.g. Security Council Report, ‘July 2018 Monthly Forecast: Climate and Security’ (28 June 2018), online at www.securitycouncilreport.org/monthly-forecast/2018-07/climate_ and_security.php. Cf. e.g. Group of Friends on Climate Change and Security (United Kingdom, France), High-Level Panel on Water and Peace (France).

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addressing the challenges presented by a complex peace and security landscape. Future research should address these critical issues, as well as analyse how the calls of the Security Council for strengthened assessments and analysis have translated into integrated action.

Chapter 17

Non-Permanent Members of the Security Council and International Criminal Justice: A Proposal for Revitalization Giuseppe Nesi 1

Introduction

The aims of this contribution are twofold. The first is to summarize how the treatment of international criminal justice has lost much fervor over the last two decades. The second aim is to explore whether this pattern should be reversed and if so, how. More specifically, what role can the Security Council, and in particular its elected members (E10), play to reach this result? 2

The Rise and Fall of International Criminal Justice in the Security Council

There is a general impression that today, talking about international criminal justice in the Security Council is something of a taboo. With a few exceptions, states are reluctant to talk about international criminal justice in the main political body of the UN system. Notwithstanding, international crimes are still being committed around the world, and the states where these crimes are committed often remain unable or unwilling to investigate—let alone prosecute—those who are allegedly responsible. There is no doubt that the Security Council was the engine, maybe beyond or even against its own intention, for the promotion of international criminal justice when the massacres in the former Yugoslavia and in Rwanda required a response to put an end to impunity for those international crimes. After the end of the Cold War, the establishment of these tribunals provided those who believed the repression of international crimes could be achieved through judicial means established at the international level, with the hope that, after decades of sterile debates, the dream of punishing the perpetrators of the most heinous international crimes could be realized. This breakthrough inspired further steps that led to the establishment of other international (or internationalized) criminal tribunals and of the permanent International Criminal Schrijver and Blokker (eds.), Elected Members of the Security Council: Lame Ducks or Key Players? © 2020 Koninklijke Brill nv. isbn 978-90-04-42537-8. pp. 267-278. | DOI:10.1163/9789004425392_018

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Court. In the first years of the twenty-first century, the issue of international criminal justice was abundantly dealt with by the Security Council, as shown by the referral of situations to the ICC’s Prosecutor,1 and by the establishment of the Special Tribunal for Lebanon in 2007. Further initiatives regarding international criminal justice, such as the creation of the Special Court for Sierra Leone and of the Extraordinary Chambers in the Court of Cambodia (ECCC), were advanced through bilateral agreements between the UN and the interested states; agreements to which the Security Council did not object. Thanks to the establishment of the ICTY and ICTR as well as the referral of situations to the ICC, international criminal justice became one of the most recurring issues on the agenda of the Security Council. Even in resolutions on the protection of civilians in armed conflicts and other specific situations, the necessity of repressing international crimes and punishing the authors of such crimes was initially emphasized, although no specific renvoi was systematically made to international criminal justice mechanisms.2 This perceived taboo surrounding the discussion of international criminal justice in the Security Council is clearly in contradiction with what happened in that body starting in the 1990s. As mentioned above, the Security Council was the forum from which the ‘modern’ conception of international criminal justice first emerged, with the creation—through Chapter VII resolutions—of the ad hoc international criminal tribunals strongly supported by some states within the Security Council and outside of it. Among those states, France and Italy and what was the Conference on Security and Cooperation in Europe (today, the Organization for Security and Cooperation in Europe, OSCE), with the UN Secretariat, were extremely active in setting up the ICTY, whose first President was an Italian, the late Antonio Cassese, who later also presided over the Special Tribunal for Lebanon.3 Thanks to both the five permanent members (P5) and the ten non-permanent members (E10), the Security Council was able to play an active role in establishing ad hoc international criminal tribunals, offering an answer to the 1 2

3

This happened with Security Council Resolution 1593 (2005) on Darfur/Sudan, and Security Council Resolution 1970 (2011) regarding Libya. Reference is here to Security Council Resolution 1325 (2000), on the protection of civilians and the role of women in the prevention and resolution of conflicts and in peacebuilding, according to which the Security Council ‘emphasizes the responsibility of all States to put an end to impunity and to prosecute those responsible for genocide, crimes against humanity, and war crimes including those relating to sexual and other violence against women and girls, and in this regard stresses the need to exclude these crimes, where feasible from amnesty provisions’ (para. 11). L.D. Johnson, ‘Ten Years Later: Reflections on the Drafting’ (2004) 2 JICJ 368.

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quest for justice in situations where international crimes were committed.4 The Security Council actively contributed to the development of international criminal justice in the situations described above because, as many Security Council members clearly stated, the commission of international crimes posed a threat to the maintenance of international peace and security and the perpetrators of those crimes deserved to be prosecuted. Since the states that should have tried the authors of those crimes were unable or unwilling to do so, there was no alternative to the establishment of international criminal tribunals. One could wonder why things have changed so dramatically in recent years even though international crimes are still being committed, as in the case, among others, of Syria and Myanmar. There could be different explanations for this, some of which relate to the difficult relationship between the Security Council, the main political decision-making body of the UN system, and a jurisdictional body (a court, i.e. not a political body) the actions of which are based on the application of legal norms and procedures. This being said, these judicial organs do not act in a political vacuum. In more general terms, the reasons for which international criminal justice has become a taboo in the Security Council can be summarized as follows. First, in certain cases, the prosecution of those who are supposed to be the main actors in peace processes can and does have immediate repercussions on that process. Second, international criminal tribunals have received countless criticisms aimed at their alleged inefficiency and failures to implement international criminal justice by the pertinent jurisdictions. Third, the international community’s attention has been captured by other grave violations of human rights and issues such as terrorism, sustainable development, and protection of the environment—thus detracting from the importance it once assigned to international criminal justice. Fourth, the ICC in particular has repeatedly been accused of practicing a ‘double standard’ by only prosecuting crimes committed in certain parts of the world, leading to allegations of judicial neo-colonialism.5 Each of these criti4 5

Some believed the presence of such tribunals would have discouraged the commission of other international crimes, although one of the worst moments in the former Yugoslavia, the massacre of Srebreniča, took place after the ICTY was established. These arguments are presented in different fora by states and are commented upon by scholars. See, for instance, K.M. Clarke, Fictions of Justice: The International Criminal Court and the challenge of legal pluralism in sub-Saharan Africa (2009); K. Ambos, ‘Expanding the focus of the “African Criminal Court”’, in W.A. Schabas, Y. McDermott and N. Hayes (eds.), The Ashgate Research Companion to International Criminal Law: Critical Perspectives (2013), 499; A. Babington-Ashaye, ‘The International Criminal Court and its Potential Impact on Development in Africa’, in L’Afrique et le droit international: variations sur l’organisation internationale, Liber Amicorum Raymond Ranjeva (2013), 45; R. Dicker, ‘The International Criminal Court (ICC) and Double Standards of International Justice’,

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cisms would deserve an in-depth examination. However, the purpose of this contribution is not to dive into the intricacies of each of these criticisms, but rather to recognize their role in making international criminal justice a taboo topic in the Security Council and explore a possible remedy to this situation. Nevertheless, it cannot be denied that since the establishment of international criminal tribunals the members of the Security Council, and especially the P5, have had to face the ‘quest’ for independence by judicial organs set up to prosecute the authors of international crimes. The crucial role of legal norms and procedures in the functioning of international criminal judicial bodies is something that does not leave much (or any) space for the political flexibility that usually inspires the decisions of the UN’s body to which the Charter assigns ‘the primary responsibility for the maintenance of international peace and security’.6 This is difficult to accept for the body with the greatest executive discretion of the UN system, and especially by some of its permanent members. At the same time, the E10, or at least those who are in favor of a thick conception of the rule of law based on human rights, should support the involvement of the Security Council in international criminal justice issues since the repression of international crimes could favor the maintenance of international peace and security. However, it seems that the positions of some permanent members diverge from the position of many of the E10 (or even the overwhelming majority of the General Assembly) in managing international criminal justice. This could raise some difficult issues within the Security Council. It is not a coincidence that three out of five of the P5 are not parties to the Rome Statute of the ICC.

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in C. Stahn (ed.), The Law and Practice of the International Criminal Court (2015), 3; P.Y. Labuda, ‘The International Criminal Court and Perceptions of Sovereignty, Colonialism and Pan-African Solidarity’, (2013-14) 20 African Yearbook of International Law 289; Ibid., ‘Africa and the ICC: Shattered Taboos and the Status Quo’, EJIL: Talk! (November 23, 2016) at www.ejiltalk.org/africa-and-the-icc-shattered-taboos-and-the-status-quo/; Ibid., ‘The African Union’s Collective Withdrawal from the ICC: Does Bad Law Make for Good Politics?’, EJIL: Talk! (February 15, 2017) at www.ejiltalk.org/the-african-unions-collectivewithdrawal-from-the-icc-does-bad-law-make-for-good-politics/#more-14985; G. Nesi, ‘Statehood, Self-determination and International Criminal Justice’, in P. Hilpold (ed.), Autonomie und Selbstbestimmung in Europa und im internationalen Vergleich (2016), 322; J.B.J. Vilmer, ‘The African Union and the International Criminal Court: Counteracting the Crisis’, (2016) 92(6) International Affairs 1319. As regards African states practice towards the ICC, see African Union, ‘Decision on Africa’s Relationship with the International Criminal Court’, Extraordinary Session of the Assembly of the African Union on 12 October 2013, AU Doc. Ext/Assembly/AU/Dec.1–2 (October 2013); Ext/Assembly/AU/Dec.1–4. (October 2013), au.int/sites/default/files/decisions/9655-ext_assembly_au_dec_decl_e_0.pdf. 1945 UN Charter, 1 UNTS XVI, Art. 24.

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International Criminal Justice Divergences between the E10 and Some of the P5: the Example of the Completion Strategy of the Ad Hoc Tribunals

In order to better understand the different positions within the Security Council with regard to international criminal justice, I refer to the issues that emerged during the long negotiations that led to the adoption of the completion strategy of the ad hoc international criminal tribunals. Recalling what happened in this case and the role played by some of the E10 in this regard could suggest some actions that the E10 could promote in order to ‘permanently’ incorporate international criminal justice in the work of the Security Council. The negotiations that led to the adoption of the completion strategy were conducted in the Informal Working Group on International Tribunals (IWGIT), a subsidiary open-ended organ of the Security Council, where the members of the Security Council are usually represented by their legal advisers. This working group was established informally in June 2000 at the request of three E10, namely Bangladesh, Canada and Tunisia. Its first denomination was ‘Working Group on International Criminal Tribunals’, and it was originally convened to debate a specific issue concerning the Statute of the ICTY and subsequently mandated to deal with other (legal) issues pertaining to the tribunals.7 Until 2008, the IWGIT kept its original denomination and did not have a stable presidency, i.e. the presidency was given to the state that was presiding over the Security Council, following the monthly rotational scheme. In 2008, at the proposal of some of the E10, namely Belgium, Italy, Panama and South Africa, and with the consent of the P5, it was decided to ‘stabilize’ the presidency from year to year. It was further decided that Belgium would hold the presidency for the year 2008. A permanent presidency offered a potential for continuity, which could help strengthen co-operation among the members of the Security Council and the UN Secretariat on the matter of international criminal justice. In this sense, these reforms could provide stronger institutional backing at a political level. This strength and continuity proved vital to accomplishing the considerable task of assembling a workable completion strategy. Although the idea of setting up a completion strategy for the ad hoc international criminal tribunals was first addressed by the President of the ICTY

7

Repertoire of the Practice of the Security Council ‘Informal and ad hoc working groups’, www.un.org/en/sc/repertoire/2000-2003/00-03_5.pdf#page=20.

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in the year 2000,8 the Security Council began the substantive debate on the matter only in 2008, and completed it in 2010 with the adoption of Resolution 1966 (2010), under the IWGIT presidency of Austria.9 The working group dealt almost exclusively with the issue of the completion strategy of the ad hoc international criminal tribunals.10 This conveys the importance attached to the need for a completion strategy by the members of the Security Council. Discussions on the nature of the mechanism emphasized, on the one hand, the type of activities that should be assigned to the new body, and on the other, the reconstitution of the rule of law in the areas of operation of the same tribunals. The debate ultimately recognized how these two elements were really two indispensable sides of the same coin, as the re-establishment of the rule of law could only take form under the oversight of an international residual mechanism. It is worth noting that states with a reputation as strong supporters of noninterference in internal affairs (i.e. Russian Federation and China) stood firmly in favor of terminating the role of the Security Council vis-à-vis the ad hoc tribunals. This vision saw the situations in Rwanda and the Former Yugoslavia as ultimately resolved, and urged the need for local courts to follow up on the work of the tribunals free from entanglements at the international level. Scholars such as Pocar, highlighted the need for a continuation strategy in which local courts had to at least base their work on the work of the ad hoc tribunals. This created the problem of ensuring local courts would keep to the line traced by the ad hoc tribunals. Consequently, the need for an international mechanism became evident.11

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Seventh Annual ‘Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991’ to the Security Council and the General Assembly. See UN Doc. A/55/273-S/2000/777 (2000). The resolution was adopted with fourteen votes in favor and the abstention of the Russian Federation. For the official records of the final meeting see UN Doc. S/PV.6463 (2010). In those years (2007-10), the IWGIT episodically dealt with other issues concerning international criminal tribunals, i.e. the establishment and financing of the Special Tribunal for Lebanon or the issues raised by the ECCC. Meetings concerning those issues were even more ‘informal’, since they took place not at the UN Headquarters but in one of the Permanent Missions of state members of the Security Council, or in other buildings. F. Pocar, ‘Completion or Continuation? Appraising Problems and Possible Developments in Building the Legacy of the ICTY’, (2008) 6 Journal of International Criminal Justice 655; Ibid., ‘The ICTY’s Completion Strategy: Continuing Justice in the Region’, Proceedings of the Annual Meeting (American Society of International Law) (2009) 103 International Law as Law 222.

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Through the activities of the Belgian and Austrian presidencies, both strong supporters of international criminal justice, a new pattern of conduct was introduced in the work of the IWGIT, beyond the stable presidency. It suffices to recall how, while until 2007 the IWGIT met once or twice a year and sometimes even without an agenda, in 2008 about a dozen meetings took place and in 2009 there were 26 meetings of the IWGIT.12 This served as a testament to the central role of the continuity provided by a permanent one-year presidency to the formulation of a completion strategy. In the IWGIT, all the political and legal issues concerning the divergent positions of states on the tribunals emerged. Those issues were, among others, the co-operation among states and between states and international organizations in apprehending and transferring the alleged criminals to the tribunals; the protection of human rights (not only those pertaining to victims and witnesses but also those of the alleged perpetrators of the crimes); non-interference in internal affairs; and the influence of international criminal justice on domestic legal orders.13 In this context, the presidency of the IWGIT served to mediate among divergent positions on these issues and to clarify that what was at stake was not the closing of the tribunals (as requested by Russian Federation and China) but the accomplishment and the continuation of their residual activities.14 After several debates, a formal compromise created what was called a Residual Mechanism for Criminal Tribunals (‘Mechanism’), which would hold jurisdictional and administrative functions, and would have replaced the tribunals in due course.15 More specifically, it was clarified that the Mechanism’s functions were, as reported in Security Council Resolution 1966 (2010): 12

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In a very smart move, the presidencies of the IWGIT, supported by other states, succeeded in ‘formalizing’ the activities of the IWGIT by proposing the adoption of documents that, contrary to what normally happens in the case of informal working groups of any sort, recorded (although not verbatim) the activities of the IWGIT. This happened in 2008 and 2009 with the following documents, respectively: UN Doc. S/2008/849 and UN Doc. S/2009/687. For this information and other interesting considerations on the activities of the IWGIT, see K. Bühler, ‘The Role of the U.N. Security Council in Preserving the Tribunals’ Legacy: the Establishment of a Residual Mechanism and the Preservation of the Archives’, in R.H. Steinberg (ed.), Assessing the Legacy of the ICTY (2011), 59. The ‘six key issues’ that were specifically put on the agenda of the IWGIT for the years 2009 and 2010 were: i) structure and organization of the residual mechanism; ii) (co-) location of the residual mechanism and the archives; iii) commencement day of the residual mechanism; iv) fugitives to be tried by the residual mechanism; v) functions of the residual mechanism; vi) archives and information centers, as reported in Bühler, ibid., 62. G. Acquaviva, ‘Was a Residual Mechanism for International Criminal Tribunals Really Necessary?’, (2011) 9 JICJ 789. On the Mechanism on International Criminal Tribunals see, more recently: G. Tortora, ‘The Mechanism for International Criminal Tribunals. A Unique Model and Some of Its

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– Track and prosecute remaining fugitives; – Conduct and complete appeal proceedings deriving from the last ICTR and ICTY cases; – Consider applications for review of ICTR, ICTY, and Mechanism judgments; – Conduct any retrials; – Conduct investigations, trials, and appeals for contempt and false testimony; – Protect victims and witnesses who testified before the ICTR, the ICTY, and the Mechanism; – Supervise the enforcement of sentences for persons convicted by the ICTR, the ICTY, and Mechanism; – Assist national jurisdictions in investigating and prosecuting cases involving alleged war crimes and other violations of international law; – Preserve and manage the ICTR, ICTY, and Mechanism archives; and – Monitor cases referred to national jurisdictions. This is really an impressive list of functions for a Mechanism that, according to some of the P5, should not even have been created. Although the Mechanism would be structurally very different from the tribunals, many functions would be similar to those performed by the latter. The adoption of Security Council Resolution 1966 (2010), which represented the culmination of the work of the IWGIT between 2008 and 2010, was the most tangible result ever reached by the IWGIT. After the adoption of this resolution, the IWGIT resumed its traditional working methods, meeting just once or twice a year, even if the Security Council still often dealt with both the follow-up of Resolution 1966 (2010) and with other international criminal justice issues. These sparse meetings had to tackle both the reports of the Mechanism, that are presented every six months, as well as the reports of the ICTY and ICTR. It is noteworthy that after the adoption of Resolution 1966 (2010) the IWGIT has never had any prominent role in the negotiation and adoption of other resolutions dealing with international criminal justice issues. The impact of this inaction is explored in the following section.

Distinctive Challenges’, ASIL Insights (6 April 2017); M. Arcari and M. Frulli, ‘The advent of the Residual Mechanism for Criminal Tribunals and the future of (ad hoc) international criminal justice: Questions of legality, efficiency, and fairness’, (2017) 40 QIL Zoom-in 1; A.S. Galand, ‘Was the Residual Mechanism’s creation falling squarely within the Chapter VII power of the Security Council?’, ibid., 5; A. Carcano, ‘Of efficiency and fairness in the administration of international justice: Can the Residual Mechanism provide adequately reasoned judgments?’, ibid., 21; Y. McDermott, ‘Fairness before the Mechanism for the International Criminal Tribunals’, ibid., 39.

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Missed Opportunities for the IWGIT to Make a Contribution to International Criminal Justice Issues

Since Resolution 1966 (2010), the role of the IWGIT has therefore become primarily passive. Nowhere was this more apparent than in Security Council Resolutions 1970 (2011) and 1973 (2011) on the situation in Libya, as well as the highly divisive negotiation on the situation in Syria. None of these took place in the IWGIT. As a result, in my opinion, issues of international criminal justice arising from these situations were not addressed by the Security Council in a satisfactory manner. With regard to Libya, following the initial referral to the Prosecutor of the ICC, no further action was taken by the Security Council to address the intricacies uncovered by the Prosecutor’s investigations. The IWGIT could have provided the Security Council the legal footing on which to base continued political support for the investigations, as had happened repeatedly with the ICTY and ICTR.16 In recognizing this potential for the IWGIT to influence the Security Council, it suffices to recall the central role it played in the adoption of Resolution 1966 (2010) mentioned above. Unfortunately, no such support was forthcoming and this lack of follow-up proved a major hindrance to the ICC’s activities in Libya. With regard to the case of Syria, several proposals to start criminal investigations on cases of grave violations of international humanitarian law were not successful because of the vetoes of the Russian Federation and China to the draft resolutions. These vetoes were explained not by criticizing the integrity or value of international criminal justice, but by utilizing the principle of nonintervention in internal affairs.17 It should also be underlined that other subsidiary organs of the Security Council, namely some sanctions committees (i.e. Sudan and Libya) could tack16

17

It would be sufficient to refer to the debates that took place in the Security Council and in the General Assembly when the principals of the ad hoc tribunals presented their regular reports to those bodies. For these documents, see www.icty.org/en/documents/annualreports; and unictr.unmict.org/en/documents/annual-reports. Records of the UNSC’s meeting on the Situation in the Middle East, see UN Doc. S/PV. 7180 (2014). See in particular paras. 12-13 for the Russian position and paras. 13-14 for the Chinese position. More specifically, the Russian delegate made reference to the case of Libya and to the fact that the referral to the ICC adhered, in his opinion, to a wider political frame that was aimed at favoring the military intervention and the replacement of Qaddafi regime. The Chinese delegate referred explicitly to the respect for the principles of state sovereignty and complementarity and to the perplexities of any referral of a country situation to the ICC. The same diplomat declared also that any referral to the ICC would have hampered the solution of the Syrian crisis rather than favor it.

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le issues concerning international criminal justice if the IWGIT had been more actively involved in their activities. The IWGIT has proved itself capable of tackling issues regarding the future of international criminal justice in a rational and competent manner, weighing the need for both a return to normality in post-conflict situations against the need for international oversight in this process. International criminal justice remains a novel and complex phenomenon that must be addressed by both legal experts and diplomats in the appropriate fora. Failing to do this would mean letting two decades of efforts to end impunity for international crimes fall victim to the political whims of the day. With this is mind, it should be recognized that this argument hinges heavily on the successes of the IWGIT in influencing the Security Council in the adoption of Resolution 1966 (2010). Though a milestone in international criminal justice, Resolution 1966 (2010) aimed to terminate, or at least reduce, the role of the ICTY and ICTR. Therefore, it had a greater potential to unite the interests of states that supported the work of the tribunals with those that did not. By contrast, the prospect of promoting new international criminal justice initiatives in Libya and Syria are less likely to gather the same kind of support. In other words, with Resolution 1966 (2010), the quality of the matter at hand made compromise easier for the members of the Security Council. Nonetheless, the argument above still suggests that the role of IWGIT as a wellequipped forum to promote the cause of international criminal justice should not be undermined or forgotten. 5

Revitalizing International Criminal Justice in the Security Council: the IWGIT and the Role of the Non‑Permanent Members

A reflection must therefore be made on how to revitalize international criminal justice in the Security Council. Could the Security Council, through the activities of the IWGIT, contribute to this revitalization, and indicate new avenues with regard to the relevance of international criminal justice? In this regard, a constructive and realistic suggestion on both the role of international criminal justice in the Security Council and on the IWGIT as a catalyst has been given in a statement recently delivered by one of the E10 in the Security Council. According to this statement the Security Council: … could adopt a more structured approach in dealing with international criminal justice issues and with the International Criminal Court in particular. In this regard, we favor a broader discussion on the role in-

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ternational criminal justice can play in the activities of the Council, for instance by reinforcing the role of the Informal Working Group on International Tribunals. The Council needs to engage in a strategic reflection on the role of justice, including the International Criminal Court, in the prevention, restoration and maintenance of international peace.18 In the same vein, just a few days after the previous statement, with regard to ad hoc international criminal tribunals it has been affirmed that: … the Council should assume full ownership of the work done by these subsidiary organs established in the 1990s and should incorporate their lessons into its activities. Together with the Secretariat we need to find ways to have these issues featured more systematically and analyzed more in depth. Accountability must become part of the United Nations’ broader prevention strategy. There is virtually no situation of which the Council is seized that does not require attention for accountability: from Syria to Yemen, from Iraq to South Sudan, from the Democratic Republic of the Congo to the Central African Republic. We might have different views, but precisely for this reason we should be able to find a forum where we can discuss about these different views thoroughly, and consider all aspects of justice more systematically. We must not shy away from discussing concerns until we find viable solutions.19 And it continued: As long as crimes continue to be committed – and there is abundant evidence that they do continue to be committed – the Council must consider situations including from the angle of accountability and, on the basis of the work done by the ICTY and ICTR, and now the Mechanism on International Criminal Tribunals, redouble efforts to be united in the fight against impunity.20

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Italy’s statement in the Security Council after a briefing on the situation in Libya (8 May 2017). See www.italyun.esteri.it/rappresentanza_onu/en/comunicazione/archivionews/2017/05/consiglio-di-sicurezza-briefing_15.html. 19 Italy’s statement in the Security Council in a meeting on international criminal tribunals (7 June 2017). For the entire text of the statement, see www.italyun.esteri.it/rappresentanza_onu/it/comunicazione/archivio-news/2017/06/consiglio-di-sicurezza-dibattito_12. html (emphasis added). 20 Ibid.

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I think this is a tangible contribution that the E10, together with the ‘goodwill’ P5, could make to the revitalization of the issue of international criminal justice in the Security Council. Today, international criminal justice is certainly seen as a taboo by some members of the Security Council, as evidenced by how it is not even referenced in debates concerning issues closely linked to the repression of international crimes, such as the protection of civilians in armed conflicts.21 Interesting elements could be deduced through the reading of the records of the Security Council meetings when international criminal justice is on the agenda of the Council. Despite constructive contributions by some members, others confine themselves to interventions that adhere more to a ritual than to principled positions. One possible remedy to the marginalization of international criminal justice in the Security Council is restructuring and giving a broader mandate to the IWGIT or even establishing a new ad hoc subsidiary organ of the Security Council with a specific mandate centering around international criminal justice. The establishment of such a body could help to redirect the attention of the international community to the activities put forward in this context, and recall the idea that respect for international humanitarian law and human rights is a fundamental step towards the maintenance of international peace and security. Acknowledging the role of international criminal justice in the Security Council would contribute to increasing the deterrent effect towards the commission of international crimes and favor the rule of law at the national and international level. This work started during the Italian membership in the Security Council and could be completed, continued, or even accomplished by the Dutch membership in 2018.

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One must recall the most recent Security Council resolution that follows-up Res. 1325 (2000) on the issue: reference is here to Res. 2378 (2017), adopted on 20 September 2017, where no reference is made to the role of international criminal justice as a means to punish international crimes.

Chapter 18

Working from the Outside to Change the Working Methods of the Security Council: Elected Members as a Bridge between the Permanent Members and the Rest of the UN Membership Christian Wenaweser The working methods of the Security Council have long been a topic of discussion both in the Council itself and in the larger context of Security Council reform. These discussions have generally pursued two separate, but complementary, goals. On the one hand, proposals to reform the Council’s working methods have often pursued the overall goal to enhance transparency and inclusion of the work of the Council—in particular with respect to the rest of the UN membership. In parallel, changes in the Council’s working methods were often proposed with the aim of enhancing the role of the elected members (E10), whose role is often overshadowed by the overpowering presence of the P5 and their control over the Council’s proceedings. The Security Council as an institution, guided by its permanent members, has historically taken the position that decisions on the Council’s working methods are the prerogative of the Council itself and therefore not subject to discussion by the wider membership. This view, however, was not shared by much of the general UN membership, and discussions of working methods have been part of discussions to reform the Security Council for over twenty years.1 A strong push to this end began after an effort to enlarge the Security Council failed before the 2005 World Summit when the S5 group was created.2 1

2

For general background, see the Security Council Reports on working methods of the Security Council: ‘Security Council Transparency, Legitimacy and Effectiveness: Efforts to Reform Council Working Methods 1993-2007’ (18 October 2007); ‘Security Council Working Methods: A Work in Progress?’ (30 March 2010); ‘Security Council Working Methods: A Tale of Two Councils?’ (25 March 2014); ‘Security Council Working Methods: Provisional Progress’ (22 January 2018), available from securitycouncilreport.org. The 2005 World Summit Outcome noted support for ‘early reform of the Security Council…in order to make it more broadly representative, efficient and transparent and thus to further enhance its effectiveness and the legitimacy and implementation of its decisions.’ UN Doc. A/RES/60/1 (2005), para. 153. The S5 consists of Costa Rica, Jordan, Liechtenstein,

Schrijver and Blokker (eds.), Elected Members of the Security Council: Lame Ducks or Key Players? © 2020 Koninklijke Brill nv. isbn 978-90-04-42537-8. pp. 279-283. | DOI:10.1163/9789004425392_019

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The approach adopted by this group was best captured in the phrase ‘bigger is not better’. All members of the group were committed to enlargement of the Council. But more importantly they agreed that the way in which the Council operates—and in particular how it interacts with the rest of the UN membership—were just as important as enlargement to make the Council more effective. Thus began work—which would stretch over years to come—to inspire more transparency, inclusion and accountability in the work of the Council. The S5 quickly proceeded to draft a General Assembly resolution which proposed a large number of recommendations—ranging from the more technical to the more political—for consideration by the Security Council, including a provision asking for a report back to the Assembly on implementation.3 Resistance in the Council was considerable—again, it was the permanent members in particular who opposed a General Assembly resolution for reasons of principle. But the political momentum for working methods reform was strong. The Council therefore responded by adopting, under its own authority, a set of measures on working methods which were strongly inspired by the work of the S5, while avoiding the most political provisions, in particular those dealing with the use of the veto. The resulting ‘note 507’, named after its UN document number, has been the guiding text on Security Council working methods ever since—and has regularly been updated.4 In light of this big step taken by the Security Council, the S5 therefore decided not to put their text forward for action in the General Assembly. While implementation of the measures contained in note 507 has always been uneven and inconsistent, this text is nevertheless the only comprehensive reference document for the Council’s working methods.

3

4

Singapore and Switzerland. The acronym stands for ‘small five’ and is a self-ironic play on the acronym ‘P5’. The S5 presented its first draft resolution on the topic in 2006 as a follow-up to the World Summit, see UN Doc. A/60/L.49 (2006). In 2011, the S5 presented a draft resolution for Improving the Working Methods of the Security Council. The draft resolution was presented as Agenda Item 115 in the Follow-up to the Outcome of the Millennium Summit. The Annex proposed various measures for consideration by the Security Council including regarding the Council’s relationship with the General Assembly and other principal organs, effectiveness of decisions, subsidiary bodies, operations mandated and missions carried out by the Council, governance and accountability, appointment of the Secretary-General, and the use of the veto. See www.centerforunreform.org/sites/default/files/ S5%20Reform%20draft%20resolution.pdf. Note by the President of the Security Council, UN Doc. S/2017/507 (2017). The Annex contains a ‘list of the recent practices and newly agreed measures, which will serve as guidance for the Council’s work’, at para. 2.

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In 2012, the S5 group was disbanded and replaced by the ‘ACT’ (accountability, coherence, transparency) group. Numerically much stronger than the S5 group, ACT had also set itself the goal of working from the outside to improve the working methods of the Security Council.5 It did so in various ways, with special focus on two projects. First, the group initiated procedures for the General Assembly in its process of electing the Secretary-General of the UN. In prior elections, the Assembly had simply waited for the Security Council’s recommendation on who should be elected Secretary-General and then proceeded to election by acclamation. Under pressure from the ACT group, the General Assembly decided to hold interactive hearings with all the candidates, and the election of Secretary-General Antonio Guterres was held with a level of transparency that was unknown before. In its second big initiative, the ACT group, inspired by the French-Mexican initiative on voluntary restraint in the use of the veto in situations of mass atrocities, drafted a Code of Conduct on Mass Atrocity Crimes, under which all states are invited to make a public political commitment to work towards ending and preventing mass atrocity crimes as well as not to vote against credible proposals put before the Council to this end.6 Launched officially in October 2015, the Code of Conduct now enjoys the support of 117 states and is frequently referenced in Security Council discussions.7 While discussions on working methods of the Council have often been rather acrimonious, the relationship between the Council and the rest of the membership should not be seen as antagonistic. Interest and engagement on the part of the wider membership ultimately benefits the Council itself and underlines its central role in the UN system. Such involvement is only possible if there is sound interaction with the membership outside of the Council and openness to receiving input—for which the necessary mechanisms and channels exist. For the Council’s members, involving outside players can often feel counter intuitive, in particular at times of very heavy workload—which the Council is increasingly burdened with. States not members of the Council on the other hand, often feel frustrated by the opaque proceedings in the Council, especially if they are directly affected by its decisions and when they are

5 6

7

ACT comprises 28 small and mid-sized countries. Letter dated 14 December 2015 from the Permanent Representative of Liechtenstein to the UN addressed to the Secretary-General, UN Doc. A/70/621-S/2015/978 (2015). The Code of Conduct regarding Security Council action against genocide, crimes against humanity and war crimes, is contained in Annex I. Annex II lists those states that supported the code of conduct at 14 December 2014. See for example UN Doc. S/PV.8175 (meeting of the Security Council of 6 February 2018).

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not only excluded from the decision-making itself, but also from consultations leading to it. In striking a sound balance, a particular role falls on the elected members of the Council: they tend to interact more frequently with states who are not Council members, be more open to institutional change and—of course— know the positions of the outside from their own extensive experience. At the same time, they undertake to have a solid working relationship with the permanent members. Elected members are thus the natural drivers for reform measures in the Security Council. The above-mentioned note 507, which is the reference for all matters dealing with working methods on the Council, was initiated and drafted by Japan. The format of the open debate, with particular emphasis on thematic issues, was first introduced on the initiative of elected members in the 1990s and is to this day almost invariably part and parcel of any presidency of an elected member, while permanent members show much less interest in resorting to this format.8 Finally, the possibility of including external stakeholders, such as civil society activists (‘Arria formula’), was an initiative of the then Permanent Representative of Venezuela.9 Those looking for more openness and more transparency in the Council’s work have therefore always pursued the goal of strengthening the role of the elected members—who tend to become more influential at times of deep disagreement between the permanent members, such as today. In the context of the Syria crisis, which has led to a near constant political paralysis in the Council and resulted in no fewer than a dozen vetoes cast, the lead on the issue of humanitarian access has been with elected members for many years now.10 Such arrangements, resulting from necessity, can be complemented by more institutionalized efforts currently under discussion. Particularly noteworthy are proposals to distribute the chairmanships of Sanctions Committees equal8

9

10

At the initiative of Kuwait, the Security Council held an Open Debate on the Council’s working methods during Kuwait’s presidency in February 2018. See UN Doc. S/PV.8175 and UN Press, ‘Calls for greater inclusion of elected Security Council members, limited veto use in addressing atrocity crimes dominate open debate on working methods’, 6 February 2018, UN Doc. SC/13197 (2018). ‘Arria-formula’ meetings are informal, confidential gatherings which enable Security Council members to have a frank and private exchange of views. The process is named after Ambassador Diego Arria of Venezuela, who, as the representative of Venezuela on the Council (1992-93), initiated the practice in 1992. See www.un.org/en/sc/about/methods/ bgarriaformula.shtml. For example, UN Doc. S/RES/2165 (2014) (which authorized cross-border and cross-line access for the UN and its partners to deliver humanitarian aid in Syria without state consent) and UN Doc. S/RES/2258 (2015) (which renewed the aforementioned authorization).

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ly among elected and permanent members—current practice always assigns these time consuming, while often thankless tasks to elected members—and the idea to have more elected members taking the lead in drafting resolutions (‘penholdership’), which is currently in all but a very few cases done by the permanent members, in particular France and the UK. Co-ordination between elected members is not institutionalized and at times viewed with suspicion by the permanent members, with good reason: when united, the elected members of course have considerable power and in particular the ability to block the adoption of all Council decisions, which require a minimum of nine positive votes. This blocking power, however, is virtually never used by the elected members nor has its most radical expression ever been tested: non-participation of the elected members in decision-making would automatically result in a deadlock in the Council. Just as the permanent members often disagree on matters of substance—and these days rather regularly so—elected members are not a unified group, and most of them tend to gravitate towards the substantive positions of one of the permanent members. Possible fears of a revolution by the elected members are therefore largely unfounded. The most important role of the elected members may well lie in the bridge function they can play vis-a-vis the rest of the membership. Limited as their role may be in shaping the substance of the work of the Council, they certainly have a key role in improving its working methods.

About the Contributors Niels Blokker Niels Blokker was appointed Professor of International Institutional Law to the ‘Schermers Chair’ in 2003, at the Grotius Centre for International Legal Studies of Leiden University. In addition, he worked for many years for the Netherlands’ Ministry of Foreign Affairs. In 2007 he became Deputy Legal Adviser at this Ministry. In 2013 he left the Foreign Ministry to work as a full-time professor at Leiden University. His publications include International Regulation of World Trade in Textiles (dissertation, 1989), Proliferation of International Organizations (co-authored with the late Henry G. Schermers, 2000), The Security Council and the Use of Force (co-edited with Nico Schrijver, 2005), International Institutional Law (co-authored with the late Henry G. Schermers, 6th edition 2018), and Immunity of International Organizations (co-edited with Nico Schrijver, 2015). He is co-founder and co-editor-in-chief of the journal International Organizations Law Review. Gerard van Bohemen Gerard van Bohemen is a Judge of the High Court of New Zealand. From 2015 until 2017 he was the Permanent Representative of New Zealand to the United Nations. Prior to this, Gerard van Bohemen was Deputy Secretary at the New Zealand Ministry of Foreign Affairs and Trade, where he was responsible for multilateral and legal affairs between 2010 and 2015. He was Director of the Ministry’s Legal Division and New Zealand’s International Legal Adviser (200510). Gerard van Bohemen’s career has combined his service at the Ministry with private legal practice in Auckland and Wellington. He has served three terms at his country’s Mission to the United Nations in New York. Daniëlla Dam-de Jong Daniëlla Dam-de Jong is Associate Professor at the Department of Public International Law and the Grotius Centre for International Legal Studies at Leiden University. She defended her PhD at the same university on a dissertation entitled International Law and Governance of Natural Resources in Conflict and Post-Conflict Situations, for which she received a research prize by the Foundation Praemium Erasmianum. Currently she is conducting a research project on the contribution of the UN Security Council to enforcing intra-state peace agreements. Her interests lie in the fields of sustainable development and peace and security, with a focus on the work of the UN Security Council.

286

About the Contributors

Alistair Edgar Alistair Edgar served from 2003 till 2018 as the Executive Director of the Academic Council on the United Nations System (ACUNS). Currently, he is Associate Dean at the Balsillie School of International Affairs, Advisory Board member at the Laurier Centre for Military Strategic and Disarmament Studies, and Associate Professor of Political Science at Wilfrid Laurier University. Outside of the university, he is President of the Canadian Land Mine Foundation. His research focuses on local receptions of transitional justice in war-to-peace transitions and post-conflict peace building; UN peacekeeping; and Canadian foreign policy. Ann-Marie Ekengren Ann-Marie Ekengren is Professor at the Political Science Department of the University of Gothenburg. Her research interests are within the areas of international relations, foreign policy analysis and party politics. Issues of particular interest are states’ aspirations for representation in the UN Security Council, mediatization of foreign policy-making and junior partners in coalition governments. She is currently leading a research project, The Quest for Power in International Politics: Campaigns by and Selection of Non-Permanent Members to the United Nations Security Council. The project studies states’ campaigns for a non-permanent seat in the UN Security Council.  Jeremy Farrall Jeremy Farrall is a Fellow at the Asia-Pacific College of Diplomacy in the Coral Bell School of Asia Pacific Affairs at the Australian National University (Canberra) and Adjunct Associate Professor at the Faculty of Law of the University of Tasmania. He is also Convenor of the Academic Network of the United Nations Association of Australia (UNAA). Jeremy has worked for the United Nations in a range of capacities, serving as a Political Affairs Officer both for the UN Security Council at UN Headquarters in New York (2001-04) and for the UN Mission in Liberia (2004-06). He was also a UN Facilitator for the UN SecretaryGeneral’s Good Offices team that mediated peace talks in Cyprus (2004, 2008). Amanda Kron Amanda Kron has worked as Legal Advisor at the Crisis Management Branch of UN Environment since 2015. She holds an LL.M from Uppsala University (Sweden) with a specialization in international law. Prior to joining UN Environment, Amanda served as a research assistant at the International Law Commission, where she focused on protection of the environment in relation to armed conflicts. In addition, Amanda serves as member and Swedish repre-

About the Contributors

287

sentative of the International Law Association Committee on the Role of International Law in Sustainable Natural Resource Management for Development. Ian Martin Ian Martin is the former Executive Director of Security Council Report (April 2015 to March 2018). Ian Martin was a member of the UN’s High-Level Independent Panel on Peace Operations and has served the UN in several senior capacities over nearly 20 years. He was Special Representative of the SecretaryGeneral in Libya, Nepal and Timor-Leste, head of the Gaza Board of Inquiry, Deputy Special Representative in the UN Mission in Ethiopia and Eritrea and Special Adviser to the High Commissioner for Human Rights. He was also Secretary General of Amnesty International (1986-92) and Vice-President of the International Center for Transitional Justice (2002-05). Stephen Mathias Stephen Mathias was appointed as Assistant Secretary-General for Legal Affairs on 1 September 2010. In this position he is the head of the Office of the Legal Counsel and assists in the overall supervision of each of the units of the Office of Legal Affairs. Prior to this, he was the Director of the General Legal Division in the Office of Legal Affairs. Before joining the United Nations, he served at the United States State Department for 20 years. Mr. Mathias has taught as an adjunct professor at Georgetown University Law Center and is a member of the American Society of International Law and the Council on Foreign Relations. Thomas Mayr-Harting Thomas Mayr-Harting served as the Managing Director for Europe and Central Asia in the European External Action Service from November 2015 to August 2019. He is a former Head of the Delegation of the European Union to the United Nations in New York (2011-15) and has also served as Permanent Representative of Austria to the United Nations. Mr. Mayr-Harting represented Austria on the UN Security Council (2009-10) and was President of the Security Council in November 2009. At the 66th UN General Assembly he was also of one of the Vice-Presidents. Furthermore, in the course of his career he has worked at the Austrian Mission to the European Communities in Brussels, the Austrian Embassy in Moscow, the Private Office of the Austrian Foreign Minister and as Director for Security Policy and Policy Planning.

288

About the Contributors

Sarah Mead Sarah Mead is a Research Associate at Leiden University. She obtained an LL.M (cum laude) in Public International Law from the same university in 2018. A New Zealand-trained lawyer, Sarah previously worked in private practice specialising in administrative and constitutional law. She has a particular interest in international environmental law and sustainable development. Christopher Michaelsen Dr. Christopher Michaelsen is an Associate Professor in the Faculty of Law of the University of New South Wales (UNSW) in Sydney, Australia. He teaches and specializes in public international law, human rights and international security. Prior to joining UNSW in 2008, he served as a Human Rights Officer (Anti-Terrorism) at the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Cooperation in Europe (OSCE) in Warsaw, Poland. Together with Jeremy  Farrall, Jeni Whalan and Jochen Prantl he currently is a Chief Investigator on a five-year project funded by the Australian Research Council examining how elected members on the United Nations Security Council can influence Council decision-making and norm development. Ulrika Möller Ulrika Möller is Assistant Professor in the Department of Political Science at the University of Gothenburg, Sweden. Her research interests lie in the fields of international relations theory, comparative politics and foreign policy analysis. Her doctoral thesis, The Prospects of Security Cooperation: A Matter of Relative Gains or Recognition? (2007), addresses the problem of state defection from multilateral co-operation, with an empirical focus on India’s decision to repudiate the Comprehensive Test Ban Treaty (CTBT) in 1996. Further, in Political Leadership, Nascent Statehood and Democracy (2014, 2016) she investigates the political leadership of India and Pakistan at independence. She has also published on the topic of Swedish foreign policy after the Cold War. She is currently working with a project on states’ campaigns for an elected seat in the UN Security Council. Giuseppe Nesi Giuseppe Nesi is Professor of International Law and Dean of the Faculty of Law at the University of Trento. He was legal advisor to the Permanent Mission of Italy to the United Nations in New York for eight years (2002-10) and legal advisor to the President of the General Assembly, Joseph Deiss, in the 65th Session. Previously, he was the legal advisor of the Italian Presidency of the European

About the Contributors

289

Union (1996) and legal advisor of the Chairman-in-Office of the Conference on Security and Cooperation in Europe (1993). In 2013 he was appointed by the Ministry of Foreign Affairs as member of the Inter-Ministerial Committee for Human Rights, Rome. Keiichiro Okimoto Keiichiro Okimoto is a legal officer in the Office of Legal Affairs of the United Nations. Prior to this, he was a legal advisor and delegate of the International Committee of the Red Cross in Iraq, Israel and the Occupied Palestinian Territory, the Philippines and Rwanda. He has a PhD from the University of Cambridge and a LLM from the London School of Economics and Political Science. Nina Pineau  Nina Pineau is a doctoral researcher at the Leuven Centre for Global Governance Studies at KU Leuven. She holds a Bachelor’s degree in political science from FU Berlin (Germany), as well as a Master’s degree in international relations and an LL.M in international law from ULB (Belgium). Her research mainly focuses on the law of international organizations. Kimberly Prost Kimberly Prost currently serves as a Judge on the International Criminal Court, and was the former Ombudsperson for the Security Council’s Al-Qaida and Taliban Sanctions Committee (2010-15). Prior to this, she served for four years as an ad litem judge at the International Criminal Tribunal for the Former Yugoslavia in The Hague. She has also headed sections within the United Nations Office on Drugs and Crime and the Commonwealth Secretariat. Ms. Prost worked for the Canadian Department of Justice for almost 20 years in a variety of roles, including as a prosecutor and as head of the international assistance group which deals with extradition and mutual legal assistance. Alejandro Rodiles Alejandro Rodiles is an Associate Professor of International Law and Global Governance at the Instituto Tecnológico Autónomo de México (ITAM). Before 2015, he was a Research Fellow at the Law School of the Humboldt University of Berlin, and a Lecturer at the Law Faculty of the National Autonomous University of Mexico (UNAM). Mr. Rodiles worked at the Ministry of Foreign Affairs of Mexico and served the Permanent Mission of Mexico to the United Nations in New York (2009-11) as Legal Adviser (Counselor) and as A Member of the Mexican Delegation to the United Nations General Assembly and the

290

About the Contributors

Security Council. He also worked at the Office of the Legal Adviser and Policy Planning Staff of the Ministry of Foreign Affairs in Mexico City. Nico Schrijver Nico Schrijver is part-time Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. He also serves as State Councilor, Division of Legislation, in the Council of State of the Netherlands. From June 2011 until September 2017 he was a member of the Senate of the Dutch House of Parliament and also the chairperson of the Senate Committee on Foreign Affairs and leader of the Dutch delegation to the Parliamentary Assembly of the Council of Europe. Nico was also a member and vice-chair of the UN Committee on Economic, Social and Cultural Rights. During 201719, he served as the president of the Institut de Droit international. He is also a member of the Permanent Court of Arbitration and the Royal Netherlands Academy of Arts and Sciences. He has an extensive publications record on the role of international law in peace and security, natural resource management, human rights protection and sustainable development. He has appeared as legal counsel before the ICJ, ITLOS and specialized law of the sea and investment arbitration tribunals. Christian Wenaweser Christian Wenaweser has been the Permanent Representative of Liechtenstein to the United Nations since 2002. In 2008, Ambassador Wenaweser was elected to a three-year term as the President of the Assembly of States Parties of the International Criminal Court. From 2003 until 2008, he chaired the Special Working Group on the Crime of Aggression for the Assembly of States Parties at the Court. During his time at the United Nations, Ambassador Wenaweser furthermore served as Chairman of the Third Committee (dealing chiefly with human rights issues) during the 57th session of the General Assembly and as Vice Chair of the Open-Ended Working Group on Security Council Reform and Adviser on Security Council Reform during the 59th session. Peter Wilson Peter Wilson is Ambassador of the United Kingdom and Northern Ireland to the Netherlands. Prior to this he was Ambassador and Deputy Permanent Representative of the Mission of the United Kingdom to the United Nations in New York (2013-17). He served as Asia Pacific Director at the Foreign and Commonwealth office in London where he covered North and South East Asia, and Australasia from November 2010. He also served as Director of Strategy for the FCO in 2010. Peter Wilson’s postings have included service at the British

About the Contributors

291

Embassy in Beijing, China where he was Political Counsellor (2007-2010) and Second Secretary, Commercial (1995-98). Jan Wouters Jan Wouters is full Professor of International Law and International Organizations, Jean Monnet Chair ad personam European Union and Global Governance, Director of the Institute for International Law and of the Leuven Centre for Global Governance Studies (a Jean Monnet Centre of Excellence and a University Centre of Excellence) at KU Leuven, and President of the University’s Board for International Policy. He is Adjunct Professor at Columbia University (New York) and Visiting Professor at Sciences Po (Paris), LUISS (Rome) and the College of Europe (Bruges). A Member of the Belgian Royal Academy and  Of Counsel  at Linklaters, he has published widely on international and EU law, international organizations and global governance. He is Coordinator of a large Horizon 2020 Project, RECONNECT (Reconnecting Europe with its Citizens through Democracy and Rule of Law). He regularly advises and trains international organizations and governments, and is often asked to comment international events in the media.

Table of Treaties Anti-Personnel Landmine Ban Treaty of December 1997 91, 95 Charter of the United Nations 1945 Article 1 114 Article 7 115 Article 23 36, 37, 38, 43, 115, 125 Article 24 71, 72, 167, 190, 198, 270 Article 25 221 Article 27 24, 38-41, 127 Article 28 27, 38 Article 29 221 Article 33 117, 119, 188, 209, 220 Article 36 209 Article 39 209 Article 41 209, 217, 218 Article 42 209 Article 94 118 Article 108 21-26 Article 109 25, 26 Article 110 114 Chapter VI 18, 116, 188, 190, 209 Chapter VII  122, 200, 201, 236, 268 Lisbon Treaty 2007 (amending the TEU and TFEU) 148, 154-157, 159-161, 174 Rome Statute of the International Criminal Court 1998 95, 270 Treaty of Peace Between the Allied and Associated Powers and Germany 1919 (Treaty of Versailles) 14 Treaty on European Union 2007 (TEU) 147, 148, 153, 155, 156, 158, 159, 162, 163, 165, 166, 168, 170 Treaty on the Functioning of the European Union 2007 (TFEU) 155-156

Table of Resolutions General Assembly Resolutions 992 (X) (1955) 26 1991 A (XVIII) (1963) 24, 25, 29, 30, 35 2046 A and B (XX) (1965) 25 2101 (XX) (1965) 26 55/56 (2000) 95 60/1 (2005) 141, 188, 226, 238, 279 67/297 (2013) 102 68/307 (2014) 31, 45 69/231 (2015) 31 70/1 (2015) 146, 252, 260 70/305 (2016) 31 71/248 (2016) 145 71/323 (2017) 32

Security Council Resolutions 181 (1963) 122 209 (1965) 27 219 (1965) 27 232 (1966) 218-221 344 (1973) 40 418 (1977) 122, 219 421 (1977) 122 460 (1979) 219 552 (1984) 121 558 (1984) 122 598 (1987) 121 661 (1990) 219-221 713 (1991) 219 717 (1991) 205 733 (1992) 219 748 (1992) 219-221 757 (1992) 219-220 788 (1992) 219 792 (1992)  205 820 (1993) 219-220

841 (1993) 219-221 864 (1993) 219-222 918 (1994) 219 919 (1994) 219 948 (1994) 219 1054 (1996) 219-221 1074 (1996) 219 1132 (1997) 219, 221, 222 1160 (1998) 219 1173 (1998)  205, 222 1199 (1998) 95 1227 (1999) 94 1229 (1999) 93 1237 (1999) 27, 93 1265 (1999) 203 1267 (1999) 141, 217-219, 221, 223, 225-227, 229-237, 241, 242 1295 (2000) 94 1296 (2000) 203 1298 (2000) 220 1306 (2000)  205 1325 (2000) 67, 128, 144, 161, 212, 260, 268, 278 1343 (2001) 205, 219-222 1367 (2001) 219 1372 (2001) 219 1373 (2001) 76, 200 1448 (2002) 219 1478 (2003)  205 1493 (2003) 220-221 1506 (2003) 219 1509 (2003) 205 1521 (2003) 220, 222 1540 (2004) 76, 200 1556 (2004) 220 1572 (2004) 215, 220, 221, 222 1612 (2005) 142

294 1636 (2005) 220, 221 1643 (2005) 205 1718 (2006) 220, 221 1730 (2006) 228, 229, 241 1737 (2006) 220, 221 1756 (2007) 136, 207 1794 (2007) 136 1820 (2008) 185 1822 (2008) 141, 229, 242 1823 (2008) 219 1843 (2008) 136 1856 (2008) 136 1857 (2008) 207 1888 (2009) 185 1904 (2009) 107, 188, 232, 233, 237, 238, 242 1907 (2009) 220 1940 (2010) 219 1952 (2010)  207 1966 (2010) 272-276 1970 (2011) 268, 275 1973 (2011) 275 1988 (2011) 219, 220 1989 (2011) 219, 220, 225, 233, 235, 239 1991 (2011) 207 2023 (2011)  207 2048 (2012) 220 2083 (2012) 233, 240 2127 (2013) 220 2134 (2014) 207 2139 (2014) 51, 204

Table of Resolutions 2140 (2014) 220 2165 (2014) 102, 131, 135, 282 2166 (2014) 129 2202 (2015) 213 2206 (2015) 220 2227 (2015) 211 2231 (2015) 128, 166, 220 2254 (2015) 103, 212 2261 (2016) 211 2240 (2015) 173,174, 191 2254 (2015) 103, 212 2258 (2015) 102, 282 2282 (2016) 252, 260 2283 (2016) 220 2286 (2016) 102 2288 (2016) 220 2332 (2016) 102 2334 (2016) 52, 105, 131 2364 (2017) 214 2366 (2017) 211 2349 (2017) 248, 255, 257 2364 (2017) 214, 2374 (2017) 214, 220 2408 (2018) 255-257 2417 (2018) 126, 128, 130 2423 (2018) 256, 257 2424 (2018) 152 2426 (2018) 152 2429 (2018) 256-257 2436 (2018) 126, 130 2447 (2018) 126, 130

Presidential Notes and Statements Presidential Notes 268 (2014) 170 (2016) 619 (2016) 507 (2017)

49, 50 53 45 49, 50, 136, 198, 280, 282

Presidential Statements 6 (1999) 22 (2007) 11 (2010) 28 (2014)

202 143, 206 189 213

Case Law Ayadi v Council of the EU, [2006] ECR II-2139; Case T-49/04 230 Commission and Others v Kadi (Kadi II) Case C-584/10 P, EU:C:2013:518 233-234, 236 Hassan v Council of the EU, [2006] ECR II‑52 230 Kadi and Al Barakaat International Foundation v Council and Commission, C-402/05 P and C-415/05 P, EU:C:2008:461 141, 230, 241 Kadi v Council of the EU, [2005] ECR II-3649; Case T-253/02 230 Sayadi and Vinck v Belgium, CCPR/C/94/D/1472/2006 230 Yusuf and Al Barakaat v Council of the EU [2005] ECR II-3533; Case T-315/01 230

Index Afghanistan 52, 88, 94, 128, 130 African group 43, 44, 57-58 Agenda 2030 252, 260 Anglo-Iranian Oil Company (AIOC) 118 Angola 49, 93-95, 205, 222 arbitration 117, 118 arms embargo 122, 219, 223, 224 Arria-formula meeting 47, 93, 192, 255, 257259, 262, 264, 282 Asser, Tobias MC 112 Australia 46, 51, 53, 57, 59, 87, 88, 102, 131, 177, 204, 234, 243, 262 Austria 157, 163, 184, 227, 231, 232, 241, 242, 243, 272, 273 Axworthy, Lloyd 89-98, 202 Belgium 133-152, 201, 205, 216, 229, 230, 242, 265, 271 Bonn-Berlin process 224 Bosnia (and Herzegovina) 89, 91, 202 Brazil 131, 226 Brexit 98, 125, 151, 158 Britain (see also United Kingdom) 116, 167 Campaign to Ban Landmines 91 Canada 57, 59, 85-98, 201-204, 215, 222, 230, 271 Central African Republic 145, 164-165, 212 chemical weapons 52, 54, 121, 164 children and armed conflict 142, 144, 161, 177, 198-199 China 18, 21, 40, 43, 50, 52, 75, 87, 92, 96, 103, 135, 157, 186, 272, 273, 275 climate change 62, 69, 127, 146, 199, 200, 248, 252-265 Colombia 30, 32, 38, 39, 164, 211, 213-214, 262   counter-terrorism 146, 186, 191, 195, 229, 232 Counter-Terrorism Committee (CTC) 186, 191 Counter-Terrorism Executive Directorate (CTED) 186, 191 Cuba 30, 32, 38, 39

Democratic Republic of Congo (DRC) 136, 142-143, 167, 207 Denmark 188, 227-229, 231, 232 diamonds 93, 95, 205, 206, 220, 222 Drummond, Sir Eric 112 Dumbarton Oaks 18-19, 75 East Timor 123-124 Economic and Social Council 22, 200, 254 election of non-permanent members 56-70 ‘gentleman’s agreement’ 28-29 budget 58, 86 conduct of 34, 43 criteria 18-21, 27-28 nomination process 32, 44, 56-57, regional groupings 44, 57-58, 85 regular and by-elections 33 required majority 36, 44, 56 split term 47, 62, 124-125 term of office 37, 45 timing 31, 46, environmental peacebuilding 248-266 European Court of Justice 230, 231, 233, 236, 241 European Union  Delegation of the European Union to the UN (also EU delegation or Delegation) 154-164, 167-175 European Union External Action Service (EEAS) 156, 161, 171, 172 High Representative of the Union for Foreign Affairs and Security Policy (High Representative) 147, 148, 155-156, 159, 161, 163-166, 168-170, 172-174 Lisbon Treaty (see also TEU and TFEU) 148, 154-157, 159-161, 174 member states 65-67, 69, 126-127, 147-152 Operation Sophia 164-165, 172-174 Political and Security Committee (PSC) 172, 173, 174 sanctions regime 230-231, 233, 236, 241242

298 Treaty on European Union (TEU) 147, 148, 153, 155, 156, 158, 159, 162, 163, 165, 166, 168, 170 Treaty on the Functioning of the European Union (TFEU) 155-156 Financial Action Task Force (FATF) 195 Finland 46, 59, 61, 69, 222, 229, 231, 232, 234 Fowler, Ambassador Robert (Canada) 8889, 93-98, 222 France 15, 18, 40, 43, 49, 100, 115, 120-122, 127, 135, 139, 148, 149, 151, 157, 158, 167, 169, 173, 174, 176, 233, 236, 241, 268, 283 General Assembly (UNGA) 18-39, 42-46, 56, 58, 72-73, 75, 90, 91, 92, 95, 99, 107-109, 124-125, 132, 133, 140, 146, 149, 160, 161, 170, 195, 200, 228, 251, 253, 254, 258, 260, 264, 270, 280, 281 Germany 14, 15, 85, 88, 146, 149-151, 169, 192, 224, 227-234, 243, 252, 253, 256, 257, 259, 264, 265 Global Counterterrorism Forum (GCTF) 195 Greece 14, 90, 92, 116, 222, 227, 228, 234 Grotius, Hugo 112 Hague Conference on Private International Law 111 Hague Peace Conference 111, 112 High-level Panel on Threats, Challenges and Change 45, 71, 75, 80 High-Level Panel on Water and Peace 258259, 264 human rights 62-63, 94, 129, 130, 132, 139, 141, 144, 170, 176, 177, 179, 190, 191, 193, 196, 202-204, 231, 241, 270, 273, 278 Human Rights Committee (UN) 230 Human Rights Council (HRC) 61, 151 human security 90, 91, 93, 141-142, 202, 215, 232 India 30, 92, 117-119 Indonesia 116-117, 123 Informal Working Group on Documentation and Other Procedural Questions 45, 184 Informal Working Group on International Tribunals (IWGIT) 271-278 Interlaken process 224

index International Court of Justice (ICJ) 41, 118, 188 International Criminal Court (ICC) 91, 140, 145, 268-270, 275 international criminal justice 267-278 international organizations 72, 76, 189, 273 Iran 115-118, 120-121, Iran nuclear deal, JCPOA 128, 161, 166, 169 Israel 52, 104-105, 131 Israel-Palestine conflict (see also Middle East Peace Process) 52, 104, 120, 139 Italy 36, 46-47, 59, 61-63, 124-125 Japan 15, 116, 184, 255, 282 Jordan 102, 204 Kashmir 117, 119 Kimberley Process Certification Scheme 95, 206 Kosovo 89, 95-97, 169 League of Nations 14-17, 112-113 Assembly of the League of Nations (the League Assembly) 14, 15, 16, 21 Council of the League of Nations (also the League Council) 14-17, 21, 112 Covenant of the League of Nations 14 Lebanon 120 Liberia 205, 214 Libya 129, 173, 275 Liechtenstein 226, 228, 229, 231, 232 Luxembourg 51, 102, 131, 177, 204 Mali 214 Middle East Peace Process 101, 103-105 Mogherini, Federica (EU High Representative) 147, 164-165, 170 nationality 113 NATO 86, 89, 91, 95-96 natural resources 199, 201, 205-208, 216, 248-266 Netherlands 36, 46-47, 61-64, 67-68, 111-132, 177, 179, 259 neutrality 111, 112, 115 New Zealand 48, 49, 99-110, 117, 243, 255 Non-Aligned Movement / Countries 119, 122, 185

index non-permanent members  ‘gentleman’s agreement’ 28-29 Arab ‘swing seat’ 30, 43, 44 history 13-27 influence / power of 39-41, 108-110, 135137, 152, 197, 244, 258 preparation for term 45-46 rotating presidency 197 term 18, 31, 37, 45, 80-82 votes 26, 38, 40, 98, 108, 127, 283 North Korea 128 ombudsperson 217-236, 237-247   Pakistan 117, 119 peace agreements 208-216 2003 Accra Comprehensive Peace Agreement 214 2015 Agreement on Peace and Reconciliation in Mali 214 Lomé Peace Agreement 213 Peace Palace 112 peacekeeping, peace operations 106, 126, 129-132, 142, 172, 186, 188, 204, 211 AMISOM 166 climate change 254, 256 EUFOR 165, 167 financial contribution 63 MONUC 136, 142, 143, 145, 2 MONUSCO 207 natural resources 205-207 UNAMI 260 UNAMIR 89 UNIFIL 120 UNMIL 205 UNPROFOR 89 UNTAC 205 penholder system 49-51, 53-55, 100, 102, 107, 135, 158, 177, 283 Permanent Court of Arbitration (PCA) 112 Permanent Court of International Justice (PCIJ) 112 permanent members, P5 15, 25, 31, 38-42, 4346, 48-49, 51-58, 60, 72, 75, 80-82, 86-88, 96, 98, 100, 107-109, 127, 131, 133, 134-136, 138, 144, 149, 151, 152, 158-159, 166, 167, 176-179, 187-196, 197, 208, 241, 247, 265, 268, 270, 271, 274, 278-283 Poland 28, 36, 115, 119, 127, 149, 151, 169

299 Portugal 85, 171 President (of the Security Council)  Note by the President 50, 51 Presidential Statement 48-51, 53-54, 94, 96, 121, 129, 130, 131, 137, 141-143, 157, 163, 188, 189, 198, 199-203, 206, 207, 212, 241, 253, 254, 255, 263 private sector 206-207 Proliferation Security Initiative (PSI) 195 protection of civilians 48, 52-53, 93, 126, 144145, 161, 198, 201-208, 215, 268, 278 Provisional Rules of Procedure (PRoP) (Security Council) 221, 226-230, 236 Residual Mechanism for Criminal Tribunals 273-274 Responsibility to Protect (R2P) 141 Reynders, Didier (Belgian Foreign Minister) 149, 170 Rome Statute 270 rule of law 183-196, 227, 236, 237, 242, 246, 270, 272 Belgium 140-141 Friends of the Rule of Law 184 Netherlands 111-132 New Zealand 105 Rules of Procedure of the General Assembly 25, 31, 32-34, 36-37 Russia  Rutte, Prime Minister (Netherlands) 67, 127, 130, 132 sanctions  Al-Qaeda, Taliban, ISIL ( also 1267/1989) 107, 141, 221, 225-226, 229-236, 237, 240-242 Angola, UNITA 93-94, 222 Belgium – role of 140, 141, 146 Canada – role of 93-95, 222, committees 45-47, 53, 55, 107, 136, 140, 221-222, 228, 242, 246, 275, 282 comprehensive 220, 223 criticism 141, 223 High-level Review on Sanctions 222, 232 Iraq 93, 219 Libya 129 North Korea 128 peace agreements 210, 214 reform 141, 188, 191, 193, 217-236

300 South Africa 122, 219 Southern Rhodesia 219 targeted (or smart sanctions) 146, 187, 206-207, 214, 220, 223, 224, 228, 240 San Francisco Conference 75, 113 Security Council  agenda 42, 47-49, 87-89, 92, 100, 107, 126, 137, 148, 151, 156, 164, 172, 174, 179, 188, 197-199, 201, 204, 216, 265 Note 507 280, 282 thematic debate 48, 93, 94, 137, 143, 161, 178, 183, 185, 187, 188, 190, 197-216, 227, 236 transparency 53, 90, 94, 95, 183, 184, 189, 190, 241, 280-282 working methods 48-51, 53, 90, 152, 184, 189-190, 229, 279-283 Security Council Reform  ‘ACT’ (Accountability, Coherence, Transparency) Group 281 Netherlands – role of 130 New Zealand – role of 109 Open-ended Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council 73 S5 Group 279-281 size and composition 55, 71-82, 90 Sierra Leone 202, 213, 268 Small Island Developing States (SIDS) 101, 254 Soviet Union (USSR) 15, 18, 29, 75, 86, 114116, 118, 120, 122 South Africa 122, 219 South Korea 120 Special Tribunal for Lebanon 268 split term 47, 62, 124, 125 Stockholm process 224, subsidiary bodies – see also sanctions 4547, 55, 107, 108, 136, 184 sustainable development 146, 252, 260-263 Sustainable Development Goals 146, 252, 260, 262 Syria conflict  humanitarian assistance 51, 102, 131, 164, 204 International Syria Support Group (ISSG) 102-103

index peace process 164, 212-213 penholdership 51, 102 role of elected members 51, 54, 107-109, 152 Security Council 42-43, 53, 73, 100, 102, 103, 129, 275, 282 Sweden 32, 48, 51, 54, 59, 61-70, 255 thematic debate 48, 93, 94, 137, 143, 178, 185, 187, 188, 189, 197-216, 227, 236 threat to the peace 199, 200, 209, 251 Trump, President 52, 86-88, 130, 132, 151 Ukraine, Ukrainian Socialist Soviet Republic 116, 119, 122, 129, 213, 256 United Nations Conference on International Organization (UNCIO) 18 United Kingdom (UK), see also Britain 54, 98, 100, 102, 115, 117-119, 122, 127, 135, 139, 148, 149, 151, 157, 158, 167, 169, 173, 176, 177, 185-188, 192, 207, 230, 233, 236, 252, 255, 256, 283 Van der Stoel, Ambassador 120-121 Van Kleffens, Minister 113-116 Van Vollenhoven, Cornelius 112 Venezuela 53, 93, 105, 129, 131, 169, 282 veto 50, 52, 56, 60, 73, 80-81, 87, 114, 179, 189, 197, 265, 275, 280, 281 water 126, 207, 252, 256, 257-260, 263-265 weapons of mass destruction 87, 200, 223 Western European and Others Group (WEOG) 62, 68, 85-86, 192 World War I 112 World War II 113, 116 Yemen 54, 129 Yugoslavia 35-36, 116