posted on FRI 18 OCT 2013 6:04 PM
Security Council Elections: Options after Saudi Arabia Rejects its Seat

This morning (18 October) Saudi Arabia issued a Ministry of Foreign Affairs statement announcing that it would not accept membership of the Security Council until it is reformed. Only yesterday Saudi Arabia was elected by the General Assembly as a non-permanent member for the 2014 - 2015 term together with Chad, Chile, Lithuania and Nigeria. In explaining its decision, Saudi Arabia said “the manner, the mechanisms of action and double standards” in the Council prevented it from performing its duties and responsibilities towards preserving international peace and security. It also specifically highlighted the way in which the Council has handled the situations in Israel-Palestine and Syria and its failure to make the Middle East a zone free of all weapons of mass destruction as examples of the Council inability to carry out its responsibilities.

At press time Saudi Arabia had not sent a formal letter to the President of the General Assembly on its decision not to accept the seat on the Council but it seems some members of the Arab Group have begun informal conversations about how to handle this unprecedented situation. Although no formal decision has been taken, it appears that the general sense is that the Arab Group should field a candidate for this seat. (The now seemingly vacant seat is an Arab seat that “swings” between the Middle East countries in the Asia-Pacific Group and the countries of North Africa every two years. Although this is an informal understanding made through an agreement that was never recorded, since 1968 there has always been an Arab state on the Council.)

If Saudi Arabia does officially reject its seat, action will need to be taken by the General Assembly to fill the seat allocated to the Asia-Pacific Group. Media reports indicate that the Office of the President of the General Assembly has explained that an emergency election would be needed and that the Asia-Pacific Group would need to nominate a new candidate and hold elections by 31 December. The Arab Group, which is a sub-group within the Asia-Pacific Group, will play a key role in filling this seat. Members of this group will need to agree on a replacement candidate as soon as possible. Currently Kuwait and Yemen have both indicated that they will run in 2017 and Bahrain in 2021. It is unclear if any of these future candidates are in a position to take on the seat immediately.

While the dust has yet to settle, it appears that there are a number of options available. If the Arab Group cannot find a suitable candidate, it is possible that the Africa Group may step in and suggest an Arab candidate from Africa. In this scenario, an arrangement could be made to have the African Group take the Arab seat this time, with it reverting to a Middle East country in the Asia-Pacific Group in two years. (Egypt, which is planning to run in 2015 is currently the next African Arab country that has declared its candidacy for this seat but given its recent military coup there may be some countries that would not be comfortable with this choice.) Alternatively, although less likely, an arrangement could be worked out to split the 2014-2015 term between an Arab African country and Arab Middle East country. (Split terms were first agreed to in 1955, when after 35 rounds of inconclusive voting Yugoslavia was elected to serve for one year in the Council in 1956 and the Philippines serving in 1957. Split terms were also agreed to in the 1959 [Poland, Turkey], 1960 [Ireland, Liberia], 1961 [Philippines, Romania], 1963 [Czechoslovakia, Malaysia], and 1964 [Jordan, Mali] elections.)

Another option if no suitable candidate is found from the Arab Group is for the Asia-Pacific Group to provide a candidate. While this might solve the problem of finding a candidate it could undermine the gentleman’s agreement of having an Arab member continuously in the Council. Opening the field of candidates beyond the Arab or Asia-Pacific Groups is an unlikely option as some might argue that this would be in violation of Article 23 of the UN Charter which suggests that due regard needs to be paid to equitable geographical distribution.

While the most likely scenario is for an extraordinary election to be called, there is a precedent for the President of the General Assembly to determine which member state(s) assume the available seat(s) through private consultations with member states rather than an election. On 29 December, 1964, there were five members competing for four Council seats. Exceptionally, Malaysia assumed the seats occupied by Czechoslovakia, as the two countries had agreed to a split term after a protracted and inconclusive election in 1963. Four other candidates—Jordan, Mali, Netherlands and Uruguay—were competing for the three remaining seats. (At the time, the Council had eleven members so three seats were contested each year, rather than five.) Foregoing elections altogether, which many feared would be inconclusive, the President of the General Assembly proposed to the General Assembly (A/PV.1312) an alternative way of selecting the incoming non-permanent members of the Security Council. Indicating that the procedure would not constitute a precedent, he chose to consult privately with member states, soliciting their preferences among the candidates anonymously and in writing. On 29 December afternoon, the President informed the General Assembly that as a result of his consultations, the Netherlands and Uruguay would be awarded two-year terms. Following further consultations he announced on 30 December that an agreement had been brokered between Jordan and Mali to serve a split-term (one year each). The General Assembly did not object to the procedure and the candidates were selected as suggested, although three countries—Albania, Cambodia, and Indonesia—expressed reservations about the process.

Questions are also being raised about whether the Security Council can be legally constituted on 1 January 2014 if there are less than the 15 members called for in the UN Charter. Historically, there are examples of the Council meeting with less than its original 11 or current 15 members, in fact as early as its 28th to 30th meetings between 29 March and 4 April 1946, when the Soviet Union was first absent. (Resolution 3 on the Iranian Question was the first ever adopted without a full Council voting.) Between 14 January and 8 August 1950, the Soviet Union was likewise absent in protest over the continued membership of the Republic of China (Taiwan) instead of the People’s Republic of China, yet the Security Council continued to function.

Another example, perhaps more closely resembling the current situation if no substitute candidate is identified and elected by 31 December 2013, took place as a result of the 1979 elections for the Security Council. At the time, Colombia and Cuba were both contesting the GRULAC seat yet after 148 rounds of inconclusive voting it was clear that come 1 January 1980 there would be an unoccupied Council seat. At this point, the UN Legal Counsel determined that while “the failure of the General Assembly to elect a non-permanent member of the Security Council would be inconsistent with Article 23 of the Charter, such an act of omission could not produce legal consequences for the functioning of the Security Council, which was the organ primarily responsible for international peace and security. In such a situation, decisions taken in accordance with the relevant provisions of Article 27 of the Charter would constitute valid decisions.”

While there were differences among Council members at the time over the legality of the Council meeting with less than 15 members, as well as concerns about whether its decisions on questions of international peace and security would be challenged, the Council held four meetings between 5 and 7 January 1980 with only 14 members. Mexico was finally elected as a consensus candidate on 7 January after Colombia and Cuba withdrew, following 155 rounds of voting.

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