posted on Sun 22 Feb 2015 5:35 PM
Council Ministerial Open Debate on the UN Charter

On Monday (23 February), the Security Council will have a ministerial-level open debate on the UN Charter where Secretary-General Ban Ki-moon will brief and member states are expected to reflect on the history of the Charter and reaffirm their commitment to the purposes and principles of the Charter. China, as president of the Council this month, initiated the open debate to mark the 70th anniversary of the founding of the UN and to commemorate the end of World War II. China’s Foreign Minister Wang Yi will preside and about ten Council members are expected to be represented at ministerial level.

China’s concept paper suggested areas members might wish to focus on during the open debate (S/2015/87). The concept paper highlighted upholding the principles of sovereign equality and non-interference in the internal affairs of states, committing to peaceful settlement of international disputes, upholding democracy and rule of law and pursuing development and cooperation.

With such a wide topic and some 80 speakers expected to participate, it seems likely that members will cover a much broader set of issues. One theme that may emerge during the debate is how the Council can adapt to a world that has changed since the Charter was adopted in 1945. At that time it was assumed that the UN would be dealing with inter-state conflicts. However, under article 39, the Council has the flexibility to determine what constitutes a “threat to the peace, breach of the peace, or act of aggression.” Today most of the Council’s agenda involves situations where the threat to international peace and security comes in the form of intra-state conflicts. While emphasising the importance of sovereign equality, some members may stress the need for the Council to find better ways of dealing with today’s threats such as rebel and terrorist activity as well as governments who are unwilling or unable to protect their civilians or are in fact a primary driver of conflict in their own territory. In addition, over the years threats to international peace and security have expanded to include violations of human rights and humanitarian law, violations of democratic principles, proliferation of weapons of mass destruction, and most recently health crises like Ebola, providing new challenges to the Council.

Council members may focus on the powers given to the Council in the Charter and how they have been used in carrying out the Council’s primary responsibility for the maintenance of international peace and security. (Four of its chapters and 33 of the 111 articles of the Charter are devoted to the Council. Chapter V covers the composition of the Council, while Chapters VI to VIII articulate the different powers, and tools available to the Council in maintaining international peace and security, i.e. adjustment or settlement of disputes, enforcement action and regional arrangements.)

While the Charter has only been amended three times, with the first set of amendments related to the Council’s enlargement from 11 to 15 members, over the last 70 years there have been creative uses of the Charter which have provided the Council with the tools to perform its job of maintaining peace and security. For example, Article 43 envisaged a form of collective security through members making armed forces and facilities available to the Council but was never realised. Instead, out of the need for the UN to have some sort of military capacity, the concept of peacekeeping was born and has over the years has grown to involve peacemaking, peacebuilding and peace enforcement.

However, it has been some years since the Council has used the Charter in an innovative way to create new tools that could help in its work. Keeping in mind the need for more creative solutions to today’s problems, some members may refer to options under Article 41 which give the Council the right to decide on measures not involving the use of armed forces. While this has been most commonly manifested in the use of sanctions, some members may question the effectiveness of sanctions on groups which are currently on the Council’s radar such as Boko Haram and ISIS and suggest the need to explore other options. On the other hand other members are likely to take a cautious approach to innovative ideas and stress the importance of respecting states’ sovereignty and territorial integrity as well adhering to international law.

Over the years, members such as China and Russia have made it clear that they are not particularly keen to have the Council take action under Chapter VII, especially in relation to authorising the use of force. It is possible that these members may focus on the need to make better use of the Council’s Chapter VI or conflict prevention and resolution powers. While the Council has held numerous debates on conflict prevention, over the years it has gotten less involved in actual mediation or negotiations aimed at preventing or ending conflicts. In the early years following the creation of the UN, the Council had more direct involvement in resolving conflict. Over the years, using Article 34 of the Charter which gives it the competence to investigate, the Council has established bodies or committees to investigate disputes for example on the situation between Angola and South Africa in 1985 and in the former Yugoslavia in 1992. However, there are times where the more direct involvement of the Council may have a significant impact on preventing conflict or resolving a dispute. Some members may raise possible ways of having greater Council involvement in such situations, including through more strategic use of field visits.

Members may also raise the importance of Chapter VIII in relation to cooperation with regional organisations. In recent years the Council’s relationship with regional organisations, particularly the African Union, has strengthened and deepened. Members may suggest ways of developing these relationships further. There may also be references to the involvement of these organisations in peacekeeping operations and if this is a concept that needs to be developed further.

It is likely that the larger UN membership may touch on the idea of UN reform and enlargement of the Council, which would require amending the Charter. With situations like Syria in mind the use of the veto may also be raised, including the French proposal of having Council members commit to refraining from voting against Council action aimed at preventing or ending mass atrocities likely being highlighted by some members. Last year the use of the veto led to the Council’s inability to influence the March 2014 referendum on Crimea and Sevastopol and to refer Syria to the ICC.
In this context it is possible that some of the membership at large may touch on resolution 337 A (V) or “Uniting for Peace” which provides that the General Assembly can take initiative from the Council when lack of unanimity of the permanent members blocks the possibility of Council action in performing its primary responsibility of maintenance of international peace and security.