Global Policy Forum

Open-ended Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council and Other Matters related to the Security Council

Letter submitted by the delegation of Italy on 5 July 2000, transmitting legal observations on the notion of permanent membership on the Security Council

During the third and fourth substantive sessions of the Working Group, several delegations expressed the view that it would be useful to have an in-depth discussion of the terminology and concepts being used with regard to the expansion of the Security Council.

There is a widespread perception that some proposals for Security Council reform use generic and often contradictory language. The problem with such ambiguities is that they erase substantial distinctions between proposals and treat radically different concepts as if they were the same. In order to make progress in our deliberations, we need to focus instead on defining fundamental and structural questions and avoiding confusion.

To this end, the Italian delegation has drafted a paper containing legal observations on the notion of permanent membership on the Security Council (see attachment). We would be grateful if the Bureau could circulate the present letter and its attachment as a contribution to the debate in the next session of the Working Group.

Attachment

Legal observations on the notion of "permanent membership" on the Security Council

1. Introduction

We highly appreciate the work of the Bureau of the Working Group on the reform of the Security Council in preparing the compendium (A/AC.247/2000/CRP.2/Rev.1). The document represents an excellent basis for facilitating the continued discussion, with the active participation of all Member States. According to the current programme of work, the compendium contains three distinct sections under the heading: "Expansion of the Security Council":

A. Total size of the enlarged Security Council
B. Increase in the permanent membership (including the issues of extension of the veto to the new permanent membership and permanent regional representation)
C. Increase in the non-permanent membership (including the possibility of an increase, for the time being, only in this category of membership)

Within each of these sections, the Bureau lists various proposals submitted to the Working Group, which have been commented on at length in previous sessions.

At this juncture, it is useful to assess the legal implications of some proposals that suggest that there could be an increase in the number of permanent seats. We must always keep in mind that the goal of our reform exercise is an expansion of the Security Council that responds to the need for more equitable geographical representation on and greater efficiency of the Council. Due consideration should also be given to the historic circumstances in which the Charter of the United Nations was adopted. To ensure that a wise political decision is made on the issue of expansion and that lasting and constructive results are achieved, every stage of the exercise on the reform must rest on a solid legal foundation.

Two particular aspects require careful assessment:

(a) The reference to a broad and generic category of "permanent membership" of the Security Council, with characteristics that are not necessarily recognized and/or regulated by the United Nations Charter;
(b) The related remark that several proposals included under the heading "increase in the permanent membership" entail, in reality, an enlargement of the Security Council by creating new categories of members that are not contemplated by the provisions of the Charter.

These aspects reflect misleading notions that would steer the reform process into a series of contradictions inconsistent with the need to reach general agreement on the crucial issue of enlargement.

2. Permanent membership or permanent members?

At present, the Charter of the United Nations recognizes only one well-defined type of permanent member of the Security Council — individual Member States whose names are inscribed in the Charter as permanent members, and who are endowed with a series of rights and privileges within the United Nations system, the most prominent of which is veto power.

Their status is defined as follows:

(a) Article 23, paragraph 1, names the permanent members of the Security Council as China (identified since 1971 as the People's Republic of China), France, the Russian Federation (which took the place of the former USSR), the United Kingdom and the United States. Article 27, paragraph 3, states that Council decisions on any question other than procedural matters are made by an affirmative vote of nine members, including the concurring votes of the permanent members;

(b) Still other provisions of the Charter grant a privileged status to permanent members. Article 47, paragraph 2, first part, establishes that the "Military Staff Committee" shall consist of the Chiefs of Staff of the five permanent members. Articles 108 and 109, regarding procedures for amending and reviewing the Charter, stipulate that amendments and alterations approved by the General Assembly can only enter into force after ratification by two thirds of United Nations members, including all the permanent members of the Security Council. Article 110 sets the procedures for the entry into force of the Charter itself;

(c) Further privileges are accorded to permanent members by General Assembly resolutions, such as General Assembly resolution 33/138 of 19 December 1978, on the election of the 21 vice-presidents of the Assembly. Others derive from the practice of the Organization, especially with regard to the uninterrupted participation of the permanent members in various principal and subsidiary organs of the United Nations (including the Economic and Social Council, the International Court of Justice and the International Law Commission).

The prominent position given to certain States results from their role in the historic events surrounding the foundation of the United Nations and justifying the large exception made to the principle of the sovereign equality of States. Since the selection of the permanent members in 1945 predated the adoption of the Charter, it does not establish criteria for assigning permanent seats in the Security Council. At that time, there was an assumption that the selection was pre-eminently political, in the sense that it was not subject to the scrutiny of the general membership. The opposite holds true for non-permanent members. Article 23, paragraph 1, second part, establishes that members of the United Nations shall be elected to non-permanent seats with due regard for their contribution to the maintenance of international peace and security, the other purposes of the Organization and equitable geographical distribution.

The state of being a permanent member is therefore defined solely in terms of the individual entitlement to the above-mentioned rights and privileges and not in terms of general, abstract criteria that justify the attribution of such a status. It is evident that the same concept of "membership" presupposes the existence of a set of objective features that characterize collectively all the members of the category. It is precisely the absence of such identifying features that makes the generic notion of "permanent membership" so hard to accept. The correct terminology would preferably be "permanent members". It follows that one cannot consider an increase in their number without automatically referring to the narrow definition in the Charter, which speaks exclusively of an individual status — and not of a membership — endowed with veto power.

3. Proposals for new categories of membership

The overwhelming majority of proposals listed under section B of heading II of the Bureau's compendium, devoted to the question of permanent members, do not provide for an increase in the number of explicitly named permanent members with the same entitlements as the five current permanent members. Instead, they refer for the most part to other options, such as adding new permanent members without veto power, new "rotating" permanent seats with or without veto power, and "regional permanent seats" within the Council. The list also contains a number of possible mixed solutions, such as allocating new permanent seats to both single Member States and regional groups, or new national permanent seats and non-permanent seats that have longer terms. Some proposals introduce concepts totally alien to the Charter, such as the distinction between industrialized and developing countries.

All these options represent substantial innovations to the Charter and in several cases correspond to the disposition of many Member States to be flexible and creative in order to achieve progress towards a general agreement. We wonder whether these proposals should not be treated in a separate section or sections of the compendium for the purpose of assessing the support of the United Nations membership of new formulas of expansion of the Security Council. This would indicate that their approval would lead to the creation of new categories of membership that do not exist in the current constitutional structure of the United Nations. Within this section or these sections, the same options could be examined on a distinct and individual basis, also in order to prevent oversimplifications or ambiguities.

The variety of proposals for new categories of membership becomes even more evident in comparisons between an alleged but undefined "permanent membership" and the well-defined category of "non-permanent membership". The Charter clearly defines non-permanent membership not only in terms of its more limited rights but also in terms of the stringent criteria for selection stipulated under Article 23. Therefore, references to an "enlargement of the Security Council in both permanent and non-permanent membership" made during the debates within the Working Group suffer from a logical inconsistency, thinly disguising the lack of a sound legal foundation in the Charter. They also clash with the evidence that one can only use the expression "permanent members" of the Council in a narrow sense and in accordance with the current provisions of the Charter, particularly Articles 23 and 27.