Permanent Representative of New Zealand to the UN
Statement to the General Assembly Working Group on the Security Council
New York
5 June 1996
We are pleased that so many delegations have confirmed in their statements to this Working Group that the reform and modernisation of the Security Council is not only about its composition and voting rules, but must include also a substantive input, by the Membership as a whole, to the way the Council operates in practice -- its culture, its working methods and procedures.
The working methods and procedures of the Security Council are, of course, in the last analysis a matter for the members of the Council themselves. In this context, as is well known, New Zealand and Argentina, who have jointly sponsored document CRP.8, shouldered their responsibility, which has been shared by many other Council members past and present, to reform the working methods and procedures of the Council from the inside.
We took satisfaction at what was achieved and we congratulate the members of the Council who continue to carry forward this responsibility.
But it will come as no surprise to colleagues that, for both Argentina and New Zealand, we left the Council with a sense of disappointment about unfinished business. We came away convinced that the reform of the Council's working methods and procedures could not and should not be left to the members of the Council alone.
This conviction is firmly based in both law and politics.
At the political level our practical experience confirms certain pragmatic realities. The pressure of the day to day situations which the Council must deal with limits the capacity of Council members to devote time to reflecting on, or negotiating about, working methods. And it is right that the Council should place first priority on its substantive agenda.
This is where the broader membership of the United Nations, which includes many colleagues who have served on the Council, is well placed to make a responsible and informed contribution.
Our political experience also suggests that such contributions need not be seen as a competition with the Council. They can, if colleagues on the Council are willing, be seen as mutually reenforcing. That is why in document CRP.8 we have specifically identified our proposals as recommendations to the Security Council.
But let us also be clear about the political environment in which we are operating. If the issues raised in CRP.8 are addressed seriously and substantively in negotiations in this Working Group and included in any package dealing with reform of the Security Council, then they could be one important element in such a package, along with decision making and composition.
On the other hand, a failure to negotiate seriously and to substantively accommodate all these important issues will only further poison the negotiating well on other issues.
But as I indicated Mr. Chairman, our conviction is rooted not only in politics but also in law. Before focusing in detail on CRP.8 I would like to say a few words about the constitutional background to the issues we are dealing with.
I will start with Article 10 of the Charter which, I believe, clearly establishes the shared competence of the General Assembly on the issues we have raised. Article 10 provides: "The General Assembly may discuss any questions . . . relating to the powers and functions of any organs provided for in the present Charter and . . . may make recommendations on any such questions." The only limitation on the General Assembly's capacity in this regard is where the Security Council is actually exercising its functions in connection with international peace and security in the context of a specific "dispute or situation". Clearly that exception is not applicable with respect to the subject matter of CRP.8.
CRP.8 is therefore firmly based within the legal competence set out in the Charter for the General Assembly.
Article 24 is also relevant. It records that the members of the United Nations confer certain responsibilities on the Security Council and that, in carrying out its duties, the Council "acts on their behalf." This article, seen in conjunction with Article 10, describes a living relationship between the Council and those on whose behalf the Council acts. I call it a living relationship to emphasise the fact that, contrary to some current perceptions, it was clearly never intended by the drafters of the Charter that this should be a static arrangement, with functions or procedures and working methods of the Council permanently fixed in a box that the General Assembly could not touch. The Charter makes it clear that it was never intended that there should be a watertight seal between the Council on the one hand and the membership as a whole on the other hand.
Indeed, Mr. Chairman, the opposite is true. Article 24 describes a living contract with rights and responsibilities on both sides.
When the members of the United Nations agreed to this living contract, in which the Council could act on their behalf, they certainly did so with Article 10 in mind. But also they had other things in mind as well.
The Members of the United Nations, when they put together this dynamic contract, also had in mind Article 31, which says that members whose interests are specially affected may participate in the discussion of any question brought before the Security Council. So what was envisaged was clearly an interactive relationship.
In this context, Mr. Chairman, I draw attention to the fact that Article 31 confers on the Council the discretion to decide whether or not the question specially affects the member state. It does not contemplate any discretion at all on the part of the Council to exclude from participation a state whose interests are specially affected. Accordingly the Council may conclude that a state's interests are not specially affected. But the Council never considers this question at all. Instead it has adopted a working method which normally excludes all states from discussion. In this respect the Council's current practice is clearly deficient with respect to the provisions of the Charter.
But let us go one step further and look at Article 32. Where a member state is a party to a dispute it must be invited to participate. By contrast to Article 31, where there is a limited procedural discretion given to the Council, under Article 32 there is no discretion at all. Where there is a dispute the parties mustbe given the right to participate in the discussion.
The current working methods of the Council do not satisfactorily respect these fundamental elements of the compact contained in Articles 10 and 24. Indeed there is profound dissatisfaction with the Council's working methods in this regard. We do not have a genuinely dynamic or interactive relationship as envisaged in the Charter.
"Participation in discussion" is a sham. In many cases -- and Presidential Statements are the classic example -- participation is totally denied. And in most other cases, the word participation is devoid of practical meaning since substantive discussion of questions and disputes takes place almost exclusively in private in the Consultation Room. There is in effect no meaningful participation at all.
And when we look further into the Charter, we find that compliance with Article 44, which confers on troop contributors an even broader right, is still very far from being adequately complied with.
Mr. Chairman, the wider membership of the United Nations is now claiming their rights. And there can be no just or equitable reform of the Security Council unless these issues are dealt with. Firstly, the members of the United Nations are claiming their Charter given right to make recommendations from the General Assembly to the Security Council on the way it exercises its functions. Secondly, they are claiming back their rights of participation in the substantive discussions in the Council. And thirdly, they are claiming back their right to transparency in the workings of the Council.
Mr. Chairman, transparency is a word which is often misused in this house. But in this context I use it deliberately and within the context of specific legal provisions. Anyone who looks at the Provisional Rules of Procedure will rightly conclude that the Council was always intended to conduct the bulk of its business in the public eye. There are provisions for private meetings. But clearly they were not intended to be the norm. 50 years later, despite the enormously positive innovations in transparency and openness in the conduct of public business throughout the world, despite freedom of information in Government, despite the global communications revolution -- the Security Council has retreated into a dark hole like a clutch of frightened rabbits -- afraid to discuss anything of substance in public. This is a sham. It dishonours those who support open Government and democracy in other contexts. In this area the Council's working methods cry out for modernisation. Instead we are treated to arguments best suited to absolute monarchs and star chambers.
Mr. Chairman, I do not think that anyone in this room would seriously argue that the members of the Council should be prevented from consulting informally and in private, at times. As I have noted, there is provision for this in the Provisional Rules of Procedure. Furthermore the main committees of the General Assembly themselves convene in "informal informals" from time to time. But in the latter case, there is less of a problem of principle, first because the balance between closed and open sessions is much more reasonable and second because such informals are open ended and "participation" -- the key issue under Articles 31 and 32 -- therefore is not an issue. Where informals are open ended, anyone who has an interest which is "specially affected" or is a party to a "dispute" can readily attend.
For a limited membership body like the Security Council, which has been entrusted with certain functions on behalf of the whole, there is a responsibility not unlike a fiduciary trust. In such circumstances, it is particularly incumbent on a limited membership group -- especially one endowed with binding legal powers -- to comply and to be seen to comply, not only with the letter but also with the spirit of the various components of the overall procedural framework set out in the Charter. In our view, both the letter and the spirit require attention. That is the purpose of CRP.8.
Mr. Chairman, what we have tried to do in CRP.8 is address the issues in a practical way --
First Daily briefings. This is straightforward. The Council could institutionalise this practice following the precedent in Rule 55 of the Provisional Rules of Procedure.
Second Initiation of public meetings. We believe that there is a strong case for adjusting the current balance in the procedure of the Council so that it is easier for a member state, which wishes to raise an urgent matter of international peace and security, to get a meeting of the Council to hear its complaint. The present process is demeaning to states not members of the Council and reflects poorly on the trust conferred in Article 24.
Thirdly and Fourthly are the questions of Articles 31 and 32. I have already outlined what the Charter says. I am aware of the arguments that "informal consultations" are not meetings as that term is used in the Provisional Rules of Procedure. I think that argument is false. All the evidence of United Nations practice suggests the contrary. Just look at the listing in the Journal. Note also the provision of full conference services. If the consultations do not exist legally then how is it that they can be funded on the same basis as other regular meetings with full conference support and full budgetary provisions. Indeed, as anyone who has presided over meetings elsewhere in the House knows, the Security Council meetings including informals have first priority in allocation of conference services resources. If the informals do not exist legally then perhaps this priority should disappear. Mr. Chairman, anyone who has sat in the Informal Consultations knows that it is specious to suggest that these are not meetings as any normal persons would use that word. There are extensive debates in Council informals on the Secretary General's reports. Reviews mandated by legally binding resolutions are conducted -- sometimes exclusively -- in these meetings. It stretches credibility beyond belief to claim that legal outcomes can derive from non meetings.
Surely, Mr. Chairman, it is better for the Council to face up to current realities. The current practice is based on what six or eight years ago was a commendable desire to rectify some of the wrongs of the Cold War period. But clearly the pendulum swung too far in the opposite direction. Perhaps there was a valid need in the late 1980s and early 1990s for the Council members to learn how to work together, cooperating in an environment that was different from the past. But that need was long since gone by 1993 and 1994, when we experienced the Council informals at close hand.
We are not saying go back to the past and have all meetings in the public chamber. But what we are saying is that it is now time for the pendulum to shift back to a more moderate position.
We believe that the Council could devise working methods to permit states with specially affected interests or parties to a dispute to participate in the informal discussions of the Council in a manner that would not prejudice broader collective interests. The so called "Arria Formula" is not an acceptable alternative in such situations. To our mind, participation which meets the requirements of the Charter is only achieved when states covered by Articles 31 and 32 are able to sit on the same informal basis as the members of the Council, presided over by the Council President, and able to take a genuine part in the first round of general discussion of an issue.
We have no objection, at later stages of discussion, usually in the Council Working Group, when Council members begin to negotiate on a draft text, if at that stage the Council were to meet in private if necessary.
The last point I will make on this subject is that the argument about whether the consultations are or are not "meetings" is actually irrelevant. Because the rights of members of the United Nations are not governed in the end by the Provisional Rules of Procedure. Their rights and the obligations of the Council are set out in the Charter. And the Charter does not speak of participation in meetings. It speaks of participation in "discussion." And to my mind that comprehends the substance of discussion in whichever room it takes place.
Fifthly Point 5 of CRP.8 addresses the definition of what constitutes a procedural matter. In CRP.8 we have included a concrete proposal which draws on the excellent research in the paper presented by Egypt on behalf of the Non-Aligned -- Document CRP.9. It is proposed that the list of agreed procedural matters should be formalised.
Sixthly Public orientation meetings. In CRP.8 point six, we propose further elaboration of the decision in S/PRST/1994/81 of 16 December 1994 which was based on a commendable initiative by France for more open meetings and orientation debates. We suggest that these should become the norm, particularly when the Council takes up a generic report of the Secretary General. For a start, the sentence in PRST/81 that decisions would be taken on a "case by case basis" should be deleted. In this regard we are conscious of the time constraints and we have to say that we do not believe that there is a need, in all such circumstances, to always open a speakers list under Articles 31 and 32. Quite the contrary. There are many cases when this will not be necessary, particularly if reasonable arrangements are made as proposed in CRP.8 for cases under Article 31 and 32. The notion that the Council should only meet in public to hear others is not what the Charter or the Rules of Procedure envisage -- although there are occasions when obviously this is desirable and appropriate.
Seven
Information to member states. We think there is an opportunity to utilise modern technology with email and fax to advise all member states of the UN, at a designated point of contact, when texts of resolutions are put in "blue". This is not unduly onerous, particularly since the need would be determined by those states who designate a contact point. And we believe this proposal is not unreasonable, given the capacity of the Council to create at very short notice entirely new obligations binding under international law. Indeed, it is unreasonable in our view that member states have not had before now an effective system of notification to allow them to utilise their rights under Article 31 and 32.
Eight The forecast of work already describes in many instances the action taken by the Council during the previous month. It would be a relatively simple task, but one of great help to the membership, if the forecast was to record the action taken in each case covered in the preceding month forecast. Nine requests a simple elaboration of the current entries in the Journal.
Ten and Eleven relate to cooperation between the President of the Security Council and the President of the General Assembly. We believe this is entirely appropriate given the potentially concurrent responsibility of these two organs. It is a straightforward procedural proposal which we believe could be easily included as part of the preparation of the Programme of the Work by the President at the beginning of each month.
Mr. Chairman, my delegation and Argentina have identified some concrete proposals to elaborate some of the Cluster 2 issues. CRP.8 is not an exhaustive proposal. Other delegations may have additional ideas which we would welcome. We look forward to the discussion of the paper and stand ready to answer questions as they arise.
