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Elected member influence in the United Nations Security Council

Published online by Cambridge University Press:  28 November 2019

Jeremy Farrall*
Affiliation:
ANU College of Law, 5 Fellows Road, The Australian National University, Acton ACT 2600, Australia, Email: jeremy.farrall@anu.edu.au
Marie-Eve Loiselle
Affiliation:
UNSW LAW, UNSWSydney NSW 2052, Australia, Email: m.loiselle@unsw.edu.au and c.michaelsen@unsw.edu.au
Christopher Michaelsen
Affiliation:
UNSW LAW, UNSWSydney NSW 2052, Australia, Email: m.loiselle@unsw.edu.au and c.michaelsen@unsw.edu.au
Jochen Prantl
Affiliation:
Asia-Pacific College of Diplomacy, 130 Garran Road, The Australian National University, Acton ACT 2601, Australia, Email: jochen.prantl@anu.edu.au
Jeni Whalan
Affiliation:
School of Political Science and International Studies, University of Queensland, Brisbane St. Lucia, QLD 4072, Australia, Email: jeni.whalan@gmail.com

Abstract

This article reassesses how members of the UN Security Council exercise influence over the Council’s decision-making process, with particular focus on the ten elected members (the E10). A common understanding of Security Council dynamics accords predominance to the five permanent members (the P5), suggesting bleak prospects for the Council as a forum that promotes the voices and representation of the 188 non-permanent members. The assumption is that real power rests with the P5, while the E10 are there to make up the numbers. By articulating a richer account of Council dynamics, this article contests the conventional wisdom that P5 centrality crowds out space for the E10 to influence Council decision-making. It also shows that opportunities for influencing Council decision-making go beyond stints of elected membership. It argues that the assumed centrality of the P5 on the Council thus needs to be qualified and re-evaluated.

Type
ORIGINAL ARTICLE
Copyright
© Foundation of the Leiden Journal of International Law 2019 

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Footnotes

*

Our research for this article was funded by the Australian Research Council, through ARC Discovery Project 150100300. We are grateful to Mareike Riedel and Daan Verhoeven for their exceptional research assistance.

References

1 Langmore, J. and Thakur, R., ‘The Elected but Neglected Security Council Members’, (2016) 39 The Washington Quarterly 99.CrossRefGoogle Scholar

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3 Art. 27 of the Charter provides that:

  1. 1.

    1. Each member of the Security Council shall have one vote.

  2. 2.

    2. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.

  3. 3.

    3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.

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4 K. Mahbubani, ‘Permanent and Elected Council Members’, in D. M. Malone, B. S. Ugarte and S. von Einsiedel (eds.), The UN Security Council: From the Cold War to the 21st Century (2004), 253, at 256. Mahbubani critically points out that: ‘In the two years that I served as permanent representative on Singapore on the Council, our delegation made several procedural suggestions to improve the working methods of the Council. We expected a positive response. Instead we ran into a lot of resistance, especially from some of the P-5. We were initially puzzled until we heard the private comments of a P-5 permanent representative who expressed surprise that the “tourists” were trying to change the arrangements of the Council. This was a revealing comment. It showed that the P-5 believe that they “own” the Council. In their eyes, the E10 should make no claim to co-ownership, even if they happen to be elected by 191 member states of the UN.’ Ibid., at 259.

5 To date, the relative strength (from a procedural perspective) of the block of the E10 has not led to any ‘E7 veto’ practice.

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22 P. Nadin, UN Security Council Reform (2016), at 90.

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26 Letter Dated 9 November 2011 from the Permanent Representative of Brazil to the United Nations Addressed to the Secretary-General, UN Doc. S/2011/701 (2011), (hereinafter ‘RWP Concept Note’); see also Brazil’s address to the Council on Protection of Civilians in Armed Conflict, UN Doc. S/PV.6650 (2011), at 15–17.

27 UN Doc. S/RES/1973 (2011), at para. 4.

28 ‘Transcript of the Interview by the Russian Foreign Minister Sergey Lavrov to Bloomberg, 1 June 2011’, Embassy of the Russian Federation to the UK, 2 June 2011, available at www.rusemb.org.uk/press/112; E. Cody, ‘Arab League Condemns Broad Bombing Campaign in Libya’, The Washington Post, 20 March 2011, available at www.washingtonpost.com/world/arab-league-condemns-broad-bombing-campaign-in-libya/2011/03/20/AB1pSg1_story.html.

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33 Ibid., at para. 11.

34 Ibid., at paras. 11(f), 11(h), 11(i); see also Kenkel, K. M. and Martins, M. T., ‘Emerging Powers and the Notion of International Responsibility: Moral Duty or Shifting Goalpost?’, 10 Brazilian Political Science Review 1.Google Scholar

35 RWP Concept Note, supra note 26, at para. 11(g).

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37 Kenkel and Stefan, supra note 31, at 46; T. Benner, ‘Brazil as a Norm Entrepreneur: The “Responsibility while Protecting” Initiative’, (2013) Global Public Policy Institute Working Paper, at 4–7.

38 Kenkel and Stefan, supra note 31, at 53.

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43 ‘Background Note on the “Arria-Formula” Meetings of the Security Council Members’, UN Working Methods Handbook, available at www.un.org/securitycouncil/content/background-note.

44 ‘Arria-Formula Meeting with the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea (DPRK)’, What’s In Blue, 16 April 2014, available at www.whatsinblue.org/2014/04/arria-formula-meeting-with-the-commission-of-inquiry-on-human-rights-in-the-democratic-peoples-repub.php.

45 Ibid.

46 Letter Dated 14 April 2014 from the Permanent Representatives of Australia, France and the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc. S/2014/276 (2014).

47 See Provisional Rules of Procedure of the Security Council, UN Doc. S/96/Rev.7 (1983), Rule 9.

48 1945 Charter of the United Nations, 1 UNTS XVI (1945), Art. 27(2).

49 ‘The Procedural Vote from 1990 on’, Security Council Report, January 2019, available at www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/working_methods_procedural_vote-1.pdf, at 1.

50 Interview with former Australian diplomat, Canberra, 19 February 2016.

51 Ibid.

52 Letter Dated 5 December 2014 from the Representatives of Australia, Chile, France, Jordan, Lithuania, Luxembourg, the Republic of Korea, Rwanda, the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations Addressed to the President of the Security Council, UN Doc. S/2014/872 (2014).

53 Ibid., at 1.

54 ‘Meeting on the Human Rights Situation in North Korea’, Security Council Report, 19 December 2014, available at www.whatsinblue.org/2014/12/meeting-on-the-human-rights-situation-in-north-korea.php.

55 The Situation in the Democratic People’s Republic of Korea, UN Doc. S/PV.7353 (2014), at 2.

56 Ibid., at 3.

57 Ibid., at 3–21.

58 UN Doc. S/RES/1904 (2009), paras. 19–21 and Annex II.

59 See Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, [2008] ECR I–6351, which followed Case T-315/01, Kadi v. Council, [2005] ECR II-3649. For discussion see, inter alia, Bianchi, A., ‘Security Council’s Anti-Terror Resolutions and their Implementation by Member States’, (2006) 4 Journal of International Criminal Justice 1044 CrossRefGoogle Scholar; Michaelsen, C., ‘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 Google Scholar; Hovell, D., ‘Due process in the United Nations’, (2016) 110 American Journal of International Law 9 Google Scholar; Tzanakopoulos, A., ‘Theorizing or Negotiating the Law? A Response to Devika Hovell’, (2016) 110 AJIL Unbound 3.CrossRefGoogle Scholar

60 Briefings by Chairmen of Subsidiary Bodies of the Security Council, UN Doc. S/PV/5293 (2005).

61 Ibid., at 10.

62 Ibid., at 31.

63 Briefings by Chairmen of Subsidiary Bodies of the Security Council, UN Doc. S/PV/5375 (2006), at 25–6.

64 Threats to International Peace and Security Caused by Terrorist Acts, UN Doc. S/PV/5446 (2006), at 10–11, 14–16.

65 ‘Update Report No. 3: Strengthening International Law’, Security Council Report, 16 June 2006, available at www.securitycouncilreport.org/update-report/lookup_c_glkwlemtisg_b_1790887.php.

66 Strengthening International Law: Rule of Law and Maintenance of International Peace and Security, UN Doc. S/PV.5474 (2006), at 1, 5–8.

67 Ibid., at 11–15, 18–33.

68 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).

69 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 President of the Security Council, UN Doc. A/60/887-S/2006/331 (2006).

70 Ibid., at 62. A few months earlier Bardo Fassbender delivered a study commissioned by the UN Secretariat’s Office of Legal Affairs; 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’, 20 March 2006.

71 Letter Dated 4 August 2008 from the Permanent Representative of Belgium to the United Nations Addressed to the Secretary-General, UN Doc. S/2008/528 (2008).

72 Implementation of the Note by the President of the Security Council, UN Doc. S/PV/5968 (2008), at 28.

73 Briefings by Chairmen of Subsidiary Bodies of the Security Council, UN Doc. S/PV/6015 (2008), at 25.

74 Briefings by Chairmen of Subsidiary Bodies of the Security Council, UN Doc. S/PV.6128 (2009), at 27.

75 Briefings by Chairmen of Subsidiary Bodies of the Security Council, UN Doc. S/PV.6128 (Resumption 1) (2009), at 16 (emphasis added).

76 Briefings by Chairmen of Subsidiary Bodies of the Security Council, UN Doc. S/PV.6217 (2009), at 15.

77 Ibid.

78 See the Council Resolution, supra note 58, paras. 19–21 and Annex II.

79 See Hurd, supra note 7; Johnstone, supra note 21; I. Claude, ‘Collective Legitimization as a Political Function of the United Nations’, (1966) 20 International Organization 367.

80 Johnstone, supra note 21, at 196.

81 Permanent members also use these means of influence; see Adler-Nissen and Pouliot, supra note 8.

82 McDougall, supra note 39, at 74–7; Kenkel and Stefan, supra note 31, at 45.

83 Cox and Jacobson, supra note 18, at 394.

84 As explained in supra note 17, this article draws on interviews and workshops with former UN diplomats, UN staff, civil society representatives, and academics conducted during phase one of our Australian Research Council Discovery Project, available at www.scan-un.org.

85 See Schia, supra note 6.

86 Caron, supra note 6.

87 D. M. Malone, ‘Introduction’, in D. M. Malone (ed.), The UN Security Council: From the Cold War to the 21st Century (2004), 1, at 7.

88 E. Adler and P. M. Haas, ‘Conclusion: Epistemic Communities, World Order, and the Creation of a Reflective Research Program’, (1992) 46 International Organization 367.