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Participation of Colombia in the United Nations During the Period 1945-1995

Chapter IV:

Reform of the Charter

 

The movement to reform the Charter began even before the San Francisco Conference. As is well known, the great powers had already taken a stance with respect to how the new world organization ought to be and at previous conferences, especially at Yalta and Dumbarton Oaks, had defined these aspirations concretely. The only substantial change achieved at San Francisco was acknowledgment of Regional Organizations and the offer of a summons to a conference for possible revision of the Charter following a lapse of ten years. The Charter establishes a difficult mechanism for its modification, which is contained in Article 109, and states:

"1. A General Conference of the members of the United Nations for the purpose of reviewing the present Charter may be held at a date and place to be fixed by a two-thirds vote of the members of the General Assembly and by a vote of any nine members of the Security Council. Each Member of the United Nations shall have one vote in the Conference. 2. Any alteration of the present Charter recommended by a two-thirds vote of the Conference shall take effect when ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations including all the permanent members of the Security Council. 3. If such a Conference has not been held before the tenth annual session of the General Assembly following the coming into force of the present Charter, the proposal to call such a Conference shall be placed on the agenda of that session of the General Assembly, and the Conference shall be held if so decided by a majority vote of the Members of the General Assembly and by a vote of any seven members of the Security Council."

No substantial matters have been reformed in the Charter in its fifty years. Four articles have been amended so far, articles 23 two items, once in 1965 to increase the number of members on the Security Council from 11 to 15 and the number of affirmative votes needed to make decisions on procedural questions from 7 to 9. In the same year articles 27 was modified when the number of votes needed to make decisions on all other questions was raised to 9, including the affirmative vote of the five Permanent Members. In 1965 article 61 was modified to increase the number of members on the Economic and Social Council form 18 to 27, and then in 1973 this number was expanded to 54.

From the very beginning, treaty experts such as Hans Kelsen made a series of observations as to eventual downfalls and incongruencies in certain articles. In the case of Colombia, the most fervent manifestation form the beginning was its opposition to the veto, a position it has reiterated before the General Assembly and in the Security Council throughout a half century.

Among Colombian treaty experts, Jesús María Yepes posed the need for some reforms such as abolition of the veto (Art. 27); that of outdated Article 53, clause 2, that speaks of enemy countries; the need for a superior and impartial authority that must be the International Court of Justice to define the reserved dominion of the State when some member invokes this principles to exclude action by the UN in a matter that has been submitted to its consideration, according to articles 2, clause 7; the need to modify requirements for the admission of new States, which implies suppressing from article 4 the expression referring to the fact that States requesting admittance to the Organization should be lovers of peace, because we cannot conceive of a State that would confess otherwise and this characterization could give rise to the exclusion of States, based on mere political or philosophical reasons. In reference to this same article 4, it was proposed that the requirement that the States "accept the obligations stipulated in this Charter", should be eliminated as more than obvious.

Fifteen years after the founding of the United Nations, the number of members had grown notably, especially as a result of the decolonization process in Asia and Africa and the admission of new States into the Organization. The need to expand the number of non-permanent members in the Security Council and the Economic and Social Council as then posed. The permanent members of he former had no interest in the reform, given that they were solidly installed, while on the other hand the new countries of Asia and Africa wanted greater representation. In this process Colombia took and active role. In 1956, some Latin American delegations, Colombia among them, proposed the inclusion of these topics in the program for discussion at the Eleventh Session of the General Assembly, but due to opposition from the Soviet Union and its allies, they decided to request that the matter be included on the agenda for the following Assembly. Actually, the Soviet Union was not opposed to the representation of new countries, but argued that it was impossible to reform the Charter while Communist China was absent from the Security Council. The Afro-Asian countries began to orient their activities toward a reform of the Charter so as to allow more seats or, alternatively to proceed to a readjustment in representation in order to achieve a larger quota according to geographic distribution. This second option notably jeopardized the Latin American countries, whose proportion would decrease. Colombia insisted on the need to reform the Charter to expand the number of members and pointed out that the reform procedure, according to article 108, was gradual, as stated by delegate Hugo Escobar Sierra, given that,

"… on the one hand, the simple majority both on the Commission and the Assembly could legally approve the reform. Then there would be a second stage, the ratification of these, including all permanent members of the Security Council. The first step could thus be taken, and therefore a logical and just acknowledgment of the principle of fair geographic distribution, in honor of the African States. This procedure left the rights of the permanent members of the Security Council intact without undermining them and they would have three years (the period for ratification) to weigh the situation and find solutions to the greater political problems, such as the acceptance of Communist China".

Colombia supported the idea of holding a conference for the purpose of revising the Charter in order to increase the number of seats on the Security Council and the Economic and Social Council and to give adequate representation to all of the regions, since what was happening constituted an "inexcusable lack of fairness with the African States that represent a very important portion of this Assembly", in the words of Ambassador Germán Zea Hernández.

During his administration (1966-1970) President Carlos Lleras Restrepo took a great interest in the Colombian delegation's acting in favor of a UN Charter reform. Lleras Restrepo was the first Colombian president to visit the United Nations in New York during the exercise of his functions and he set the precedent of our heads of state addressing the Organization. In his speech to the Security Council he expressed the need to "… speak of a great reform to be opened by the United Nations without reserve to all countries of the world that would establish more effective means of providing peaceful solutions to conflicts, that would give this international organization a truly compelling power".

In accordance with instructions from President Lleras Restrepo, the Colombian Ambassador to the UN, Juaquín Vallejo Arbeláez, in a letter dated November 21, 1969, addressed to the president of the General Assembly, requested that the topic of "formation of a Special Committee in charge of examining initiatives aimed at the revision of the UN Charter" be included. In the memorandum explaining this request, he stated it to be a very important question and that the twenty five year anniversary of the Organization was propitious moment to proceed with the reform. The Colombian project with the support of Brazil, Costa Rica, the Philippines, Haiti, Japan, Liberia and Nicaragua became Resolution 2697 (XXV). In his addresses to the General Assembly, Alfonso López Michelsen, Minister of Foreign Affairs, presented the Colombian theses on the need for a reform of the San Francisco Charter and the orientation it should take. With respect to the veto, he stated on October 11, 1968:

"How many times have we heard it said in a sarcastic tone that the security of a great State with universal commitments cannot depend on the will of this or the other small country? This is true. But, the veto was created precisely in order to guarantee the super powers their freedom of action within a legal framework, which allows them not to automatically submit themselves to the majorities, without having to appeal to the law of the jungle… the United Nations Organization was not the fruit of a conspiracy among the small States to place the great powers under their tutelage, but rather it was these latter that sovereignlly establish the rules of the game in Yalta and Dumbarton Oaks, reserving to themselves certain benefits, such as the right to veto and they invited us to become partners. Why should they be surprised then that the weak nations not only make use of the By-laws that were proposed to us, but that we also occasionally raise our voices to demand that those who made the rules obey them".

Addressing himself to the same Assembly on September 26, 1969, Minister López Michelsen again insisted on the topic of reform, reminding how the world had changed over the last 25 years and how, nevertheless, the United nations Organization continued to be the same, governed by a Charter drafted a half century before. He indicated the outdatedness of measures such as that which still maintained the description of "enemy" states and highlighted the importance of reforming the functions of the Security Council and of the office of Secretary General itself. For these reasons he stated that Colombia proposed to request the Extraordinary Conference contemplated in Art. 108, for the reform of the Charter.

In spite of opposition from the powers, Colombia´s diplomatic action, with the support of the Afro-Asian countries and the non-aligned group, even though Colombia did not yet belong to this group, achieved approval of Resolution 2552 (XXIV) aimed at study of Charter reform. At a lecture given by López Michelsen as Minister of Foreign Relations at Canning House in London on May 6, 1990, he referred extensively to the need for reform of the United Nations and among others made the following proposal: for the admission of new members, in addition to the conditions established in article 4, the requirement could be added that the country in question obtain a prior qualification from the International Court of Justice and thereby eliminate the requirement described as "a lover of peace". In this way it would be possible to eliminate the admission procedure based on political qualification that in practice was being used to prevent the admittance of certain countries ad it would be replaced by a legal procedure which would imply the possibility of signature and ratification by any State forming part of the community of nations. For Minister López Michelsen,

"… the implications of such and amendment are undeniable. The old quarrel between South Korea and North Korea, eventual recognition of the two Vietnams, ratification by the International Court of Israel´s status as a state, denied by the Arab countries, without mentioning the judicial unraveling of the knotty problem of Continental China and Taiwan, would mean a new era for the Organization in which it would put its efficacy in preserving peace to trial".

Alfredo Vásquez Carrizosa, President Misael Pastrana Borrero´s Minister of Foreign Affairs (1970-1974), consistently continued with the task of reforming the Charter. In his first speech to the XXV session of the General Assembly, he devoted an important portion of his speech to the topic of By-law revision. He stated that Colombian aspirations in this field were more modest and realistic in order to place themselves within the realm of possibilities: "We accept as a fact the debatable mechanism of the Security Council, but we anxiously see how the decadence of the procedures and institutions established in the UN Charter becomes more notorious year after year." He asserted that we maintain the provisions of Chapter VIII of the Charter (on Regional Agreements) without modification and recommend a more active participation by the International Court of Justice in the work of peace, given that said Court was found to be marginated from the collective security system.

In his presentation to the Assembly the following year, Minister Vásquez Carrizosa insisted on the same topics: the need for greater utilization of regional agreements, on which he stated that in San Francisco it had been necessary to launch a great battle to include, because at that meeting they had been considered a dangerous exception to the general rules of collective security, but "…now we saw the opposite phenomenon. Today nobody doubts the advantage of resorting, in first instance, to the most directly interested countries", through regional agreements. With respect to the International Court of Justice, he thought, it should play a ore active role in maintaining peace and should also take up other matters. He put forth the novel idea that this organism could be granted special jurisdiction in the safeguarding of human rights throughout the world:

"The International Court of Justice as a protector of human rights would perform then a fundamental role in one of the areas of International Law, where it can draw on the valuable experience of the European Court established by a few Western nations. This competence would be open to acceptance by the States and would, little by little, form a new body of law on the application of United Nations International Human Rights Agreements, which otherwise run the risk of remaining a pious manual of good intentions with no application to reality… We must move on without delay from the stage of pronouncements to the jurisdictional stage in that which makes principles so essential for the peace of the rights that support man´s dignity, freedom and personality".

In this third speech to the Assembly in September, 1972, Minister Vásquez Carrizosa defined Colombian aspirations with respect to reform of the Charter, which were the following: elimination of obsolete measures such as the mention of "enemy states" in article 53; strengthening of the powers of the Secretary General, so that he/she may request a meeting of the Security Council whenever deemed opportune; to encourage internationalization of the UN and make admittance a right for the States instead of a gracious act "as up until now"; to consider the status of "Associate States" in order to solve the problem of the "Mini-states"; to revise the regulations of the Security Council,

"… so that the unanimity of the five permanent members should not be obligatory in the case of the simple election of investigation committees of humanitarian problems; establishment of a Corps at the service of peace not as a combat force; updating of the functions of the Tutelage Council, and a closer link between the International Court of Justice with peace tasks, as well as the formation of specialized courts or those for matters of a regional nature." On June 19, 1972, Ambassador Augusto Espinosa Valderrama sent the Secretary General of the Organization a memorandum with "Opinions and suggestions on the revision of the United Nations Charter". In relation to these Colombian proposals, Ambassador Espinosa Valderrama issued a statement in which he asserted: "…as seen, we are not inviting to a vote on revision of the Charter. We have limited ourselves to something much more modest which consists of putting into practice a recent measure by the Assembly to the effect of considering some initiatives that were sent to the Secretary General by virtue of a resolution approved by the great majority during the twenty-fifth session…Nobody would seek to `divide the Organization into poor and rich' to use the words of the Minister of Foreign Relations of the USSR, Mr. Gromyko. It does so happen that some States wish to maintain the "status quo', as if nothing had changed over these 27 years.".

United Nations procedures are slow and for that reason treatment of Charter reform has been so prolonged. Furthermore, there are a multitude of interests at stake. Those of the permanent members of the Security Council that do not want to lose or see their privileges diminished, regional interests and the permanence of the power block problems resulting from the "Cold War" for forty-five years. Thus the subject of reform, according to the political moment, becomes more active or stagnates or vegetates in the commissions. During the General Assembly of 1974, a resolution proposed by Colombia was approved to establish and ad hoc committee on Charter reform, which was approved as Resolution 3349 (XXIX) only after arduous debate. This ad hoc committee met at United Nations headquarters from July 28th to August 22, 1975. The brevity of the meeting impeded a deeper and broader examination of topics under study. During the debate, the Alternate Ambassador, Rafael Rivas Posada, acted as spokesperson for Colombia. He stated that Chapters XI and XII of the Charter were being drained by the phenomenon of decolonization. Chapter XIV suggests the convenience of the International Court of Justice having a much more active role and coercive power in the conciliation of disputes. Chapter XV devoted to the Secretariat warranted modifications. He stated that Colombia proposed that when doubts arose in the Security Council or the General Assembly as to the nation status of a country aspiring to enter the Organization, it should be the Court that decides. Colombia proposed the creation of the status of "Associate State" for micro states without the pecuniary obligations and with the same rights, except that of electing of being elected. With respect to the veto, he proposed it should not be admitted for appointments of investigation committees of to inquire about the facts or act for humanitarian ends. Regarding the International Court of Justice, Ambassador Rivas Posada said that Colombia attributed maximum importance to the activity of the Court as the supreme judical body of the United Nations.

At the end of 1976 the topic of Charter revision was one of the most debated at the meeting of the Sixth Commission. The majority of the Eastern European countries were openly opposed to revision and even to and extension of the existence of the Special Committee for reform. In the end, Resolution proposal A/C6/31/L.6, sponsored by Colombia was approved on December 22, 1976, although with a clarification of their votes by the Soviet Union, France, Ukraine, Byelorussia and Poland. During the discussion on this issue in the Sixth Commission delegate Enrique Gaviria Liévano spoke in order to support Colombia's observations.

With the fall of the Berlin Wall and dismantling of the Soviet system, the Cold War and the bipolar division of the world between the two great powers disappeared. At the same time, the defeated powers of World War II, Germany and Japan, who are outdatedly referred to as the enemy states in the Charter, are now first rate powers and have been members of the United Nations for some years now. On the other hand, the number of members in the Organization has increased over its fifty years from 50 to 185, decolonization took place with its effects on the majority of the world population and developing countries have experience profound changes and interesting phenomena in the area of economic development that have made some of these countries into intermediate powers. For this reason, a reform of the Charter and very special revision of the composition and functions of the Security Council are ever more urgent, particularly given that this body has awakened from the immobility it was condemned to for tens of years by the Cold War and abusive use of the veto, to a kind of Hyperactivity during the last five-year period, assuming functions that in the opinion of many have never been assigned to it. In this context, the discussion of reform has been revived within the General Assembly and, as is obvious, in the General Assembly Work Group as to the Reform of the Security Council.

Colombia has very actively participated in this process and its position has been expressed through the six presentations made by Ambassador Luis Fernando Jaramillo in 1993 and 1994 to the General Assembly and before the Work Group for Reform of the Council, and which have been compiled in a brochure. Ambassador Jaramillo begins by criticizing the functioning of the Security Council and by showing how other system bodies have been weakened as the Council is strengthened, as well as its tendency to arbitrarily broaden the definition of what constitutes a threat to peace.

"In recent years, this concept has come to include situations of the most varied type. For example, decisions on human rights, the treatment of which pertains to the Human Rights Commission, the Economic and Social Council and the General Assembly through its Third Commission. Likewise, in the area of humanitarian aid, the overlapping of political military questions and those of a humanitarian aspect, as a consequence of decisions made by the Secretary Council has seemingly resulted in more problems than solutions, exposing the Organization to severe criticism and wear and tear from international public opinion. At the same time, the Council has acted in the field of restoring democracy when this matter should correspond to action by the General Assembly or the corresponding regional organization. Meanwhile, the Council grants itself powers in the area of controversies of a juridical nature and on occasions of a bilateral nature that are clearly placed under the jurisdiction of the International Court of Justice in the Charter".

In reference directly to the reforms, the Ambassador referred to the veto and permanent representation on the Security Council, in the face of the possibility of new countries occupying those positions or being able to exercise the privilege of the veto. It was proposed that concrete proposals should be formulated in order to restrict the veto to Chapter VII (Action in the case of a threat to peace, a breakdown of peace or even to go beyond the Council by means of establishing recourse of appeal before the General Assembly. With respect to increasing the number of members of the Permanent Council, he stated that it could not simply be for the purpose of accommodating "certain preselected countries" and that "specific names" must be avoided. It is not the military, technological and economic capacity that constitutes the criteria for measuring the capacity to contribute to the Organization´s operations, given that even when this capacity is sufficient to enter the Council,

"…it cannot be interpreted as a call to belligerence, to military intervention and possession of powerful armies for armed action. It should rather be measured as the capacity for conciliation, peaceful solutions of controversy, exercise of diplomacy to remedy potential conflicts and guarantee the continuance of peace." In Ambassador Jaramillo´s speech of March 22, 1994 to the General Assembly Work Group on Reform of the Security Council, Colombia´s proposals as he presented them were in brief:

1. The power of veto must not be extended to more States, and to the contrary its use must be limited for current permanent members. 2. Increase in numbers of members of the Council should be limited to its non-permanent members and the character of permanent member should gradually disappear. 3. The possibility for reelection of non-permanent places could be considered. 4. The increase must be accompanied by reforms in the functioning and work methodology of the Council. 5. The final number of non-permanent new members on the Council is irrelevant. 6. The Charter should establish a procedure for the General Assembly to be able to change the composition of the Security Council without resorting to the existing complex mechanisms. 7. Acts by the Security Council should be regulated to ensure strict observance of the letter and spirit of the Charter.

We should add to the foregoing proposals that which was suggested at the General Assembly at the June 22, 1993 session to establish, "a body for constitutional control that will allow the legality of acts by United Nations bodies to be determined, particularly the acts of the Security Council". The current government of President Samper has maintained these same positions with respect to fundamental issues, as stated in documents published recently by the Colombian chancellery, which we quote in its pertinent paragraph:

"Colombia considers that an increase in the number of members on the Council must be done on the basis of just geographical distribution. Consequently, it should be open to two more countries form the developed world, as well as two countries for each region of the developing world (Latin America and the Caribbean, Asia and Africa). Any increase in the number of members on the Council can be done through non-permanent members. Reelection may be considered for some of the new positions as determined by the General Assembly on each occasion…The constituting thereby an anti-democratic mechanism. The increase in the number of members must not imply additional rights to veto. The use of the veto by the present permanent members of the Council should be eliminated. During the stage of limitation, a procedure for voting in the General Assembly to ratify of revoke it, analyze the multiple veto and the veto entrusted to decisions adopted on the basis of Chapter VII of the Charter could be considered".

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