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".
