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Permanent Mission of the Republic of the Philippines to the United Nations
Thank you, Mr. Chairman,
The Philippines congratulates you for your inexhaustible energy. It appears to us that you are getting stronger, even happier. We would like to believe that the success you have so far accomplished in the intergovernmental negotiations on Security Council reform is giving you unusual vim, vigor and vitality. This gives us the acronym VVV – triple V – for triple victory. Of course this could not have been made possible without the equally inexhaustible energy of the Member States whose constructive participation and cooperation, as well as flexibility, could lead us to this victory. May we be inspired with even a hope for that victory as we begin today’s discussion on the last topic for the first round of the intergovernmental negotiations on Security Council reform – the relationship between the Security Council and the General Assembly. This aspect of Security Council reform can easily qualify as the most important, not only because it ties up the deliberations in the past two months, but also because we will now deal with the powers of two main organs of the United Nations and re-examine the present allocation of powers to them for the purpose of vesting to each of them such powers as should rightfully appertain to it in connection with some issues, taking into account its primary jurisdiction, authority and functions.
The main objective of this exercise is to revitalize the General Assembly and locate at its most proper place the Security Council, by, inter alia, eliminating unnecessary tensions between the General Assembly and the Security Council spawned by debates and discord on the issue of jurisdiction, power and authority.
I. No one may dispute the fact that the General Assembly is the biggest and the most prestigious legislative body in the world today, composed of 192 Member States which act together on the basis of the principle of sovereign equality mandated in paragraph 1 of Article 2 of the Charter. On the other hand, under Article 24 of the Charter of the United Nations, the Security Council is, for all legal intents and purposes, an agent of the General Assembly as it merely exercises a delegated authority or a part of the sovereignty of each Member State and only insofar as the primary responsibility of maintaining international peace and security is concerned. In that respect, it is even circumscribed by the opening clause of Article 24: “In order to ensure prompt and effective action by the United Nations”. In short, Member States as the principal, through the General Assembly, retain the residual power to act immediately on any issue it wants to consider including that involving threats to international peace and security. This becomes critically necessary when the required action on or response of the Council to such threats may be delayed, frustrated, aborted or prevented by the use of the veto power or even by a threat of its use. We should never allow the principal – the General Assembly – to be held hostage by the delegate or agent.
Accordingly, the Philippines, in its Paper with set of detailed reform proposals transmitted to the President of the General Assembly on 14 February 2009 and to the Permanent Missions on 16 February 2009, proposes amendments to the Charter of the United Nations which will, inter alia, remove restrictions on the power of the General Assembly to take such actions or adopt such resolutions as may be necessary. These are:
1. Amendment of paragraphs in Article 12 of the Charter:
(a) to remove from its first paragraph the phrase that prohibits the General Assembly from making a recommendation with regard to a dispute or situation being considered by the Council unless the Council so requests; and vesting, instead, the General Assembly the authority to make such recommendation if it so decides.
(b) to remove from the second paragraph the requirement of the consent of the Security Council before the Secretary-General shall notify the General Assembly at each session of any matter relative to the maintenance of international peace and security which are being dealt with by the Council or before doing so immediately after the Security Council ceases to deal with such matters.
2. Amendment of Articles 10 and 11 of the Charter to delete restrictive references to Article 12, i.e., deletion of the phrase “except as provided in Article 12”.
II. On another point. The General Assembly must be given full power or authority to appoint the Secretary General. Article 97 of the Charter deprives it of that. It can appoint one only upon “recommendation of the Security Council”. This power of the Security Council relegates the General Assembly of 192 Members into a mere rubber stamp of the Security Council of only 15 Members, which as earlier pointed out, is a mere delegate of the GA and only for the limited purpose demarcated in Article 24. Until now I cannot find the reason or logic for this restriction on the power of the GA, especially considering the fact that the Members of the Security Council are themselves Members of the GA.
Thus, to put it more bluntly, this restriction is in fact another form of a veto, which may be called a class veto, that is, a veto this time exercised by the Council itself by a vote of at least a majority, and not by one Permanent Member thereof as in the case of veto under Article 27.
Thus, in its Paper of detailed reform proposals earlier mentioned the Philippines proposes to amend Article 97 of the Charter by deleting therefrom the restriction clause “ upon the recommendation of”, and substituting it with “ in consultation with”.
III. Another undemocratic and inequitable practice that must be eliminated or abandoned is that of granting members of the Security Council two votes each in the election of members of the International Court of Justice (ICJ).
On the basis of the principle of sovereign equality (par. 1, Article 2 of the Charter), each Member State is entitled to only one vote in every instance in elections in the principal organs of the United Nations and its principal committees, as well as in its subsi diary bodies, funds or programmes. Unfortunately, because of the interpretation of Article 4 of the Statute of the International Court of Justice which is based on the Statute of the Permanent Court of International Justice, members of the Security Council are each entitled to two votes – one as member of the General Assembly cast in the GA, and the other as member of the Security Council cast in the Council in simultaneous elections – in the election of Judges of the International Court of Justice. This gives the Security Council, composed of only fifteen members, the ten Non-Permanent members of which are elected by the General Assembly, the right to have another vote, which in effect is a restriction of the sovereign voice or will of at least the absolute majority of the General Assembly because the candidate has to win in both the General Assembly and the Security Council. This is totally unacceptable under the precepts of democracy, equality, justice, fairness, equity, and the Rule of Law. The practice could also lead to a detestable situation where in the process of lobbying for votes, a Member of the Security Council, to accommodate a candidate or for any reason whatsoever, may split its vote by voting for one candidate in the GA and another candidate in the Security Council. Or, a member in the Security Council may wage a war against a candidate in the Security Council, and defeat that candidate even if the latter obtained an overwhelming majority in the GA. This is another species of a class veto.
Thus, the Philippines, in its Paper earlier mentioned, proposes that members of the Security Council should have only one vote each in the election of Judges of the ICJ, which may be cast either in the Security Council or in the General Assembly in the election called for the purpose. If cast in the Security Council, the Members of the Security Council shall no longer be allowed to vote in the General Assembly, and vice-versa.
To achieve this, Rule 40 of the Provisional Rules of Procedure of the Security Council should be amended by adding thereto a second sentence reading as follows:
“It shall, however, be understood that in the elections of members of the International Court of Justice, the members of the Security Council shall each have one vote which, upon resolution by the Security Council made at least two months before the election and communicated forthwith to the General Assembly, may be cast during the election in the General Assembly, or in a separate election in the Security Council simultaneously done with that in the General Assembly the results of which shall be forthwith be reported to the latter.”
IV. Finally, Mr. Chairman, the Philippines submits that, in recognition of the primary jurisdiction and plenary powers of the General Assembly and the principle that the Security Council is its mere delegate under Article 24 of the Charter, and in that regard the General Assembly has not surrendered its residual powers, the General Assembly must be expressly vested the power to override or overturn, by a vote of an absolutely majority of its Members, any veto exercised or cast in the Security Council.
History is witness to the fact that the veto power is susceptible to abuse or misuse. The threat alone to use it delays or hampers action on crucial issues involving threats to international peace and security.
Such power to override the veto could also be conferred on the Security Council itself under a requirement of a bigger number of votes, say 2/3 of its Members.
For this purpose, Article 27 of the Charter should be amended by adding another paragraph – which would be paragraph 4, to read as follows:
4. A negative vote of a Permanent Member of the Security Council cast on decisions covered in the immediately preceding paragraph may be overturned or set aside by the vote of an absolute majority in the General Assembly or by the Security Council itself by a vote of two-third of its Members.
Mr. Chairman, the Philippines submits that these few changes will accomplish the major objective alluded to earlier.
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