United Nations Reform and Article 109

January 29, 2004

by Pat Orvis

The notion of United Nations reform did not begin one year ago with Washington's threat to make the world body irrelevant. Indeed, few institutions have taken their own pulse more regularly with an eye to self-improvement than the U.N. -- while changing only enough, as the maxim has it, "to stay the same," throughout its 58 years. For, as founding fathers of serious institutions have done throughout history, the drafters of the U.N. Charter foresaw that in the future their original ideas might require amendment. So, in 1945, they included in the Charter itself an article that one idealist or another periodically tries to revive, while others wish this article would just go away and newcomers (including ambassadors) increasingly admit they've never heard of it.

Article 109 of the U.N. Charter required that a general conference "for the purpose of reviewing the present Charter" be held within the world body's first 10 years. If such a conference was not held before the 1955 annual autumn session of the U.N. General Assembly, the Charter stated, a proposal to call such a conference would automatically take its place on the agenda of that year's 10th session of the General Assembly, where every member country gets an equal vote.

Review would then be mandatory -- but only if a majority of the then-76 members of the General Assembly (which today numbers 191) said so, together with any seven members of the Security Council's 11 members at the time. The seven-member requirement was later amended to nine members of the Security Council, which at present consists of fifteen member states: 10 that rotate every two years, in addition to the original five permanent members who possess veto power and, consequently, have the least interest in change. They are China, France, Great Britain, Russia and the United States.

To meet the requirements of Article 109, the General Assembly, during its eighth session in 1953, did make some technical preparations toward a review conference, but in 1955, General Assembly opinions were divided over when to hold such an event. The Assembly postponed it to a "more appropriate time," and established a committee to meet and report on it annually -- until 1967, when the committee met and reported as usual but was not invited to meet again, thus rendering obsolete the section of the article which made a conference mandatory, while nevertheless leaving the section on voting and ratification requirements still open to revival. The same two-thirds of the General Assembly and any nine members of the Security Council are still required to adopt charter amendments, but two-thirds of the General Assembly must also agree to bring the changes into force and these must now include the five permanent members of the Security Council.

Since that time, ad hoc committees too numerous to mention have been established to improve virtually every aspect of the U.N., from the General Assembly, Security Council and Economic and Social Council (ECOSOC) to global security, peacekeeping, and the rule of law in general. Indeed, even during the cold war, one thing on which the Soviet Union and Washington could always agree was the need to overhaul what they viewed as a bloated U.N. budget. More recently, the Millennium Declaration has set forth a broad range of concrete development goals intended by the world body to force itself to fulfill in particular its mandates on humanitarian issues like poverty, racism, child soldiers and violence against women. But none of these initiatives has binding authority, including a panel of eminent persons recently appointed by Secretary-General Kofi Annan himself to come up with recommendations also intended to move the review process forward. Such decisions are made by the member states in the General Assembly.

A glimpse of the challenges facing U.N. reform in any guise is suggested by this lament from one country's legal representative to what he calls the "never-ending working group" on reform of the Security Council, which is now entering its 10th year yet, and according to this participant, is "farther away from change than ever." Basically, the counsel said, requesting anonymity, two issues confront his committee: whether to make the Security Council bigger, or more effective.

If the former, would the new members be permanent or nonpermanent -- or even semi-permanent, as some have suggested? Would they have the veto? Would it become a matter of choosing, say, between Germany and France, or India and Brazil? And why, for instance, would Pakistan accept India as a permanent member with all the privileges that accrue, when the Security Council is supposed to help promote peace and those two countries have had eight wars over Kashmir?

And this, he said, is only half the problem. There are also the formal procedures of the Council, which during the cold war was relatively inactive except for the occasional resolution on, say, Palestine, Korea, or apartheid, because the Soviet bloc or the U.S. and its allies were bound to use the veto, which has always been the biggest obstacle to Charter reform. Now that the Council has become more active, most of that activity takes place in private meetings in a small room off to the side of the main chamber to which some Council members may not have been invited. According to this source, the five permanent members hold such meetings virtually every week, creating one major issue over how to move the chamber toward more transparency through open meetings. "Everyone," he insists, "should have access to everything the Secretary-General tells the Council."

And then there's that bothersome veto, which legal scholar Grenville Clark, when asked for his opinion of the U.N. Charter by President Franklin Delano Roosevelt, reportedly called "idiotic," since it could "paralyze the organization." Roosevelt is said to have agreed, but not to worry, he reassured Clark, without the veto he couldn't get the British, the Soviets, or even the U.S. Congress to join the United Nations -- but it could all be easily corrected with Article 109.

Recently, a nongovernmental organization (NGO), the Center for War/Peace Studies(CW/PS), has taken the first steps toward reviving Article 109 -- not only as a route to U.N. review but also to use that review to try to change the very way the world body makes its decisions, including making General Assembly resolutions binding rather than merely advisory, as they are today. (Of all the U.N. entities, only the Security Council has the authority to make binding resolutions.) In November the CW/PS held a day-long public seminar at Seton Hall University School of Law in Newark, NJ, which was attended by representatives of government, the U.N. Secretariat, academics and civil society and was co-sponsored by the U.N. Association in the United States (UNA-USA) and the World Federalist Association.

The CW/PS plan for revamping the U.N. is known as the "Binding Triad System for Global Decision-Making." This "three-legged" mechanism would make decisions of the General Assembly binding by adding two more "legs" to the chamber's traditional one-nation, one-vote rule, thus creating a "triad" which, while retaining each country's right to vote, would at the same time adjust the weight of each country's vote according to its population and the amount of its contributions to the regular U.N. budget.

Not surprisingly, one ambassador attending a CW/PS focus group was quick to say his small country stood nothing to gain by a weighted vote, suggesting the reaction the Binding Triad can expect from at least one U.N. sector. The ambassador also said that as a country that "has gone to considerable lengths to cede some of our sovereignty," his looks at other countries and sees that "no others have ceded any part of theirs. Some countries won't even consider it. "We feel taken advantage of," the permanent representative admitted, arguing that, "every country will have to cede some sovereignty. We need the measure of a country's moral stature, such as accepting the authority of the International Court of Justice." (A clear reference to failure of the U.S. to sign on both to that court and to the new International Criminal Court.)

Meantime, Hans Corell, U.N. Legal Counsel and Under-Secretary-General for Legal Affairs, says there's an easier way than Article 109 to effect charter reform. Asked in an interview about the article's legal status, Corell agreed that it could still be used to initiate charter review, but he doubts the General Assembly would vote for a full review conference because it would be so cumbersome. Moreover, he pointed out, "the relevant sections of Article 109 are now the same as those of Article 108," which covers charter amendments and requires they be adopted by two-thirds of the 191 members and then ratified by two-thirds of them, including the five permanent members of the Security Council. "I would think that now, with 191 member states," he said, "the Assembly, instead of calling a conference, would establish a working group and apply Article 108 instead. Today, the interesting provision is Article 108."

In preparing a sort of two-pronged attack in its efforts to have its Binding Triad considered by the General Assembly, CW/PS founder and director Richard Hudson has already drafted a resolution calling for such an open-ended working group to study his Binding Triad just as it would any other resolution. Meantime, the NGO's Seton Hall seminar, led by international legal expert Myron Kronisch, has produced Citizens for Global Solutions: a collaboration between the World Federalists and another long-standing organization, the Campaign for United Nations Reform. Together, they hope, through a series of small conferences and other means, to "promote support for global institutions capable of solving problems nations cannot solve alone."

Pat Orvis has been covering the United Nations as a resident correspondent since 1982. She was first accredited to the Chicago Sun-Times News Service (formerly the CDN Wire), for which she also wrote a weekly column. She has also written extensively about the U.N. and global issues for several other national and international publications, including the New York Times. She is currently accredited to the Baltimore Sun.