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Published online by Cambridge University Press: 27 February 2017
The Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, established in 1974, had never proposed an amendment to the UN Charter before its decision on March 10, 1995, to recommend deletion of the “enemy states” clauses. This action came, not coincidentally, during a year when the United Nations celebrated its fiftieth anniversary—a time for retrospective and prospective assessment. Amid the hoopla of the anniversary festivities, UN members engaged in serious reflection on ways and means of enhancing the effectiveness of the Organization as it confronts the challenges of a changing world.
The views expressed in this essay are the author’s and do not necessarily represent those of the United States Government. The author thanks Professor Elizabeth Defeis for her invaluable assistance.
1 GA Res. 3349 (XXIX), UN GAOR, 29th Sess., Supp. No. 31, Vol. 1, at 148, UN Doc. A/9631 (1974).
2 Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, UN GAOR, 50th Sess., Supp. No. 33, at 4, UN Doc. A/50/33 (1995) [hereinafter Charter Committee Report].
3 UN Charter Art. 109, para. 3. See also Article 23, which designates the permanent members of the Security Council.
4 “As early as the autumn of 1946, it was proposed that the Assembly call a conference ‘in order to eliminate the so-called “veto privilege”.’ ” Leland M. Goodrich, Edvard Hambro & Anne Patricia Simons, Charter of the United Nations 645 (3d ed. 1969).
5 GA Res. 992 (X), UN GAOR, 10th Sess., Supp. No. 19, at 49, UN Doc. A/3116 (1955).
6 According to Simma, the difference between the articles lies in their scope, in that Article 109 allows a comprehensive review. The Charter of the United Nations: A Commentary 1180 (Bruno Simma ed., 1994) [hereinafter Simma].
7 Letter addressed to the President of the General Assembly by the Permanent Representative of Colombia, Memorandum, para. 1, UN Doc. A/7659, at 2 (1969).
8 See Charter Committee Report, supra note 2, for a list of members and observers.
9 UN Doc. A/7659, supra note 7, at 3.
10 Membership and Decision Making, UN Doc. A/AC.182/L.82 (1995) (working paper submitted by New Zealand); and Simma, supra note 6, at 1184–85.
11 The Democratic People’s Republic of Korea called for a vote and abstained on a resolution that noted that the clauses were no longer valid. GA Res. 49/58, UN GAOR, 49th Sess., Supp. No. 49, at 297, UN Doc. A/49/49 (1994) (the vote was 155-0-1).
12 Previous suggestions for revision are mentioned in UN Doc. A/10113/Add.2, at 4 (1975); and UN Doc. A/PV.2357 (1975). See also UN Doc. A/AC.182/L.12 (1977).
13 Amendments to Articles 23, 27, adopted December 17, 1963, GARes. 1991A (XVIII), UN GAOR, 18th Sess., Supp. No. 15, at 21, UN Doc. A/5515 (1963) (entered into force Aug. 31, 1965). An amendment to Article 109, a consequence of changes to Articles 23 and 27, was adopted on December 20, 1965, GA Res. 2101 (XX), UN GAOR, 20th Sess., Supp. No. 14, at 90, UN Doc. A/6014 (1965) (entered into force June 12, 1968).
14 An amendment to Article 61 was adopted on December 17, 1963, GA Res. 1991B (XVIII), UN GAOR, 18th Sess., Supp. No. 15, at 22, UN Doc. A/5515 (1963) (entered into force Aug. 31, 1965).
15 A subsequent amendment was adopted on December 20, 1971, GA Res. 2847 (XXVI), UN GAOR, 26th Sess., Supp. No. 29, at 67, UN Doc. A/8429 (1971) (entered into force Sept. 24, 1973).
16 UN Charter Art. 110, para. 2.
17 GA Res. 1991A and B (XVIII), supra notes 13 and 14, respectively.
18 UN Diplomatic Note OR 112 (Apr. 13, 1964).
19 The Secretary-General acted as depositary of membership notifications and declarations to become parties to the Statute of the International Court of Justice. The resolution that adopted amendments to the Charter in 1971 specified that states were “to deposit their instruments of ratification with the Secretary-General.” GA Res. 2847 (XXVI), supra note 15.
20 UN Diplomatic Note, supra note 18, at 2.
21 UN Charter Art. 27, para. 3.
22 According to Simma, supra note 6, at 447–48,
it was the unanimous, though not officially stated, opinion of the representatives of the sponsoring powers at the San Francisco Conference that voluntary abstention of a permanent member of the SC should prevent a decision under para. 3, whereas an obligatory abstention did not prevent a decision even if a permanent member were affected.
23 An example was China’s abstention on Resolution 678 (Nov. 29, 1990), which provided the authority for multilateral force action against Iraq.
24 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970), 1971 ICJ Rep. 16, 22 (Advisory Opinion of June 21).
25 Colombia commented on Council expansion that “the practice in the Council amended de facto the letter of the Charter and, in fact the affirmative vote of the five permanent members is not necessary,” and that, “while there was no formal reform, one should have been carried out.” UN Doc. A/48/264, at 20 (1994).
26 Letter from Boris Yeltsin (Dec. 24, 1991) (on file in UN Library).
27 Letter from the Secretary-General to the President of the Security Council (Dec. 24, 1991) (on file in UN Library).
28 Letter from Charge d’Affaires of the Permanent Mission of Yugoslavia to the United Nations addressed to the President of the Security Council (Apr. 27, 1992), UN Doc. S/23877 (1992).
29 SC Res. 777 (Sept. 19, 1992); GA Res. 47/1, UN GAOR, 47th Sess., Supp. No. 49, Vol. 1, at 12, UN Doc. A/47/49 (1992).
30 UN Charter Arts. 5 (suspension) and 6 (expulsion).
31 The UN Legal Counsel noted that
General Assembly resolution 47/1 deals with a membership issue which is not foreseen in the Charter of the United Nations, namely, the consequences for purposes of membership in the United Nations of the disintegration of a Member State on which there is no agreement among the immediate successors of that State or among the membership of the Organization at large.
UN Doc. A/47/485, at 2 (1992). The Sixth Committee had previously set forth two principles concerning succession to membership but concluded that, beyond them, each case must be judged according to its merits. UN Doc. A/C6/162 (1947).
32 GA Res. 47/229, UN GAOR, 47th Sess., Supp. No. 49, Vol. 2, at 6, UN Doc. A/47/49 (1992).
33 UN Charter Article 71 mentions arrangements for consultative status of nongovernmental organizations.
34 Eric Suy, The Status of Observers in International Organizations, 160 Recueil des Cours 75, 105 (1978 II).
35 Id.
36 Intergovernmental organizations admitted to observer status with die General Assembly include the Organization of American States, the League of Arab States, the Organization of African Unity, the European Economic Community, the Council for Mutual Economic Assistance, the Organization of the Islamic Conference, the Commonwealth Secretariat, the Agency for Cultural and Technical Co-operation, the Asian-African Legal Consultative Committee, the Latin American Economic System, the Group of African, Caribbean and Pacific States, the International Organization for Migration, the African Development Bank, the Agency for the Prohibition of Nuclear Weapons in Latin America and the Caribbean, the Caribbean Community, the Commonwealth of Independent States, the Council of Europe, the Latin American Parliament, the Organization for Security and Co-operation in Europe, and the Permanent Court of Arbitration.
37 GA Res. 3237 (XXIX), UN GAOR, 29th Sess., Supp. No. 31, Vol. 1, at 4, UN Doc. A/9631 (1974) (PLO); GA Res. 31/152, UN GAOR, 31st Sess., Supp. No. 39, at 136, UN Doc. A/31/39 (1976) (SWAPO).
38 GA Res. 3280 (XXIX), UN GAOR, 29th Sess., Supp. No. 32, Vol. 1, at 5, UN Doc. A/9631 (1974).
39 GA Res. 45/6, UN GAOR, 45th Sess., Supp. No. 49, at 15, UN Doc. A/45/49 (1990).
40 Suy, supra note 34, at 100 (quoting Survey of International Law in Relation to the Work of Codification of the International Law Commission at 19, UN Doc. A/CN.4/1/Rev.l, UN Sales No. 1948.V.1U) (1949)).
41 Letter (June 29, 1994), UN Doc. A/48/957 (1994).
42 Letter (Aug. 19, 1994), UN Doc. A/49/92 (1994). See also GA Res. 49/2, UN GAOR, 49th Sess., Supp. No. 49, Vol. 1, at 5, UN Doc. A/49/49 (1994).
43 Letter from the Permanent Representative of the United States to the Secretary-General (Sept. 19, 1994), UN Doc. A/49/231 (1994).
44 The Chairman of the working group made an oral report to the Sixth Committee on November 25, 1994, UN Doc. A/C.6/49/SR.40, at 2 (1994).
45 GA Decision 49/426, UN GAOR, 49th Sess., Supp. No. 49, Vol. 1, at 341, UN Doc. A/49/49 (1994).
46 UN CHARTER Art. 53, para. 2.
47 Suggestions were made in the Charter Committee by Romania, Colombia and the Philippines to eliminate the clauses, UN Doc. A/AC.182/L.12 (1977). See also Simma, supra note 6, at 750.
48 UN Doc. A/49/PV.6, at 27 (1994). Andrzej Olechowski, Minister of Foreign Affairs, said, “I formally propose the removal from the Charter of the United Nations of the clauses referring to ‘enemy States’.”
49 Draft Resolution (Poland), UN Doc. A/C.6/49/L.3 (1994).
50 See GA Res. 49/58, supra note 11, and statement by the Democratic People’s Republic of Korea, UN Doc. A/C.6/49/5 (1994).
51 Charter Committee Report, supra note 2, at 36 (draft resolution).
52 Id.
53 Id.
54 Id. at 10, para. 31.
55 TC Res. 2199 (LXI) (May 25, 1994).
56 GA Res. 64 (I), UN GAOR, 1st Sess., at 122 (1946).
57 Report of the Trusteeship Council to the Security Council on the Trust Territory of the Pacific Islands, UN Doc. S/1994/1400, Spec. Supp. No. 1.
58 TC Res. 2200 (LXI) (May 25, 1994). The Rules of Procedure provided that the Council would hold one regular session in May of each year. UN Doc. T/1/Rev. 6, Rule 1, at 1 (1994).
59 UN GAOR, 49th Sess., Supp. No. 1, at 7, UN Doc. A/49/1 (1994).
60 UN Charter Article 7 lists as principal organs die General Assembly, the Security Council, the Economic and Social Council, the Secretariat, the Trusteeship Council and the International Court of Justice.
61 See David J. Scheffer, How the UN Can Deal with the Dangerous Pieces, Int’l Herald Trib., Jan. 31, 1992, at 6.
62 Concluding statement of the General Assembly President, UN Doc. A/45/PV.82, at 21 (1991). At Malta’s request, a new item, “Review of the Role of the Trusteeship Council,” was inscribed on the agenda. UN Doc. A/50/942 (1995).
63 Letter from the Representatives of Algeria, Argentina, Bangladesh, Bhutan, Guyana, India, Maldives, Nepal, Nigeria and Sri Lanka (Nov. 14, 1979), UN Doc. A/34/246 (1979).
64 GA Decisions 35/453, 36/460, 37/450, 38/454, 39/455, 40/460, 41/469, 42/459, 44/460, 45/421 and 46/418.
65 GA Res. 47/62, UN GAOR, 47th Sess., Supp. No. 49, at 25, UN Doc. A/47/49 (1992).
66 UN GAOR, 48th Sess., Supp. No. 47, at 2, UN Doc. A/48/47 (1993). See also UN Doc. A/49/499 (1995).
67 See UN Docs. A/48/264, at 16, 41, and 50 (1993); A/48/264/Add.1, at 3; A/48/264/Add.2, at 4.
68 Suggestions have been made to assign permanent seats to groups of states members of a given regional organization and allow those organizations to establish the means of rotation of states to fill those seats. See UN Doc. A/48/264/Add.l, at 5 (1993) (Algeria).
69 Malaysia suggested creating a third category of membership, semipermanent members, electable for a period of five to six years, without the veto right. UN Doc. A/48/264, at 58 (1993).
70 United Nations, Agenda for Peace 28, para. 46 (DPI/1247, 1992).
71 United Nations, The Blue Helmets: A Review of United Nations Peace-keeping 5 (2d ed. 1990), UN Sales No. E.90.I.18.
72 Id.
73 Security Council Summit Statement, UN Doc. S/23500 (1992), reprinted in 31 ILM 758, 761 (1992) (emphasis added).
74 In the Lockerbie case, Judge Lachs noted that the functions of the General Assembly and the Security Council “pervade other Chapters than their own.” Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. UK), 1992 ICJ Rep. 3, 26 (Order of Apr. 14).
75 See W. Michael Reisman, The Constitutional Crisis in the United Nations, 87 AJIL 83, 98 (1993).
76 Since June 1990, the Russian Federation has cast two vetoes and the United States one. SC draft resolutions, UN Docs. S/25693 (1993), S/1994/1358 and S/1995/394.
77 List of Vetoes Cast in Public Meetings of the Security Council, USUN Reference Section 12/94.
78 Id.
79 SC Index to Proceedings, UN Docs. ST/LIB/SER.B/S.13–30 (1976–93), and review of SC voting 1971–1975 and 1994–1995.
80 Comments submitted by Costa Rica, UN Doc. A/48/264, at 25 (1993). Others have suggested elimination of the veto in the election of the Secretary-General.
81 Membership and Decision Making, supra note 10. Since this writing, the proposal was adopted.
82 With regard to concurring votes, Simma, supra note 6, at 452, comments: “In the opinion of some observers, an express clarification of the existing legal situation was and still is desirable. On the other hand, this was not and still is not essential.”
83 Report of the Special Committee on the Charter of the United Nations and on the Strengthening of the Role of the Organization, UN GAOR, 48th Sess., Supp. No. 33, at 4, UN Doc. A/48/33 (1993).
84 See Simma, supra note 6, at 574.
85 See Oscar Schachter, United Nations Law, 88 AJIL 1, 7 (1994).
