AAJ
Europe – Third World Centre (CETIM) American
Association of Jurists (AAJ)
6 rue Amat, 1202 Genève, Suisse http://www.aaj.org.br/
Phone:
(41) (22) 731 59 63
Fax:
(41) (22) 731 91 52 Contact persons:
E-mail: cetim@bluewin.ch President: Clea Carpi da Rocha
http://www.cetim.ch E-mail:
carpi@pro.via-rs.com.br
Secretary general: Vanessa Ramos
Contact person: E-mail:
VRamos1565@aol.com
Director: Florian Rochat
REFORM OF
THE UNITED NATIONS
According
to Mr. Kofi Annan, UN Secretary-General, in his report
“In larger
freedom: towards development, security and
human rights for all”
COMMENTS AND PROPOSALS BY :
AMERICAN ASSOCIATION OF JURISTS (AAJ)
AND
EUROPE – THIRD WORLD CENTRE (CETIM)
June 2005
Table of Contents
A) Introduction
B) Overview of the Situation
The Security
Council
1. Coup d’état from within the Security Council
2. The movement of the Security Council towards illegality
C) Commentary on the Report of the Secretary-General concerning the reform
of the UN
I.
The proposals of the Secretary-General with
regard to the Security Council
II. Institutionalization of preventive wars
III.
The proposals of the Secretary-General on the
Human Rights Commission
IV. ECOSOC - UNCTAD
V. Regional Groups
VI.
Conclusion
D) Proposals of AAJ and CETIM
I.
Security Council
II.
Human Rights Commission
III.
ECOSOC
IV.
General Assembly
A. INTRODUCTION
By publishing his report on the reform of the
United Nations, on the 21st of March[1],
the UN Secretary-General Kofi Annan caused quite a stir. Entitled ‘In Larger
Freedom: towards development, security and human rights for all’ the document
starts impressively, however, the contents hardly live up to the title’s
promise.
In fact, although the Secretary-General wishes
to undertake a complete reform of the United Nations system, a careful reading
of his report shows that his proposals do not address any of the UN’s
fundamental problems.
The proposals concerning the enlargement of the
Security Council amount to mere cosmetic measures and do nothing to further its
democratization.
Regarding his vision for development, Kofi Annan fails to mention the
triumvirate of the IMF/WTO/World Bank that dictates the economic policies of
member states, the consequences of which undermine state sovereignty and are
catastrophic for the majority of humanity.
Finally, it seems that the UN human rights
mechanisms will ultimately bear the burden of all this shuffling.
Moreover,
the ratification process for these proposals is difficult questionable, given
how the Secretary-General is pressing member states to adopt his proposals as
rapidly as possible so that he can submit them to heads of state when they meet
in New York in September at the follow-up meeting to the Millennium Summit.
Now, given the issues, it is necessary that the people debate the reform
proposals and that the reforms not remain the exclusive preserve of the
diplomats.
Of course, it is widely acknowledged that the
United Nations is in need of reform[2].
Nevertheless, it seems to us that the proposed reforms are inadequate.
Before
analyzing the Secretary-General’s proposals and suggesting others for the
reform of the United Nations, an overview of the current situation of the
Security Council is necessary.
B. ASESSMENT OF THE SITUATION
On the 26th June 1945 representatives of 51
States adopted the United Nations Charter. On 24th October that same year, the
UN was founded. Between these two dates, during the month of August, the United
States, one of the main drafters of the Charter and founders of the
organization, dropped an atomic bomb upon Hiroshima and another upon Nagasaki.
These crimes are amongst the most atrocious in History because they were not
military necessary, as recognized later by Eisenhower. They destroyed civil
population knowingly. Survivors have suffered important consequences due to
radioactivity’s effects, many of them died some years later after terrible
agony.
The UN’s double face is drawn from now on: on
the one hand the speech, on the other the practice, which runs usually counter
to the speech.
Contradictions between the speech and the
practice are not alien to the Charter or to the Organization. The preamble and
several articles proclaim a set of principles and rights of universal range,
while the part that tackles the organization’s functioning is the denial of
such principles and establishes the planetary domination of Great Powers that
came out victorious from the Second World War.
Among
the UN’s organs, the Security Council gathers together the most important part
of the institution’s power as it is entrusted of maintaining peace and security
in the world, the main purpose of the UN. As “executive” organ, its deviations
and malfunctions affect the whole system of the United Nations, thus tarnishing
its image in front of the public opinion. This is the reason why we will
concentrate on the Security Council’s functioning in this assessment of the
situation.
The
Security Council
The
hegemony of Big Powers that came out victorious from the Second World War is
reflected on the functioning of the Security Council, a body thought for a
bipolar world in the context of the cold war.
Chapters V, VI and VII of the United Nations
Charter deal with the composition and functions of the Security Council.
According to article 23 of the Charter, the Council consists of five permanent
members: China, France, the Soviet Union, the United Kingdom, and the United
States, and ten non-permanent members. Permanent members enjoy a right of veto or, to be more precise, each
decision is submitted to the rule of unanimity
of the five permanent members, which is necessary to adopt fundamental
decisions of the Council (article 27.3 of the Charter)[3].
Article 25 establishes the compulsory character for all States of decisions
adopted by the Security Council. Finally Chapters VI and VII of the Charter set
the Council’s mechanisms of action in order to comply with its mission of
“primary responsibility for the maintenance of international peace and
security”…as stated in article 24.
These norms, when giving a special and
privileged status to five member states, run counter to a fundamental principle
that is set also in article 2 of the Charter: the sovereign equality of all member states of the United Nations.
1. The
coup d’Etat in the Security Council’s bosom
The
split of the Soviet Union (USSR) at the end of 1991 transformed the bipolar
world, leaving aside non-aligned countries, into a unipolar world. The
disintegration of the USSR rendered obsolete article 23.1 of the Charter, where
the USSR appeared as a permanent member of the Security Council and article
27.3 relating to affirmative vote (named right of veto) of the Security
Council’s five permanent members. Once the USSR had disappeared, the principle
of unanimity of the five permanent members became impossible to apply.
That was the historic, politic and legal moment
to put an end to the Yalta agreements of 1945, that shared out the world among
the five powers, particularly between the USA and the USSR, to the detriment of
the sovereignty and self-determination of other States of the planet.
But this
was not done this way. On the contrary on the 24th December 1991,
Boris Eltsin addressed a letter to the Secretary-General of the UN, Pérez de
Cuéllar, to let him know that Russia, with the support of the Community of
Independent States (the former members of the Soviet Union), was taking the
place of the USSR, with all the rights and duties, in the Security Council as
well as in all other United Nations institutions.
That
was a real coup d’Etat in the United Nation’s bosom. By accepting
that Russia took the place of the USSR, article 4 of the Charter relating to
adhesion procedure to the United Nations was violated[4]
as well as General Assembly resolution of 1947 (A/C.1/212) that prohibits the
application of the principle of State Succession to the condition of member of
the UN. The right procedure has been applied in other similar cases. For
instance, after the disintegration of the Federal Republic of Yugoslavia and
the division of Czechoslovakia, successor States applied for their admission to
the UN and were admitted by the General Assembly. On the contrary, Russia took
the place of the USSR at the UN de facto
and, what is worse, at the Security Council with all rights and privileges
inherent to the condition of permanent member, without notice, nor
consultation, nor resolution by the General Assembly or the Security Council.
The only document that exists as a basis for the presence of the Russian
Federation at the Security Council is the letter by B. Eltsin of 24th
December 1991 addressed to the UN Secretary-General.
2. The sliding of the
Security Council towards illegality
In December 1991, the western Big Powers, led
by the United States, considered that with the coup d’Etat in the bosom of the Security Council, they had full rein
to put the Council completely into their service and violate international law
in its name, to create new institutions, change the existent ones and modify in
a regressive manner the international norms according to their interests.
Since then, one can consider that the Security
Council resolutions adopted under article 27.3 of the Charter lack legitimacy.
The object of such resolutions is consequently also marked with this
illegitimacy.
Moreover, the Council has
adopted many resolutions in the context of Chapter VII of the Charter (threats
to peace) by using it arbitrarily to exceed the powers conferred by the Charter
within this specific field (“the specific powers granted to the Council…”
states article 24.2).
This is about, for instance,
creating (invoking abusively Chapter VII of the Charter) “ad hoc” courts for
the former Yugoslavia and Rwanda. However creating international tribunals are
not among powers of the Security Council.
Resolution 687, adopted in April 1991 at the end
of the Gulf War, lets Security Council to claim for it powers of international
justice-maker, exceeding in the field of competence of the International Court
of Justice, the United Nations judicial organ. In fact, in this resolution, the
Security Council condemned Iraq to pay compensations and set the amounts and
conditions.
Afterwards there has been a real avalanche of
illegitimate resolutions by the Security Council, arbitrary and contrary to
international law, leading, as a consequence, to the configuration of a de facto worldwide government, a
government that gather normative, executive and judicial functions just like
any dictatorship in the Third World which are –with very good reason-
stigmatised.
Here there are the most recent Security Council
resolutions that have these features:
Resolutions 1368 and
1373 of 12 and 28
September 2001, adopted in the scope of Chapter VII of the Charter, deal with
legitimate self-defence (“inherent right of individual or collective
self-defence in accordance with the Charter”) in order to try to give an
international juridical legitimacy to the bombings of Afghanistan. This has no
sense at all, because legitimate self-defence is the immediate response to an
aggressor, in order to put an end to the aggression where it is taking place. Attacking
later and somewhere else a territory that presumably is the aggressors’
operations base is, at best, an armed attack in reprisal, if not a pure and
simple aggression, forbidden by international law.
Resolution 1422 of July 2002, renewed in 2003 by resolution 1487. By this resolution,
the Security Council orders the International Criminal Court to refrain, for
twelve months, from investigating the charges against residents of States that
are not a party to the Treaty of Rome (Statute of the International Criminal
Court), as the United States, for acts or omissions for which they could be
charged in the context of missions authorized by the UN. By voting resolutions
1422 and 1487, the Security Council has not interpreted article 16 of Statute
of the International Criminal Court but violated it. Therefore, it has violated
the treaty of Rome, as have member states of the Council that are bound by the
treaty.
The process of degradation of the international
system has made a qualitative leap with the aggression against Iraq in March
2003. The aggressor states have mocked international law and war norms, that is
to say humanitarian international law. Nor the Security Council, nor the
Secretary-General, nor the General Assembly did what they could have done to
try to stop the aggression. On the contrary, on the 22nd May 2003,
the Security Council adopted, by unanimity of the 14 member States present
(Syria was absent), resolution 1483.
This last one grants to occupant States
in Iraq the control of economy and the political future in Iraq in violation of
the 3rd section of Title III (occupied territories) of the 4th
Geneva Convention[5].
Decisions of the Security Council is
illegitimate because they come from a body that was constituted in violation of
the principle of sovereign equality of all States. They are doubly illegal
cause: 1) after 1991 the composition of the Council do not correspond to what
established the UN Charter, and 2) almost all decisions adopted afterwards by
this instance outrage the fundamental principles of international law in force.
C. COMMENTS ON
THE SECRETARY-GENERAL’S REPORT ON THE REFORM OF THE UN
I. Proposals
of the Secretary-General regarding the Security Council
The
Secretary-General is rather tender with the Security Council, if compared with
his criticisms towards the General Assembly and the Commission on Human Rights
(“loss of prestige”, “pulverization of credibility”, “drop of level of
competence”, etc.) though the good democratic functioning of the Security
Council is basic for peace and security of the whole humanity. On the other
hand, Mr. Kofi Annan does not propose anything to democratise this instance,
because creating new permanent offices or not will not change anything at all.
In fact, Mr. Annan avoids carefully to propose the abolition of the
“right of veto” at the Security Council, given that thanks to this twist the
five permanent members do as they please in the bosom of the UN. What would be
the use of increasing the number of members at the Security Council (cf. par.
170), if the five continue to block issues that bother them? The Security
Council will not be more “representative” than it is today because the right of
veto will remain and thus, one cannot talk decently of the UN’s democratisation
nor of its good functioning.
Secretary-General does not tackle this matter
and does not consider at all the possibility
to eliminate the statute of permanent members, even though it is contrary to
the principle of equality of all States.
Secretary-General does not tackle either the
issue of legitimacy of decisions made by the Security Council, though the last
ones run usually counter to the Charter.
II. Institutionalisation
of the preventive war
In paragraphs 122 to 126 of his
Report (Use of force), Secretary-General proposes to institutionalise
the doctrine of preventive war formulated by President Bust in his document
“Strategy of national security of the United States of America” presented to
the United States Congress on the 20th September 2002.
Thus, the Secretary-General makes an abusive
interpretation of article 51 of the Charter, contradicts himself and affirms
some obvious lies : “Imminent threats are fully covered by article
51 [of the Charter] which safeguards the inherent right of sovereign States to
defend themselves against armed attacks” (par. 124 and emphasis added). Precisely, article 51 talks of self-defence when a State suffers an armed attack and does not talk of imminent threats.
“Where threats are not
imminent but latent, the Charter gives full authority to the Security Council
to use military force, including preventively, to preserve international
peace and security.”
(par. 125 and emphasis added). Some jurists talk of a right to a legitimate anticipated defence, which
would derive from article 51 of the UN Charter. But preventive measures must
not be confused with a real threat of
attack and legitimate defence what involves use of military means
against a present aggressor[6].
Lastly
contrary to what the Secretary-General says, in the case of a threat to peace,
chapter VII of the Charter does not recommend directly the use of armed force.
It proposes gradual provisory measures, and only if those are proved to be
inadequate the Council can take action such as demonstrations, blockade
measures and other operations carried out by air, sea, or land forces of
members of the United Nations (art. 42).
It is evident that in
no cases, according to the wording and the spirit of the United Nations
Charter, the Security Council can take the initiative to cause a war.
III. Proposals of the
Secretary-General on the Commission of Human Rights (HRC)
Secretary-General proposes to “replace the Commission on Human Rights with a standing
Human Rights Council composed of a smaller number of members”
and adds that “those elected to the
Council should undertake to abide by the highest human rights standards” (par. 183 and emphasis added).
Why to create a standing Human Rights Council
that would sit the entire year, while there is a well-established distribution
of tasks among:
·
the
High-Commissioner (that works permanently and can intervene at any time) ;
·
the
treaty bodies (Committees that sit twice a year to examine reports submitted by
States Parties and some of them to receive complaints) ;
·
the
Sub-Commission on Promotion and Protection of Human Rights (that sits once a
year to carry out many studies) ;
·
the
special procedures of the HRC (that tackle practically all subjects and are
available the entire year).
It must be added that the HRC can
sit in extraordinary sessions in case of emergency! Since 1992, it has sit five
times in extraordinary sessions[7].
A “smaller” Human Rights Council will be easily
the object of pressure by the United States.
As regards members of the
future Human Rights Council, the Secretary-General suggests on the other hand “those elected to the Council should undertake to
abide by the highest human rights standards”. The first question that one can
pose is who is going to judge the candidates’ abilities? Are they going to be
appointed by the so-called « democratic », models regarding the
respect of human rights, led by the United States? The broadening of criteria
will suffer necessarily from arbitrariness. This future Council will simply add
selectivity to arbitrariness…
As regards the future Council’s mandate, Mr. Annan has specified a
little more his ideas at the HRC, during his visit in Geneva last April 7.
According to him, the main task of the future Council would be to “evaluate the
way in which all States implement their duties regarding human rights”.
However, this task is developed by the treaty bodies, composed of experts,
entrusted with verifying the implementation of the ratified conventions by the
signatory States.
The
Secretary-General proposes also that the High Commissioner on Human Rights play
“a more active role in the deliberations of the Security Council” (par. 144).
Even though his intention is commendable, the intervention of the High
Commissioner at the Security Council could open the way to instrumentalisation
of human rights. In fact, the High Commissioner will not have the right to vote
and his/her position will not be used but by the superpowers according to their
interests, as seen in the case of Iraq and the pseudo “arms of mass
destruction”.
As
refers to the participation of NGOs
(or of the « civil society » to use the terminology in fashion), it
is mentioned only marginally. It is, however, a central issue. It is far from
certain that NGOs will have in the future Council the same opportunities as in
the HRC, given that their status is currently supervised by the ECOSOC (the HRC
and its subsidiary body) whereas the future Council would seemingly depend on
the General Assembly. Is it necessary to remind that NGOs have no access to the
General Assembly, while their participation and the margin of manoeuvre they
enjoy at the HRC are unique in the UN system? Furthermore, the HRC competes
with the General Assembly with, for instance this year, five thousand
participants (governmental and non-governmental representatives) and
approximately a hundred ministers that came from all over the world.
The Secretary-General’s
proposals do not bring any improvement to the functioning of the UN Human
Rights mechanisms; on the contrary they put them at stake, because they do not
count on the existent mechanisms. Even though some might be seduced by the
Secretary-General’s proposals, we think that, despite its faults and
imperfections, suppressing the HRC would be a grave error.
IV. ECOSOC – CNUCED
On
social and development matters, Mr. Annan is satisfied by making good promises,
largely repeated in worldwide summits after three decades, such as the fight
against poverty, financing for development, the attribution of 0,7 % of the
budget of rich countries to official development assistance, etc. He continues
to praise the “merits” and “role” of the private sector and states that the
main task of governments is to create the “conditions for greater private
investment”. He does not practically elaborate on the IMF nor the World Bank,
whose great power and non-democratic functioning is well-known, but only to
“encourage” them to reinforce the developing countries’ participation. He does
not say anything either about the WTO that, since its creation, has left the
UNCTAD apart.
V. Regional Groups
The Secretary-General
keeps silent about the future of regional groups, established, however, to
grant an “equitable geographic distribution” and to give a certain universal
character to decisions made. He reduces them to four de facto in his proposals to increase the Security Council (see Box
5, page 43). Thus the Eastern Europe Group disappears. He also takes the United
Stats out of the Western Group to put them in the Group “America” that does not
exist at present[8].
It is certain that the Western Group, of a
heteroclite geography[9],
is about to take in the Eastern Europe Group. It is, already, evident that new
members of the European Union and candidate countries are systematically
aligned to the position of the European Union or that of the United States.
If one follows the geography of the world, what
is logical and puts an end to ideological and political grouping, Canada should
be in the new group “America”; Australia, New Zealand, Israel and Turkey in the
“Asia and Pacific” Group.
In practice, this issue seems to be even more
difficult if one refers to the new “Community of democracies”, already selected
by the United States[10]!
Will it record at the margin regional groups soon? Which is the margin of
manoeuvre that will be left then to the international community in front of the
dictates of the United States?
VI. Conclusion
The tendency of the
reforms proposed by the Secretary-General is toward preserving and reinforcing
the dominance of the great powers – led by the United States – over the UN system.
Paragraph 169 of the report could not be more explicit: “The Security Council must be
broadly representative of the realities of power in today’s world… a) [the
reforms of the Security Council should], in honouring Article 23 of the
Charter, increase the decision-making of those who contribute most to the
United Nations financially, militarily, and diplomatically (emphasis added)”.
In view
of the current balance of power, heavily tilted in favor of the United States,
transnational corporations, and neo-liberal economic policies, we entertain
serious reserves regarding the proposed reforms, and, under the circumstances,
we doubt that they will at all constitute progress for the peoples of the world
and for democracy in general.
It seems that, above all, the Secretary-General
wants to support the United States’ plan “to reacquire control over the system”[11].
The proposals of the
Secretary-General are completely at odds with what the UN urgently needs:
absolute respect for the goals and principles of the Charter, profound
democratic reforms, independence from the great powers and from the power of
the transnational economy, objectivity, impartiality, and non-selectivity in
action.
A reform aiming to
re-establish the role of the United Nations in the service of peace and human
development should follow the opposite direction from what is proposed. When it
comes to adopting decisions, small countries, which do not have projects for
world hegemony and which, unlike the permanent members of the Security Council,
do not partake in the arms trade on a global scale, should be accorded the same
rights and the same participation as the great powers.
In our opinion, it is
necessary to review the functioning of the UN, which, as indicated in the
preamble of the Charter, is a system based on the association of states and not
of peoples: states are too often represented by governments that represent the
interests of an elite minority at the expense of the will of their peoples. As
long as the UN bodies are not fully democratized, all attempts at reform will
be merely a perpetuation of the principle that might is right.
D. AAJ AND CETIM
PROPOSALS
As we already have emphasized, it is difficult
to imagine the outcome of a positive reform of UN in the current balance-of-power
context, a context which is anything but favorable to the interests of the
peoples of the world. The same is true of the abolition of the veto right, for
this gesture will not, in and of itself, bring about the hoped for results
without any of the other safe-guards mentioned in this document. Furthermore,
such a reform will come about only with widespread support of powerful social,
citizen and grass roots movements and with a modification of the balance of
power on a larger scale than that of merely the United Nations. At the same
time, it is essential that these movements make this question their own, for
international law and international institutions remain crucial elements in a
global strategy to build an alternative to the hegemony of unbridled, anti-democratic
and militaristic capitalism. It is also worthwhile proposing suggestions for
such reform with a view to effectively enlisting it in the service of peoples,
of human rights promotion, of equality and of peace. The following are some AAJ
and CETIM proposals.
I. The Security
Council is
currently lacking in legitimacy and acts in breach of the law, as we have
pointed out at the Chapter B (Overview of the Situation).
Therefore it should be thoroughly
reformed:
a)
to
increase the number of members to 24, six per region (Africa, Asia/Pacific,
Europe, and America) with fair regional distribution and periodic rotation of
all members;
b)
to
abolish the unanimity principle of the five permanent members, or “veto right”,
for the reasons stated in Point A and in the last section of the conclusion
(see Chapter C-VI);
c)
to
abolish the permanent-member system for the reasons exposed in the Point A and
in the last section of the conclusion (see Chapter C-VI);
d)
to
require that decisions be approved by a double majority, a minimum of twenty
member-state votes representing two-thirds of the world’s population, in order
to assure that decisions reflect both a genuine democratic majority and the
participation of every region;
e) to provide that, in case of a
deadlock over a Security Council decision owing to a failure to obtain the
required majorities, the Security Council, by a simple majority vote, could
decide to send the question to the General Assembly, which would then decide it
on the basis of the double majority of two-thirds of the votes and two-thirds
of the world’s population.
This last proposal to send the question to the
General Assembly in case of a Security Council deadlock is based on the Charter
and has significant precedents:
a) the Security Council may call for
special sessions of the General Assembly (art. 20 of the Charter);
b) the General Assembly may “discuss
any questions relating to the maintenance of international peace and security
brought before it by any part of the United Nations…” (articles 11, § 2, 34 and
35 of the United Nations Charter);
c) the General Assembly may “recommend
measures for the peaceful adjustment of any situation…” (article 14);
d) on 3 November 1950, the General
Assembly adopted Resolution 377 (V) “Uniting for peace”, commonly known as
the “Dean Acheson Resolution”, in which it is established that when certain
conditions are met (Security Council deadlock, decision to convene the General
Assembly, etc.), the General Assembly “will immediately examine the question in
order to make the appropriate recommendations to Member States on the
collective measures to adopt…”; the General Assembly used this “Acheson
proceeding” on several occasions and at various times: military intervention in
Egypt (1956), in Hungary (1956), in Lebanon (1958), during the Indo-Pakistani
conflict (1971), in Jordan (1980), in Afghanistan (1980), in Namibia (1981), in
Bosnia-Herzegovina (1992), etc.; in the case of Egypt (Israeli aggression and
Franco-English invasion), the General Assembly created a 6,000-man peacekeeping
force that stayed on the ground for several years.
This last proposal goes a long way toward
reinforcing, in practice, General Assembly prerogatives, which is highly
desirable.
There would need to be a monitoring of the legality of Security Council decisions. The
question of who should exercise such control over the legality of Security
Council decisions, and how, offers ample food for thought for legal experts,
including those sitting in the International Court of Justice. This Court would
be the most appropriate body to exercise such a control.
II. The Human Rights Commission (HRC)
One could imagine, as the Secretary-General
proposes, granting to the HRC the status of a primary UN body (art. 7 of the
Charter), such as that enjoyed by the Economic and Social Council (ECOSOC),
with the same characteristics: it would be composed of member states and
elected by the General Assembly, with an equitable geographical and
sub-regional distribution of seats and a periodic rotation of its members.
Contrary to the suggestion of the
Secretary-General, we should oppose a reduction in the number of the members of
the future body and favor, rather, an increase to 72: 18 for each of the four
regions (Africa, Asia/Pacific, Europe and America).
The Participation of NGO’s
must be maintained under the same conditions as in the current HRC.
As for the formal condemnation of member states
that violate human rights, this remains a thorny question. This task, incumbent
upon the HRC and the HRSC since 1967[12],
has had as a “collateral effect” the transformation of the HRC into a battle
field for the quarrels of member states that then manipulate the Commission and
discredit its work before international public opinion. This has been called
the “politicizing” of the Commission.
In the absence of objective criteria, the
prevailing principle is that might makes right: those managing to negotiate
alliances avoid a condemnation, whereas others abusively request “technical
cooperation” from the High Commissioner for Human Rights in order to avoid one.
An essential responsibility of the HRC should
remain establishing international standards and assuring, by virtue of its make
up, that these standards are given an internationally accepted composition.
One might add here that,
contrary to what some have suggested, it would be ill advised to replace the
HRC with a body excluding member state participation. Moreover, is it necessary
– or even possible – to do without member states? In the present system, any
new standard must be submitted to the approval of the member states, which must
then implement it at the national level. In this regard, it would be suitable
to keep the present system, which, again, allows for the participation of
member states at every level of the drafting of international texts.
The aforesaid, should, of course be accompanied
by an enhancement and reinforcement of the treaty bodies, among other things,
equipping with complaint mechanisms (optional protocols) the two instruments
which still are without them: the Covenant on Economic, Social and Cultural
Rights and the Convention on the Rights of the Child[13].
And this, in turn, should be accompanied by the reinforcement of the
independent role of the Office of the United Nations High Commissioner for
Human Rights, which remains weak by virtue of a budget that depends primarily
upon voluntary contributions[14].
As regards the Sub-Commission for the Promotion and
Protection of Human Rights, the prerogatives of this body should be
reinforced, as, in recent years, it has been more and more subjected to
pressure from member states seeking to muzzle it. For example, the
Sub-Commission must ask the HRC for permission to undertake a study on any
given topic, and for the past five years it has no longer been allowed to adopt
resolutions on the situation in member states[15].
And, of course, the principle of independence of its members must be respected.
III. The ECOSOC
The role of the ECOSOC regarding economic and
social questions needs to be made effective in practice, in conformity with the
Charter, and clearly reinforced. Following the example of the HRC, we should
increase the number of the ECOSOC members to 72, 18 per region, with an
appropriate sub-regional representation.
The role of UNCTAD must also be reinforced, and
there must be a total reform of the three financial institutions (WTO, IMF and
World Bank). It is intolerable that these institutions are not subject to any
democratic control. They need to be democratized and subjected to the oversight
of the General Assembly and of the ECOSOC. Their actions should correspond to
the needs of the populations of the earth and to the spirit of the United
Nations Charter.
IV. General
Assembly
As for the General Assembly, its role should be
reinforced and enhanced, as already emphasized. Democratization could be
undertaken by incorporating into member state delegations, with or without
voting rights, members of parliament, of professional associations, of academic
milieux and of other sectors of society, in conformity with Art. 9§2 of the
Charter. Professor Benedetto Conforti has suggested this, calling for “a
struggle for the spread of the democratization of the international
organizations”[16].