Author: Tim Murithi
The world’s institutions are ill-prepared and inadequately designed to effectively address global challenges such as major power conflict, pandemics, the climate catastrophe, refugee crisis, violent extremism, illicit profiteering from natural resources and the regulation of artificial intelligence (AI) systems. In particular, the United Nations (UN), which was created to address the problems of the world in 1945, is no longer fit for purpose in the twenty-first century. Previous efforts to reform the UN Security Council have exposed the limited imagination that is symptomatic of an international system that has confined itself to repeating and reproducing an outdated paradigm of international relations. In effect, the UN Charter has not undergone any meaningful review since the organisation was established almost eight decades ago. The case for a complete overhaul is therefore more urgent than ever. This article will assess the urgency of invoking Article 109 of the United Nations Charter, which calls for a review of the international organization. The article identifies a practical pathway to UN Charter Review through targeted strategic interventions and the building of a ‘Coalition of the Willing’ within the General Assembly.
A Dysfunctional Security Council in a Dysfunctional UN
The period between the First World War and the Second World War was animated by the idealism of establishing the League of Nations; however the League was viewed as inadequately designed to manage the confrontational approach to international relations. The UN was invented based on a recognition of the limitations of the League of Nations. The UN’s primary purpose was to ensure that there was an institutional mechanism that would encourage its members to “settle their international disputes by peaceful means in such a manner that the international peace and security, and justice, are not endangered” (UN Charter, Article 2 (3)). Through the mechanisms of the Security Council and the General Assembly, the UN was designated the world body that had the primary responsibility to promote international cooperation on a broad range of issues, working through an array of institutions and specialized agencies of the system. However, what seemed initially to be a resourceful array of mechanisms and processes to address global challenges was soon to be confronted by the structural limitations and the egotistical imperatives of the powerful countries that dominated the Cold War and post-Cold War era. If powerful Permanent Five (P5) members of the Security Council can find it expedient to ignore the legal provisions of the UN Charter, why should any other member state of the UN feel obliged to respect this international institution?
The dysfunctionality of the UN Security Council (UNSC) was exposed again on February 24, 2022, when Russia simultaneously chaired the Presidency of the Council and launched an illegal invasion of Ukraine. It is unlikely that the world can endure another full-blown major power conflict, for example over Taiwan, between the USA and China. A confrontation of two other, nuclear-weapons-bearing permanent members of the UNSC without effective mechanisms to constrain their actions would leave us all in an extremely precarious state.
The Case for a UN Charter Review Conference Under Article 109
The founders of the UN recognized that the moment would arrive when it became imperative to transform the organization. For this, they included a practical mechanism to review the body’s Charter. According to Article 109 (1), a UN Charter Review Conference should have been convened 10 years after the signing of the document. While there was an initial effort to convene a conference in 1955, it was subsequently undermined by the geopolitics of the day.
Given the current dissatisfaction of so many UN Member States with the structure and functioning of the UN, especially the Security Council, the procedural barriers to launching a Charter Review Conference seem more manageable than ever. Such a conference could be initiated by a majority vote of the members of the General Assembly and by a vote of any seven members of the Security Council (Article 109 (3)). The latter provision means that the P5 cannot veto any proposed UN Charter Review Conference. In addition, the decision-making process at such a Charter Review Conference would be relatively democratic in the sense that “each member of the United Nations shall have one vote in the conference” (Article 109 (1)).
A UN Charter Review Conference could, through the collective decision of the members of the General Assembly (GA), identify the key issues that need to be addressed. It could adopt a recommendation to substantially alter the UN Charter and introduce completely new provisions, including a change in the name of the institution. It could also put UN Security Council reform as a key item on the agenda of such a conference.
It is evident that a UN Charter Review Conference could open a Pandora’s Box, because it will not be feasible for any one country to frame, orient and steer the outcome of such a convention. Nevertheless, for the reasons listed above a UN Charter Review Conference is now clearly a matter of human survival in the immediate short-term. In fact, a more interesting question is why UN member states have not had the creativity and imagination to draft a GA Resolution placing this issue on the table for discussion?
Obviously, the Permanent Five (P5) members of the UN Security Council are not interested in rocking the boat, because the current configuration of power and their ability to use and maintain the veto is in their vested interest. Temporary members of the UN Security Council have not taken the initiative for such a review process either. Therefore, it will be the responsibility of a ‘Coalition of the Willing’ within the UN General Assembly, who will have to draft a Resolution to trigger and launch a UN Charter Review Conference under the provisions of Article 109 of the Charter.
The Political Significance of a UN Charter Review Conference
In essence, if a UN Charter Review Conference makes recommendations, the major challenge will arise when it comes to ratifying any revised or new charter. Article 109 stipulates that any alteration of the UN Charter can only 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” (Article 109, Para 2).
The final ratification of any revised or new Charter is likely to be held hostage by a veto from any of the P5, in what is in effect an undemocratic provision inserted by the founders of the UN undoubtedly to serve their own interests of ensuring that any provisions meet with their approval. Despite this obstacle, a UN Charter Review Conference would have political significance in signaling to the world that the views of all countries and societies are recognized and valuable, and not only the narrow interests of the P5. In particular, the US, UK and France, collectively known as the P3, will most likely close ranks and reject UN Charter amendments, due to the privileged position that the current configuration bestows upon them. Similarly, Russia and China as authoritarian states will strategically position themselves to derail any transition towards a more global democratic dispensation due to the knock-on effect that this could have within their own domestic political spheres.
Even though the non-engagement by the P5 on UN Charter reform is a clear and present danger, it is still necessary for the silent majority of the rest of the world to pursue policy advocacy and transformation to activate the convening of a Review Conference. The fact that more than 60 per cent of the issues discussed by the UN Security Council are focused on Africa, yet the continent does not have any representation among the P5 members of the Council. Given the fact that the P5 can veto all manner of decisions before the Council, it is cynical and hypocritical of the major powers, and ultimately a travesty of justice at its most basic level, that African countries can only participate in key deliberations and decision-making processes as individual non-permanent members of the Council. UN Security Council negotiation and decision-making processes are in effect the highest manifestation of unfairness in the international system. If achieving fairness in negotiations among states is the preferred route to achieving global legitimization, then a fundamental transformation of the UN Security Council and the elimination of the veto provision is a necessary prerequisite action. This would be the basis upon which African countries have been calling for the abolition of the veto provision in the UNSC. A number of leading African countries including South Africa, Nigeria, Kenya, Ethiopia, and Ghana could prospectively anchor the Coalition of the Willing and they would need to reach out to progressive countries in Europe such as Ireland, Norway, and Switzerland, as well as other countries such as the Bahamas, Brazil, India, and New Zealand as anchor partner countries in other continents across the world to forge a practical pathway to catalyzing and activating strategic interventions on UN Charter Review.
The potential beneficiaries of such a global democratic transformation would be the societies in the so-called developing regions of the world – Africa, Asia, the Middle East, and Latin America.
In its recently launched report, the United Nations High-Level Advisory Board on Effective Multilateralism recommends a Charter Review conference focused on Security Council reform. It is necessary for all governments to now take on this issue in a much more focused and deliberate manner through the convening of a ‘Coalition of the Willing from the members of the General Assembly to pass a resolution on UN Charter Review, which will also contribute towards achieving concrete outcomes at the forthcoming UN Summit of the Future.
About the Author
Tim Murithi is Head of Peacebuilding Interventions at the Institute for Justice and Reconciliation, based in Cape Town, and Professor of African Studies, University of the Free State and Stellenbosch University, in South Africa, @tmurithi12.
Disclaimer: The views expressed in this publication are not necessarily those of the Friedrich-Ebert-Stiftung.