The Reform of the United Nations Security Council and Türkiye’s Approach to the Council’s Legitimacy

Birleşmiş Milletler Güvenlik Konseyi Reformu ve Türkiye’nin Konseyin Meşruiyetine Yaklaşımı

Naziye DİRİKGİL

The United Nations Security Council (UNSC) occupies a pivotal role in international law and in the maintenance of international peace and security, but is widely perceived as in need of reform. Such reform could help strengthen the legitimacy of this international body, especially if its membership is expanded to include new members. However, such process is perceived differently across the international community and is the source of extended debate and disagreement. This article traces Türkiye’s proposal to reform the UNSC and enhancing its legitimacy. While providing the legal basis of UNSC decisions, the article also shows how Türkiye has become increasingly active and assertive in interacting with the UNSC reform process, and how it has favoured a reform approach that focused on the expanding the non-permanent than the permanent membership category. Such approach may be facing certain obstacles and challenges, but nevertheless comprises a realistic and pragmatic approach to effecting meaningful change in the UNSC.

UN Security Council, Reform, Legitimacy, Türkiye.

Birleşmiş Milletler Güvenlik Konseyi (BMGK), uluslararası hukukta ve uluslararası barış ve güvenliğin sürdürülmesinde çok önemli bir role sahiptir. Ancak, reform ihtiyacı geniş çapta bir ihtiyaç olarak ortaya çıkmaktadır. Böyle bir reform, özellikle BM üyeliğinin yeni üyeleri içerecek şekilde genişletilmesiyle bu uluslararası organın meşruiyetini güçlendirmeye yardımcı olabilir. Ancak, bu reform süreci uluslararası toplumda farklı algılanmakta ve uzun süreli tartışma ve anlaşmazlıkların kaynağı olmaktadır. Bu makalede, Türkiye’nin BMGK’da reform yapma ve meşruiyetini artırma önerisi incelenmektedir. Makale, BMGK kararlarının yasal dayanağını ele alırken, bir yandan da Türkiye’nin BMGK reform süreciyle etkileşimde nasıl giderek daha aktif ve iddialı hale geldiğini ve daimî üyelik yerine daimî olmayan üyeliğin genişletilmesine odaklanan bir reform yaklaşımını nasıl tercih ettiğini de göstermektedir. Her ne kadar bu tür bir yaklaşım belirli engeller ve zorluklarla karşı karşıya olsa da yine de BMGK’da anlamlı bir değişikliği etkilemek için gerçekçi ve pragmatik bir yaklaşım içermektedir.

Birlemiş Milletler Güvenlik Konseyi, Reform, Meşruiyet, Türkiye.

Introduction

The United Nations Security Council (UNSC) is widely recognised as the most powerful organ of the United Nations (UN) system, and therefore occupies a critical position in the formation and exercise of international law. The UNSC was created to ensure that great powers assume and retain a pivotal role in upholding international order and legitimacy, while legally maintaining and exercising the veto power that the UNSC provides them. The UNSC embodies two key considerations. The first is that it is preferable for the maintenance of international law for great powers to have their leading role and global significance recognised by the UN Charter. The second is that the UNSC reflects the real world of international relations and balance of power, and therefore constitutes a truly powerful and effective body for implementing global peace and security. For decades, both considerations were generally understood as being continuously evident.

However, in recent years, and especially since 1991, there have been some major questions and criticisms across the international community on the legitimacy of the UNSC, and how such legitimacy needs to be restored and enhanced. The debate on the legitimacy of the UNSC and the process of UNSC reform has affected all major states, both established and emerging. The permanent five members of the UNSC (China, France, Russia, United Kingdom, United States) have all faced pressures to accept reform, and each one has developed its own position in response to such calls. Some permanent members such as the UK and France have been more open to reform, seeking to proactively shape the debate, while others, such as China and Russia, have been more obstructionist, seeking to retain for their own right the legal prerogatives that the UNSC grants them. Other important states, such as Brazil, India, Germany and Japan, have collaborated in order to gain international support for their on-going candidacies as permanent members.

In this dynamic international environment, Türkiye has become increasingly active in engaging with the reform process of the UNSC. Despite such activism, Türkiye’s role in the UNSC reform process has not been adequately examined and therefore deserves further analysis. This article shows that Türkiye’s approach has gradually been focused on the idea that the preferable path to restoring the UNSC’s legitimacy is the increase of the non-permanent category. This approach is proposed by Türkiye as more realistic, and pragmatic compared to other reform plans. Türkiye’s proposal is understood as one that has a better possibility of being accepted by both the UNSC permanent members and the UNGA membership (where a two-third majority is required for any reform plan to be approved). Türkiye is not the sole state proposing such approach but is sharing this reform plan with other members of the group that is called Uniting for Consensus. This article sheds light on how Türkiye has gradually developed its reform approach by first providing a more general legal understanding of the UNSC and the reform debate. The article then focuses on how Türkiye’s has historically served as non-permanent member of the UNSC, and how its has recently assumed a more assertive position in advocating for the reform of the UNSC in order to enhance its legitimacy.

I. Legal Basis of the UNSC Decisions

The structure and the composition of UNSC has long been discussed in academic and political circles. The main criticism about UNSC is the inconsistency of its actions. For instance, UNSC remains silent in some cases that the international community think the action is needed but, in some cases, even if some actions are being taken it fell short. As being one of the powerful organs of the UN, it is primary responsibility, among other UN intergovernmental organs, is “[t]o maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace”.¹ From this point of view the legal basis of UNSC decisions become significant to understand legal aspect the such as when they are binding and for whom. The UNSC is fundamentally governed by the UN Charter. The Charter has been amended throughout the years since its first adoption in 1945 and the law of the UN mainly developed with practices of its member states and its organs. The functions and powers of UNSC is established under Chapter V of the UN Charter and Article 25 states that the members of the UN agree to accept and carry out the decisions of the UNSC in accordance with the UN Charter. The UNSC documents are good examples of these practices and functions. The UNSC documents include resolutions, presidential statements, notes by the president, annual reports, reports of the secretary-general, exchange of letter etc.² All these documents reflect the UNSC decisions towards the cases that needs to be addressed. As stated by the International Court of Justice (ICJ) in Namibia (Southwest Africa) case³ that “when the Security Council adopts a decision under Article 25 in accordance with the Charter, it is for member States to comply with that decision, including those members of the Security Council which voted against it and those Members of the United Nations who are not members of the Council”. Therefore, in the field of international peace and security, UNSC has the power to make recommendations such as different categories of statements and reports and also adopt decisions binding on UN members such as resolutions. It seems UNSC resolutions have an important legal influence than other UNSC documents.⁴ However, does this mean that UNSC can act as a legislator because of its adopted resolutions? What is clear about UNSC is that it is one of the principal organs of the UN but its ‘legislative function is not clear cut’.⁵ The concept what constitutes a threat to international peace and security is a catalyser to move towards ‘legislation’. Therefore, resolutions relevance to the international peace and security as well as member states’ approach to those resolutions have an importance on deciding the legal nature of them. For instance, if a resolution unanimously adopted therefore no state has explicitly claim that the resolution was not lawfully adopted this can be perceived as no state has an issue with the legality of the resolution. Another example is if the resolution has been repeated seriously in the following UNSC resolutions, this can help to solidify the legislative nature of the resolution. In fact, like other UN intergovernmental organs, UNSC has a practice to reiterate the decisions from previous years too. Indeed, the legislative resolutions should be examined on a case-by-case basis.

In addition to that language of the decisions or the words that are being used in the decisions can be an indicator to decide their binding nature. For instance, one study reveals that some operative words are clear for imposing legal obligations to the UN members. UNSC may use the verb ‘decide’ or the word ‘authorise’ when adopting a binding decision.⁶ In its resolution on Libya, UNSC impose an obligation to UN member states to act under Article 41 of Chapter VII which provides the application of measures not involving the use of force i.e., embargo, no fly zone. For this purpose, UNSC “[a]uthorizes Member States that have notified the Secretary-General, acting nationally or through regional organizations or arrangements, and acting in cooperation with the Secretary-General, to take all necessary measures.”⁷ Wood and Sthoeger also point out that some certain words such as encourages or urges are generally considered to be the indicator of non-binding decisions.⁸ However, some words such as call upon or demand can also be used both in the context of binding decisions and non-binding decisions. The binding nature in these cases is heavily dependent on the content of the decisions. The decisions dealing with the UNSC acts under Chapter VII and including the word call upon or demand are highly likely to have binding nature. As indicated under Article 48 of the UN Charter that decisions of the UNSC for the maintenance of international peace and security are binding on UN members.⁹

However, the decision-making process within the UNSC is open to discussions because of the issues regarding the procedural matters. Article 27 (3) states that “[d]ecisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members...”. Another obstacle exists under Article 108 regarding the amendment of the UN Charter. It may be amended but it requires ratification by all permanent members. Therefore, it is not an easy task to make binding decisions on the cases that conflict with the interest of permanent members. The same difficulty applies to the amendment of the Charter. This decision-making process, so called veto power, has been contested by different UN members including Türkiye, as will be demonstrated later in this article.

II. The UNSC and the Reform Process

The UNSC can be understood as the prime international body for promoting global peace and security. Its central role in the institutional architecture of the UN is enshrined in the UN charter. As stated: “Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf”¹⁰ . Such clause effectively reflects an understanding that even if the UN is a democratic international society, where each country has one vote, there is an executive authority within such policy in the form of the UNSC. The special role of the UNSC is based on notions of legitimacy and efficiency. It reflects the understanding that the sustainability and effectiveness of the UN requires an additional executive body securing special rights and responsibilities for major powers, and where the special decision-making powers of these major powers are recognised by all UN members. As noted in the UN Charter: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”.¹¹

At the same time, the UN Charter recognises not only the central role of the permanent five, but also that other members should consistently be given the opportunity to participate in UNSC deliberations. This is especially important for retaining geographical representation within the UNSC. As noted in the UN Charter: “The General Assembly shall elect ten other Members of the United Nations to be non-permanent members of the Security Council, due regard being specially paid, in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization, and also to equitable geographical distribution”.¹² In this phrasing, special attention must be given to the notion of “contribution... to the maintenance of the international peace and security”, which implies that while there is a democratic process of rotation, certain members (such as significant regional states with military and economic capacity) should be especially willing and responsible for operating as non-permanent members on a frequent basis.

Even though the UNSC still enjoys recognition as a leading body in international peace and security, there are increasing calls for reforming it. Today, the majority of UN membership recognises that the UNSC requires urgent reform because of its anachronistic membership and functions, which impede its capacity to respond to humanitarian and security crises, as in the case of mass atrocities.¹³ UNSC reform has been debated in terms of the legal deficits it is supposed to address. UNSC reform would need to be in accordance with the principles of democracy, equality and representation, as embedded in UN General Assembly practices, and the principle of the sovereign equality of states, which is enshrined in the UN Charter.¹⁴ UNSC reform is also expected to meet the standards of responsibility and effectiveness, which reflect an understanding that only certain states, normally with great economic and military capacity, can meet such standards.¹⁵ In addition, reform would need to meet a standard of accountability, while recognising that the UNSC is not directly obliged under the UN Charter to meet specific legal obligations of accountability since it also performs political functions that are not clearly encapsulated by international law.¹⁶ While meeting such significant standards is a major challenge in itself, there is also recognition (and potentially a risk) that there are trade-offs between such standards. For example, expanding the permanent membership of the UNSC will likely enhance the principle of equity, but also likely undermine the principle of effectiveness since more members will have some forms of veto power, which is likely to lead to more deadlocks.¹⁷ Similarly, enhancing transparency regarding the UNSC’s institutional functions may not necessarily enhance legitimacy among the UN membership compared to a legitimation process that prioritises more direct channels of participation between UN membership and the UNSC.¹⁸

The perceived inability of the UNSC to meet such standards has led to what is widely noted as a crisis of legitimacy. Lack of legitimacy has both a legal and political component. The UNSC is not formally legally constrained by the UN Charter, but is nevertheless expected to adhere to the legal principles of the UN Charter and exercise its authority accordingly, and simultaneously adhere to principles of openness and transparency in its decision-making process.¹⁹ For a number of years, the UNSC’s lack of legitimacy is evident across the UN General Assembly where the majority of states maintain a negative rather than a positive view of the UNSC role and functions.²⁰ Such negative perceptions are often about the Council’s ‘procedural shortcomings’ rather than about the Council’s performance or its compliance with its legal mandate outlined in the UN Charter.²¹ The two dimensions can be connected, however. It has been noted that while it is generally accepted that the UNSC has the legal mandate to authorise the use of force, it is also criticised for failing to uphold international law rules (such as necessity and proportionality) in its decision-making process, therefore succumbing to loss of authority and legitimacy.²² The focus on ‘procedural shortcoming’ can also be more of a necessity than choice. Many members are realistic in not expecting the permanent five to discuss the issue of the veto, and, therefore, can only expect the permanent five to agree to reconsider procedural matters, especially if they recognise that failing to do so will continue affecting the UNSC status as guarantor of international peace and security.²³ There are also instance where the crisis of legitimacy that the UNSC faces concerns the inability to constrain the unilateral actions of major powers such as the US and Russia, and also reflects broader structural problems concerning the inability of the UN as a whole to properly regulate the use of force.²⁴ Critical events, such as the 2003 US intervention in Iraq, appeared to paralyse the UNSC and damage its credibility, even though the UNSC has survived such crises, mainly because both the interests of the permanent five and the principles of the UN Charter have dictated that it is preferable to remain committed to the existing structure of the UNSC than to seek alternatives.²⁵

Reform has become an increasingly complex process. Because the membership of the UN has increased since the organisation’s foundation, there is now a wide array of interests and preferences that make it difficult to reach consensus and common ground on the targets of reform.²⁶ UNSC reform proposals are often focused on the size of membership, i.e. the number of permanent and non-permanent members in a revised UNSC, the criteria for admitting new members into these categories (such as geographical representation), the granting of veto power to any new permanent members, and the revision of the decision-making process in the UNSC so that it becomes more effective and transparent within the UN system as a whole.²⁷ One common proposal is to expand the permanent member category, with the permanent five retaining their seats and new members admitted to represent the regional groups of Africa, Asia, Latin America, and the Arab world.²⁸ At the same time, the General Assembly is expected to take leadership in proposing amendments to the UN Charter, and if this is not always possible, to pass resolutions that regulate the practices of the UNSC.²⁹ The process of reform, as outlined in the UN Charter and its institutional provisions, also comprises in itself a hurdle. Any reform plan would need to overcome the veto power of the permanent five and gain a two-thirds majority in the UN General Assembly, and such threshold has become more difficult to meet across the past decades as the UN membership has increased and regional groups, such as the AU, also hold veto power because of their membership operates as a bloc.³⁰

The issue of veto power has long remained divisive, as the permanent five insist that veto power is crucial for maintaining global peace and security, and balance of power in the decision-making process, while many other UN members protest that veto power is abused and needs to be abolished in order to make the UNSC more responsive to current global challenges.³¹ Some note that any reforms need to be based on the recognition that only great powers can act as guarantors of peace and security, and for them to fulfil such role they need to enjoy veto power, otherwise they will be tempted to act unilaterally outside the UN framework.³² Such approach requires any new members to be cooperative towards the permanent five, to enjoy substantial military and economic capacity so that they can act as major powers, while reform itself need to be limited to just few new members.³³ However, others note that only a reform approach that concerns decreasing the veto power of the permanent UNSC members has the potential to have broad-based support within UN membership and potentially lead to enhancing equity and efficiency of the UNSC.³⁴ It has also be noted that great powers, such as the US, do not actually need veto power to protect their interests and can afford to consent to a new form of decision-making where a two-third majority is needed for the UNSC to make decisions on a particular issue.³⁵ Such logic is evident in other organisations, such as the World Trade Organisation (WTO), where there is no UNSC equivalent but only a General Assembly, and where great powers, such as the US and China, effectively still hold informal veto power that is widely recognised by all members. Moreover, an expanded permanent UNSC membership can be expected to decrease the frequent use of the veto as any state that casts a veto to protect its allies (for example, when they are committing violations of the UN Charter) is likely to be delegitimised by new permanent members from the global South who have greater knowledge of what happens in their regions.³⁶

Reform is obstructed by multiple factors. First, there is the resistance by the permanent five, even though there is some variation in how each permanent member approaches the issue of reform. Some members, like the UK and France, are more open to admitting new members as such process is also deemed more effective for protecting their own permanent UNSC seats.³⁷ The UK and France have submitted a proposal that calls for a ‘pragmatic intermediate solution’, which entails creating a new type of permanent UNSC seats that have no veto and serve for a longer time (4 years), at the end of which there is a review process.³⁸ The other three members, the United States, Russia and China, have all blocked the reform process at different stages for different reasons, which concern their own preferences regarding what an expanded membership should be.³⁹ Even though Russia and China share with Brazil, India and South Africa a common commitment to the principles of sovereignty, non-intervention and non-interference, the former have been negative to the prospect of admitting the latter to the UNSC.⁴⁰ The United States has historically remained ambivalent,⁴¹ supporting selectively the candidacy of certain members, such as India and Japan, but being overall cautious towards what reform might mean and often leaning towards blocking than facilitating the process.⁴²

Regional groups in the global South have also been obstructionist even though they have the opportunity to nominate their own regional candidates. The African Union (AU), for example, operates on the basis of the ‘Ezulwini Consensus’, which demands for reform to include two permanent and five non-permanent seats for Africa. However, the AU does not nominate specific countries and does not support other candidates outside Africa, effectively blocking the UNSC reform.⁴³ This is because a two-third majority is needed in a potential UN General Assembly vote and that can only be attained if the AU is supporting a particular reform plan. Within the AU, states such as Egypt, Nigeria and South Africa also seek to prioritise their own candidacies⁴⁴ , creating intra-regional divisions that are also accentuated by other African states that may have different preferences (for ex, a representative for Francophone Africa), or simply act in an obstructionist fashion.⁴⁵

It could be argued that the manner in which the UNSC operates today does not fully reflect the role enshrined in the UN Charter because of changes in international law and the global balance of power. While a major part of the debate is centred on the role of permanent members, existing or new ones, the role of non-permanent members of increasingly recognised as critical. Many also note that enhancing the role of non-permanent members, and potentially admitting only new non-permanent members, is a more realistic and pragmatic approach to reform. This view is reinforced by the fact that the only major reform to date was in 1965, with the expansion of the non-permanent category from 11 to 15 members. This became possible with resolution 1990 that was approved by the permanent five and by a two-third majority in the UN General Assembly, and which also reconfigured the required majority (when that applied) from 7 to 9 votes.⁴⁶ Today, it is noted that if the UNSC is to truly legally adhere to the democratic norms of the UN Charter, it needs to provide more authority to non-permanent members and change its decision-making processes into majority voting, rather than unanimity.⁴⁷ Despite slow progress, some shift is already evident in how non-permanent members shape the legitimacy of the UNSC. States will strive to enhance their own international legitimacy by being associated with the UNSC by frequently becoming non-permanent members and seeking to engage with the decision-making of the permanent five.⁴⁸ Important regional states that are not part of the UNSC will also confer legitimacy on the UNSC by defending its legal mandate (even if implicitly in some cases), serving regularly as non-permanent members, and promoting collaboration between the UNSC and regional bodies such as the Peace and Security Council of the African Union.⁴⁹ Also, different permanent and non-permanent members continuously demand from the UNSC to respond to challenges such as terrorism and nuclear non-proliferation, and as a result, the UNSC increasingly recognises that important non-permanent members must contribute to areas such as peacekeeping and the imposition of sanctions.⁵⁰ The five permanent members retain their central role but they increasingly take into account the positions of non-permanent members, and often require their support in order for resolutions passed to have broader legitimacy.⁵¹ The ten non-permanent members may often refrain from directly confronting the permanent five, but nevertheless can exercise considerable agency in the UNSC by utilising their diplomatic capacity, shaping discourses of legitimacy, and deploying an array of formal and informal mechanisms to enhance their influence.⁵² Because of the rigid and polarised positions of the permanent five, non-permanent members are more flexible in brokering resolutions and promoting their preferred norms, and through such roles they shape UNSC legitimacy.⁵³