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vonRonda Hauben 13.12.2017

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There is a provision in the UN Charter which requires the Security Council, when it discusses a dispute, to invite those countries that are parties to the dispute to participate in that discussion. This requirement of the UN Charter is explained in Chapter V, Article 32 of the Charter.(1)

The language of Article 32 says:
“Any member of the United Nations which is not a member of the Security Council……if it is a party to a dispute under consideration by the Security Council shall be invited to participate, without vote, in the discussion relating to the dispute.” (Emphasis added)

The Security Council, however, does not comply with this requirement of the UN Charter. The many resolutions that have been passed by the Security Council condemning actions of the Democratic People’s Republic of Korea (DPRK) were passed without the members of the Security Council including the DPRK in the discussion as is required by the UN Charter.

For example, shortly after the first nuclear test was carried out by the DPRK on October 9, 2006, the DPRK indicated that there were reasons why it took this action. In violation of the Charter, however, the members of the Security Council did not invite the DPRK to participate in the discussion in the Council about the dispute. Instead sanctions were imposed by the Security Council on the DPRK without hearing its side of the dispute. Only after the sanctions were voted on was the Representative of the DPRK allowed to speak.

How can the members of the Security Council understand the nature of a dispute without hearing from the parties to the dispute? How can Security Council members decide how to act to resolve a dispute unless they hear from those involved in the dispute.

It is now more than 10 years after the UN Security Council passed Resolution 1718 punishing the DPRK for its first nuclear test.

The DPRK has conducted several additional nuclear or missile tests. The UN Security Council has passed several additional resolutions against the DPRK, without making any attempt to hear from the DPRK. The DPRK has written to the Security Council several letters asking to have the Security Council consider the dispute that the DPRK says is why it needs to develop a nuclear weapon. The DPRK has also offered to freeze further nuclear development if the US and the Republic of Korea (ROK) cease large scale military drills against the DPRK that they hold several times a year. The US refuses to consider this offer and the Security Council members continue to support the US-created resolutions increasing the Security Council’s sanctions against the DPRK. (2)

While the Security Council ignores the letters from the DPRK, and the Charter requirement that it hear DPRK’s views about the dispute, several Security Council members publicly proclaim but inaccurately, that it is the DPRK that refuses to negotiate about its nuclear program. (3)

The failure of the Security Council to adhere to the obligation of the UN Charter, has led to an ever more tense situation over the dispute between the DPRK and the US.

An event, however, which helps to shed light on this situation took place at UN headquarters on September 22, 2017 during the week of the General Debate that began the 72nd Session of the General Assembly. A press conference was held by the Foreign Minister of the Russian Federation, Sergey Lavrov. In response to a question raised by a journalist at the press conference, FM Lavrov provided not only an understanding of the nature of the obligation that Article 32 bestows on the Security Council, but also an understanding of the importance of this obligation. (4) The journalist asked Foreign Minister Lavrov:

Journalist Q: “My question is about the significance of the Security Council and the world not hearing, in the process of the sanctions, from the DPRK. Under Article 32, it says that the DPRK should be invited to the Security Council. They’ve [the DPRK] also asked to come about the joint exercises. They’ve sent numerous letters to the Security Council and yet we are told they don’t want to negotiate. But if the Security Council constantly doesn’t even follow the Charter inviting them, how can they (the DPRK) have a sense there’s any process going on within the Security Council? Can you say Russia’s position about having an invitation the way Article 32 provides for of a country who is being discussed and hearing their side of the story?”

Foreign Minister Lavrov responded:

Lavrov : “I believe that when the UN Security Council reviews the issues which regard any country, any member country, this country has to be invited and has to have an opportunity to present their position to the UN Security Council. For me, this is a given and it is enshrined in (the) Charter as you quite rightfully say. But when it goes for the practical actions not everything depends on us. There are many opportunities for other Security Council members, member states. Well, in any case, despite this article (in the Charter), the routine practice is the following that we need consensus. Not everything depends on us.”

Lavrov’s response clarified that while the obligation is “enshrined in the Charter” to provide an opportunity for any country, involved in a dispute considered by the Security Council to be invited and to be able to present its view of the dispute to the Security Council, he also acknowledges that this obligation of the Charter is not practiced at present by Security Council members. Instead Security Council members determine by consensus what their practice will be. In addition, Lavrov explains that on its own the Russian Federation is not able to change this Security Council violation of the Charter.

But Lavrov is not alone in recognizing the violation by the Security Council of the right to due process under the Charter for those being condemned by the Security Council. This violation of the Charter by the practice of the Security Council also has been the subject of criticism by member states demonstrating the need for Security Council Reform.

For example at the 62nd General Assembly meeting on the need for Security Council Reform, Ambassador Hilario Davide of the Philippines told the Council(5):

“(D)ue process and the rule of law demand that Member States that are not members of the Security Council but are the subjects of the Council’s scrutiny should have the right to appear before the Council at all stages of the proceedings concerning them to state or defend their positions on the issues that are the subjects of or are related to that scrutiny…. This is a denial of due process, which is a violation of the basic principle of the rule of law. Due process and the rule of law require that a party must be heard before it is condemned.”

Also this violation of the Charter had been criticized by civil society groups, as for example, in a recent letter sent to the Secretary General and signed by over 300 women and women’s groups from 45 countries. In the letter, the women wrote (6):

“In accordance with UN Charter rules, we urge you to respond to North Korea’s security concerns regarding these war drills, the world’s largest, which rehearse surgical strikes on North Korea, ‘decapitation,’ and regime change. According to Article 32 of the UN Charter, ‘Any Member of the United Nations which is not a member of the Security Council … if it is a party to a dispute under consideration by the Security Council, shall be invited to participate, without vote, in the discussion relating to the dispute.’ Yet the DPRK has never been invited to participate in UNSC sessions on sanctions resolutions, and the Permanent Mission of the DPRK to the UN has not received a response to its August 25, 2017 letter where they “strongly request[ed] the Security Council of the United Nations to place the issue of the joint military exercise as its emergent agenda and discuss in the meeting with no further delay.”

Criticism of the Security Council’s failure to provide due process to those they condemn has even been raised in court proceedings as with SC resolution 1267, with the Court requiring the Security Council to change its procedures.(7)

Also, there is an example of the Security Council acting differently. In 2010 the Security Council took up a dispute regarding the Republic of Korea and the Democratic People’s Republic of Korea, and invited both parties to present their view of the dispute. Then the Security Council issued a Presidential Statement documenting the nature of the dispute and urging the two parties to settle it in a peaceful manner.(8)

It is significant that Lavrov recognizes the obligation of the Security Council to hear the views of nations involved in a dispute being considered by the Security Council. His acknowledgement that such problems need others to take them up in order to be resolved, implies a current challenge for the UN. The ongoing failure of the Security Council to operate according to the Charter undermines the legitimacy of the Security Council and even of the UN.

Notes

1) Charter of the United Nations, Chapter V, Article 32
http://www.un.org/en/sections/un-charter/charter-v/index.html

2) The US is the pen holder writing the SC Resolutions against the DPRK and then uses various forms of pressure to get the SC to pass the resolution. This is the case even though the US is a party to the dispute with the DPRK.

3) See for example
http://webtv.un.org/watch/japan-prime-minister-addresses-general-debate-72nd-session/5581786476001/

Japan – Prime Minister Addresses General Debate, 72nd Session, 20 Sep 2017 – Shinzo Abe, Prime Minister of Japan, addresses the general debate of the 72nd Session of the General Assembly of the UN (New York, 19 – 25 September 2017).

4) See
http://webtv.un.org/media/watch/sergey-lavrov-russian-federdation-press-conference-22-september-2017/5583136573001/?term= (Start 30:23; End 32:03)
Sergey Lavrov (Russian Federation) – Press Conference (22 September 2017)
22 Sep 2017 – Sergey V. Lavrov, Minister for Foreign Affairs of the Russian Federation, addresses the press on disarmament and other topics.

5) See
http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.5968(Resumption1)
Transcript Security Council meeting, August 27, 2008, S/PV.5968, Resumption 1. p. 8

6) See for example
https://www.womencrossdmz.org/web/wp-content/uploads/2017/09/Final_Letter-to-UNSG-ver6.pdf

7) See for example
https://www.heise.de/tp/features/At-Legal-Crossroads-3419131.html
Ronda Hauben, “At Legal Crossroads: Security Council sanctions imposed without Due Process”, Telepolis, 29. Juni 2008.

8) See for example, UN Security Council Presidential Statement S/PRST/2010/13
http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PRST/2010/13

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