On Friday December 22, 2017, the UN Security Council unanimously passed a new resolution, Security Council Resolution 2397. This new resolution strengthens some of the sanctions that had already been part of earlier resolutions against the Democratic People’s Republic of Korea (DPRK).
The response of UN officials, such as the Secretary General Antonio Guterres was to welcome these further sanctions saying that what is most important is that the Security Council members are united in their actions against the DPRK. (1)
How do the actions of the members of the Security Council and the response of the UN Secretary General compare with the obligations set forth in the UN Charter concerning the process it mandates for dealing with alleged violations of international peace and security?
There is a dispute between the US and the DPRK which is threatening international peace and security. The DPRK says it needs nuclear weapons to defend itself and deter the US war like activities and other hostility. The US says the DPRK’s nuclear weapons are a crime against the whole world and must be dismantled. A neutral mediator is needed to help resolve the dispute but instead the UN under threat from the US takes the US side. Hence the tension continues.
On Friday December 15 something unusual but important took place.
The Japanese presidency of the Security Council for the month of December 2017 invited the Republic of Korea (ROK) and the DPRK to participate in the December 15, 2017 Security Council meeting about what has been happening on the Korean Peninsula. To invite states which are not on the Security Council but are parties to a dispute being taken up by the Security Council is in line with the obligations described in Chapter V, Article 32 of the UN Charter which states:
“Any Member of the United Nations which is not a member of the Security Council or any state which is not a Member of the United Nations, 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 such an invitation has rarely been extended by the President of the Security Council to the DPRK in the 11 years since the UNSC has been imposing sanctions on the DPRK, after its 1st nuclear test in 2006. There has been one exception, in a different matter. This was when the Security Council under the Mexican Presidency of Claude Heller invited the DPRK to make a presentation along with the ROK which had come to the Security Council to accuse the DPRK of causing the Cheonan disaster. (2)
After the Security Council meeting on Friday, December 15, I was working on an article about the importance of Japan inviting the DPRK to the Security Council meeting, analyzing the significance of DPRK’s presence and of its participation in the December 15 Security Council meeting.
But then there was what appeared to be a hurriedly arranged December 22 Security Council meeting to vote on a new Security Council resolution that increased the sanctions against the DPRK. This event led to a need to understand how the participation of the DPRK in the December 15 Security Council meeting could be totally ignored as occurred by the Security Council passing a stronger set of sanctions against the DPRK on December 22, rather than signaling to the DPRK that the Security Council would listen to and consider its side of the dispute with the US.
Some of the explanation of how this could happen was revealed in an article by the Washington DC Hankyoreh correspondent Yi Yong-in and Kim Ji-eun, Hankyoreh staff reporter.(3)
In their article, the journalists explained that as usual the serious negotiations in the dispute between the US and the DPRK happened outside of the Security Council when the US threatened China that if it didn’t go along with the US proposed increased blockage of oil to DPRK, that China’s big banks would be subject to increasingly strong sanctions.
Such threats had been publicly communicated to China in September. (4) Hankyoreh’s Washington correspondent documents that the threats continued after September leading to the December 22 Security Council Resolution 2397 against the DPRK, despite the DPRK inviting and hosting a visit from the head of the UN’s Political Affairs Department, Under Secretary General for Political Affairs Jeffrey Feltman and his two colleagues Sam Martell, and Katrin Hett in early December 2017.
It appears that the US threats resulted in China’s agreement to support the Security Council Resolution against the DPRK which increased the cap on refined oil to the DPRK from 2 million barrels to 500,000 barrels a year substantially cutting China’s oil sales to DPRK and further damaging the long standing Chinese relationship with the DPRK. This, despite China’s claims that it recognizes that the DPRK has a legitimate security concern. See for example China’s statement at the December 15 Security Council meeting.(5)
So a pattern in violation of the UN Charter was continued by the US and China by their carrying on their Security Council negotiations on Resolution 2397 away from the Security Council and away from input by the other 13 Security Council members or from the DPRK which the UN Charter requires be invited to participate in the discussion of the dispute.
As the Charter requires:
“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.”(Chapter V, Article 32)
Hence the positive steps by the DPRK inviting and accepting the visit of Jeffrey Feltman and his two colleagues to the DPRK for discussion and of attending the December 15 Security Council meeting and presenting its view of the dispute, only led to the DPRK being subjected to further sanctions by the Security Council acting contrary to the UN Charter by its December 22 meeting and by passing Security Council Resolution 2397.
Then the Secretary General further ignored the requirements of the Charter by praising the action of the Security Council, an action which was the result of the US threatening China and likely other Security Council member states if they failed to go along with increasing the sanctions on oil to DPRK.
Instead of the Secretary General upholding the right of the DPRK to have its side of the dispute considered by the Security Council, the Secretary General has championed one side of the dispute which is based on threatening other Security Council members and other UN members who are not on the Security Council to support the threats by the most powerful Security Council members against not only the DPRK, but even against China, a permanent member of the Security Council.
Article 100 of the Charter forbids such activity not only by the Secretary General but by other members of the Security Council and of the UN.
Article 100 says:
“In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might reflect on their position as international officials responsible only to the Organization.”
“Each Member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities.”
This means that the Secretary General must uphold the right of all members of the UN to have their views heard and considered toward the peaceful settlement of disputes. Threats by a powerful member state in order to get support for its actions against other member states are contrary to the obligations of Article 100 on the Secretary General and all members of the Security Council and the UN membership at large. Unity with threats is contrary to the charter obligations.
Such a state of affairs by the Security Council members and the UN Secretary General are to be condemned, not applauded if the UN Charter is to have any relevance any longer at the UN.
1) One of the many examples of the UN Secretary General calling for and praising the “unity” of Security Council members in passing and supporting resolutions against the DPRK was his statement at the Secretary-General’s Stakeout at the Peace Palace Security Seminar, The Hague, 22 December 2017.
In response to a question about “the main challenge for the Security Council in 2018”, Mr Guterres responded stressing the importance of maintaining the “unity” of the Security Council. He told the reporters “unity of the Security Council is more important than ever….The unity of the Security Council is essential to face today’s challenges….”
2) See for example, Ronda Hauben, “In Cheonan Dispute UN Security Council Acts in Accord with UN Charter”, September 5, 2010, taz.de/netizenblog
3) “[News Analysis] New resolution on North Korea results from US, China compromise”, Hankyoreh, December 23, 2017.
4) See for example Alexandra Wilts, “US threatens action against China if it doesn’t follow new North Korea sanctions”,Independent, 12 September 2017.
For earlier threats, see for example, Ronda Hauben, “North Korea’s $25 Million and Banco Delta Asia[Opinion] Another abuse under the U.S. Patriot Act (2001)”, OhmyNews International, March 21, 2007
5) United Nations Security Council, Meeting, December 15, 2017, p. 11