Annex XXX
Paper transmitted by Peru to the Open-ended Working Group, dated 17 July 1998: majority required for the adoption of decisions on the question of equitable representation on and increase in the membership of the Security Council and other matters related to the Security Council and convening of a special session of the General Assembly to decide on this issue, among other matters
1. The Permanent Mission of Peru attaches great importance to the question of equitable representation on and increase in the membership of the Security Council and other matters related to the Security Council, both in view of the great importance of the Council and because an increase in its membership would give it greater legitimacy, while the reform of its working methods is essential to the role which it is called upon to play during the current post-cold-war period.
2. Both substantive and procedural proposals concerning the possibility of increasing the number of permanent and non-permanent members of the Council have been made in the Open-ended Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council and Other Matters related to the Security Council.
3. It is important to bear in mind that the status of permanent member provided for in the Charter was not conferred by election. Both the status of permanent member and the identification by name of the States parties to the Charter which enjoy such status were determined by the signing of the Charter, which was officially concluded by the plenipotentiaries to the 1945 San Francisco conference. In addition to the status of permanent member, the many prerogatives enjoyed by those members, such as the requirement of unanimity for the adoption of Council resolutions and for the approval of any amendment to the Charter, were also established by signature of the Charter.
4. It would therefore be inconsistent to propose action on any draft resolution which could, if voted upon, result in the substantial alteration of the status of certain States parties to the Charter so that they would no longer be subject to election.
5. It should be recalled that Article 23, paragraph 2, of the Charter stipulates that a retiring member of the Council shall not be eligible for immediate re-election, thereby precluding the creation of any form of semi-permanent status.
6. The Permanent Mission of Peru considers that any decision to increase the number of permanent members of the Security Council would constitute not merely an amendment to the Charter, but a constitutional reform of the United Nations.
7. It therefore believes that draft resolutions of a procedural nature are inseparable from substantive decisions and should, ipso facto, be subject to the same procedures as the adoption of such decisions.
8. The possibility of a decision on an increase of the number of permanent members is more closely related to the provisions of Article 109 than to those of Article 108, despite the broader purpose of the former. The Working Group has exhaustively explored various modalities and substantive and procedural proposals for a possible increase in the number of permanent members of the Council. With respect to modalities, a majority of the Group's members have supported strict adherence to Article 108 of the Charter, which calls for a two-thirds majority of the Member States, not merely of those present and voting.
9. The Permanent Mission of Peru takes the view that, in order to be valid, any procedure which would change the current status of a Member State to that of permanent member would require a decision by a greater than two-thirds majority if, for understandable reasons, consensus could not be achieved. A number of representatives had this in mind in preparing the draft of General Assembly resolution 48/26. Indeed, it would be unlawful, and therefore unacceptable, to attempt to make a qualitative change of this nature through rounds of voting, which is the procedure followed in the case of the election of non-permanent members of the Council. The establishment of a specific majority greater than two thirds yet less than unanimity would always be controversial; but, then, in logical terms the very principle of legitimacy which confers such broad prerogatives as those granted by the Charter in 1945 would also always be controversial.
10. Although considerable time has been spent in discussing aspects of Security Council reform, new obstacles have recently compounded the difficulty of achieving general agreement on a possible increase in the number of permanent members. They include major declarations to the effect that only the inclusion of additional members in the Security Council would be acceptable. This would make representativeness even more of an issue and create a greater imbalance in the relationship between permanent and non-permanent members, further eroding the legitimacy of the Council, a body which, in the discharge of its responsibilities, takes decisions on behalf of all Member States. Accordingly, it would seem inappropriate to take a decision that does not contain all the elements needed for a comprehensive reform of the Security Council: transparency, legitimacy, efficiency, non-discrimination, equitable geographical distribution and representation and full capacity to ensure peace and security in the current international environment of the post-cold-war period, in accordance with the Charter and with international law.
11. Given the fundamental importance of this matter, for which no provision is made in the Charter and which is without substantive or procedural precedent, and in the light of the possibility that action might be sought on a draft resolution which implicitly or indirectly proposes an increase in the number of permanent members of the Council, it is of the utmost importance that the President of the General Assembly - who also presides over the Open-ended Working Group - should be consulted and informed in a timely manner so that the Assembly can decide whether to convene a special session, at which, in full possession of the facts and with the participation of the Ministers for Foreign Affairs, it will consider all the substantive and procedural issues discussed by the Working Group and determine whether agreement can be reached on the question.
