Not by lamentations, but by congratulations, should a former UN staff member like me greet the appointment of the new secretary-general. I have served under four of his predecessors: Dag Hammarskjold, U Thant, Kurt Waldheim and Javier Perez de Cuellar. Antonio Guterres, now the 8th secretary-general of the organisation, deserves to succeed. He, a former prime minister of Portugal and a former UN High Commissioner for Refugees, has the right tools for UN leadership. However, I am not questioning the worthiness of the new captain of the UN ship. Instead, I am not sure whether the ship itself is still sea-worthy. Born in 1945, the UN is governed by a Charter born out of the smouldering ruins of the Second World War. Its elements began taking form as early as 1942, following the entry of the US into the war, one whose human casualties are estimated at 40 million. Its founding members numbered 51 states. That number has now grown to 193. Over the past 71 years, the world has changed many times over. Issues of war, peace and development are no longer the same. Even pen and paper, except in old hands like mine, are no more. The state is now competing with non-state actors for hegemony. Even globalisation has lost its lustre. Digitisation has become the new watchword, and landing on the moon might soon be eclipsed by landing and living on Mars. Yet the Charter of the UN has remained the same and not because of its resilience and relevance to vastly changing circumstances but because it is nearly impossible to revise. Article 109 of the charter provides for that remote possibility, but it cannot become a reality due to two impossibilities: Unanimity amongst the Big Five in the Security Council (the US, UK, France, Russia and China) and a super-majority of two-thirds approval by the entire membership of the organisation. So the UN is blanketed by too much ice to make it a sea-worthy ship for its new captain. And there is hardly anything that he can do about it. This is despite the fact that the secretary-general wears two hats, that of chief administrative officer (Article 98), and, at his discretion, leading the organisation's political direction (Article 99). Here are some selective lamentations in regard to the shackles built into the UN Charter. To begin with, let us overlook the anomaly of calling the organisation “United Nations." Nations? The membership is made up of states, not nations, and states immersed in the daily struggle of upholding their sovereignty. In fact, once in a while we see the entertaining spectacle of two delegations each claiming the representation of one state. The Dominican Republic, China, Mali and Chad have been examples. The right of states to self-defence is relegated to Article 51 of the charter. That basic sovereign right is expressed at the end of Chapter VII and is the main tool of the Big Five's hegemony expressed as sanctions against other states. The preamble of the charter in regard to the fundamental right of every individual to dignity and to gender equality is vague and exhortatory. It took three years for the General Assembly to amplify those rights in the Universal Declaration of Human Rights (1948). The rights of civilians to protection from war-faring combatants found their way to expression in 1949 in the Geneva Conventions of 1949 and the International Convention on Civil and Political Rights of 1966. Genocide, mass murder for any reason, was a later invention of the early 1950s. Article 2, paragraph 7, forbids the intervention by states in the internal affairs of other states. Great. But that basic principle of sovereignty is made subsidiary to Chapter VII in sanctions where the Big Five hold sway. It is in the General Assembly that that equality of sovereignty is expressed. The Assembly is considered to be the Parliament of Man and Woman. Yet, nearly all its resolutions are non-enforceable. Instead, they are a wish list of "please, would you be so kind as to..." The only exception to the above is the budget. But arrears have for far too long overwhelmed the payment of assessments on time. One country once paid just $40 to avoid losing its voting rights and to remain a hair-breadth's away from sanctions because of arrears accumulated over two years. As for the Security Council, which has "the primary" (not the exclusive) responsibility for the maintenance of peace and security, there is the veto power in the hands of five states from among 15, 10 of which are non-permanent members. The latter category satisfies geographical representation by regions (by caucuses), but has hardly any impact on decisions of war and peace. Only the resolutions of the body are enforceable. With decolonisation virtually accomplished, one of the six main organs of the UN, namely the Trusteeship Council, now has no job. Its ornate hall at UN headquarters serves as a meeting space. Attempts to rename the council the “Human Rights Council" have failed.
DEMANDS FOR REFORM:These things are beginning to look like the list of grievances the religious reformer Martin Luther famously pinned to the door of the church in Wittenberg in the 16th century. So we shall stop here to turn our lamentations towards the misperceived concepts and the cancerous impediments to the growth of the UN as a universal organisation. Where is the UN today in the global problems of terrorism, safe havens for internally-displaced persons, and genocidal wars waged by leaders? Not to mention the horrors in Syria, Iraq, Yemen, Libya and of death by drowning of immigrants young and old? "Internal affairs" are to be designated and protected from outside interference by the state itself. The UN is shut out, unless through resort to the recently developed laws of human rights and of humanitarian intervention. That UN absence is now filled by states, or by regional defence arrangements. Bringing these issues to the Security Council is akin to a fig leaf legitimating what sovereign powers have already decided to do outside of the UN. The term "peace-keeping" also does not exist in the UN Charter. It was an invention embarked on in regard to the first Suez War in 1956. We should take whatever help we can get to help our troubled world through our only universal organisation of the UN. But the national contingents volunteered by states at their own volition for peace-keeping need two main strategic elements: Freedom of movement, which can only be granted by the states on whose soil the peace-keepers are stationed, and prior training in joint exercises to at least learn the communication code of the array of multi-national forces involved in the peace-keeping. That pre-training currently does not exist except in two or three of the Scandinavian states. How can the UN membership agree on planning for peace-keeping, say, in the Philippines? The Philippines would be the first to angrily object saying, "who is the UN to anticipate a crisis in our country? This is nothing but fomenting a crisis. In any case, we shall not sign a Status of Forces Agreement (SOFA)." And thus the matter dies. The UN, being an inter-state system, also has no role to play in civil wars. It was not designed for that purpose. From where did the UN Security Council get its legal authority to ban individual citizens of sovereign states from travel outside their localities? The council is not a court of law, and the banned persons are not put on advance notice. When I once represented a travel-banned person, I discovered that the UN investigators used as evidence irrelevant indicators, and expert reports on the need to end a system of "you are guilty until you prove yourself innocent" went nowhere. It should be added to the above list that up till now there are terms which lack precise definition through inter-state consensus like "democracy," and "aggression." So Secretary-General Guterres, we wish you well. You will have your hands full. But you still have at your disposal tools which have proven their functional effectiveness. Primary among these are the 30 special agencies and programmes within the UN family of organisations, including, of course, your old office the UN High Commissioner for Refugees. There are also the non-governmental organisations around the world, representing what is referred to in the charter by "We the People." Above all, you are perceived worldwide as endowed with an unarticulated moral authority of a rare type in your neutrality. Let us not forget the central role of one of the six principal organs of the UN itself, namely the UN Secretariat. Under Article 98 of the charter, you are the decider over that main organ which is in session 24/7. You, or your representative, hire and fire. Through this vast bureaucracy, the entire family of the UN organisations is also influenced. In 1960, secretary-general Hammarskjold planted the flag of the independence of the international civil service. His clarion call, which rattled the Soviets and troubled the British, was broadcast through his Oxford University speech of that year, written for him by my late friend, the legal mind of the UN at the time, Oscar Schachter. On the other hand, your powers under Article 99 of the charter are discretionary. This article separates your executive capacity from that of being empowered to raise issues of war and peace, issues you can submit to either the Security Council or the General Assembly for consideration. Thus, this is an illusory power as decisions are not within your hands. Nonetheless, you have recognisable moral authority which may have consequences. In this regard, even symbolism can be a factor for good. You also have on your side interpretations of the charter in ways that were never expected before. In the absence of revision, interpretation accelerated decolonisation. It also gave birth to imaginative ways of leapfrogging over the veto power in the Security Council. An example of this is "the presidential statement" made by the secretary-general on behalf of the Security Council. As an engineer and mathematician, you, Secretary-General Guterres, may, in spite of the assessment above, be able to navigate the unwieldy UN ship through troubled waters towards the harbours of safety. Your Portuguese ancestors in the 17th and 18th centuries proved themselves experienced mariners. The writer is a professor of law at New York University.
