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Illustration by Laura Tran

In 2017, the Global Challenges Foundation began the search for a "new shape" for global governance. The Center for United Nations Constitutional Research responded with a submission entitled "Upholding the San Francisco Promise: The Roadmap to a Constitutionalized United Nations." this proposal included groundbreaking research about a path to meaningful UN reform, based on Article 109(3) of the UN Charter. The "San Francisco Promise" proposal was selected by GCF as a semi-finalist in its New Shape Prize, formed the basis for one of its five dedicated working groups, and was presented as a project at the inaugural Paris Peace Forum.


To read our semi-finalist submission to the New Shape Prize (full proposal), click here. 

To read the speech CUNCR Director Dr. Shahr-yar Sharei gave at the Paris Peace Forum, click here.

To read a shorter version of the proposal as published in GCF's quarterly newsletter, click here.
 

 

FULL PROPOSAL - SUBMISSION TO THE GLOBAL CHALLENGES FOUNDATION NEW SHAPE PRIZE

The submission proposes using the Review process in Article 109, Chapter XVIII of the UN Charter, particularly its Paragraph 3. When the United Nations was formed in San Francisco in 1945, there was a great deal of opposition to the democratic deficit of the Security Council and its veto. As a compromise, the permanent five members of the UN Security Council agreed to a clause that allowed for Charter Review, ten years after the UN came into force. This “San Francisco Promise” was activated in 1955, but was later breached and abandoned. The review conference endowed in the Charter, and legally still valid, could pave the way for a process of writing a constitution for the UN, allowing it to reinvent itself to better face current and future global challenges. Thus help transform the UN into a global governance fulfilling the objectives set out in the UN Charter’s preamble.

Click here to Download the Full Entry 
 

 

 

The San Francisco Promise, letting “we the peoples” govern the world:
Article 109(3) Rediscovered

Speech given by Dr. Shahr-yar Sharei at Paris Peace Forum, November 12, 2018

Click here to download a copy of the speech, or keep reading below.

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Greetings my fellow world citizens,

Have you ever asked yourself: who really rules our world Is it the United Nations?

The UN was created to maintain peace and security.  The Security Council and its permanent 5 members were given supra-national and extra-ordinary powers to make sure that conflicts are resolved peacefully and that there are no wars. 

Then why do we have an estimated 40 Million war and armed conflict casualties since World War-II? Not counting other injuries to our lives and economies. Imagine all that tens of trillions of dollars spent on war preparations, if it was instead spent to fight diseases, extreme poverty, and illiteracy. We would still have hundreds of billions left as peace dividend to reach our goals on climate change and Sustainable Development Goals. 

Just imagine. In Martin Luther Kings’ terms. Oh, what a dream!

In fact, who manages our economy? 

Is it the World Bank or the International Monetary Fund? is it the WTO

How about the world judiciary system? 

Well, ICJ lacks compulsory jurisdiction, and it only handles cases where they are voluntarily submitted by states. Therefor a perpetrator-state can refuse to go to court. In case of ICC it only handles certain crimes and does not have universal jurisdiction. Meaning that potential perpetrators from powerful states like Russia, China, and the United States who are not abiding by the Courts jurisdiction cannot be prosecuted. In fact the United States has recently declared the court is illegitimate and if any cases are brought against US nationals, the ICC judges would be arrested.  And by the way, where is the enforcement for these international courts? 

Who is in charge of disarming and disposing of our nearly 20,000 nuclear warhead? Is it the NPT (the Non-Proliferation Treaty)? Does NPT have an address?

And of course we have climate change. The UN Intergovernmental Panel on Climate Change just released a new report ringing the alarm bel to keep the global warming within 1.5 degrees Celsius.

So who is responsible for all of that?

Is it the UN, is the member states, is it COP? Does our global governance of climate and justice have an address? 

Some say that it is not governments who are in charge. But multinational corporations such as the military industrial complex or the oil companies.  Or more recently we hear people saying that it is perhaps Facebook and Google that are governing the world.
The real answer is, in varying degrees, in some cases it is some of the above, and in some cases none of the above. 

It is almost unbelievable that in the 21st century global governance is completely fragmented, with a multitude of international law instruments, with formal and informal regimes, and with some super powers above the law.

Multiple jurisdictions and multiple competencies. And in many cases – like in the case of the high seas, space and cyber space - no jurisdiction and no competences. No rule of law. 

Add to this confusion:

  • the lack of enforcement;
  • individuals and powerful states unilaterally pushing their agenda;
  • Countries putting themselves above international law;

And what we people, the global citizens have, is in fact not a potpourri of global governance, but a toxic soup of global anarchy!

The real problem is not lack of global structures or institutions; we probably have too many. The fundamental problem is a lack of global government and political will to make changes and an “election” system to introduce change. 

The real problem is that the people have no power, no say, and that our global institutions are not democratic. If reform to this system is even considered this is at best done in high-level committees and at worst behind closed doors in back chambers. 

But the beautiful city of Paris, and this forum, is no place for dystopian pictures of the world. So I am glad to say that In fact I am here today to tell you that the answer already exists.

The answer to these questions has been buried deep inside the Charter of the UN. To be precise in Article 109, which reads: 

A General Conference of the Members of the United Nations for the purpose of reviewing the present Charter may be held at a date and place to be fixed by a two-thirds vote of the members of the General Assembly (Par. 1) ….

… if such a conference has not been held before the tenth annual session of the General Assembly following the coming into force of the present Charter, the proposal to call such a conference shall be placed on the agenda of that session of the General Assembly. (Par. 3) …Note there is no veto to hold the review conference. Only qualified majority of both the General Assembly and the Security Council.

Yes, there is an actual legal obligation (it says “shall be placed”, not “can be placed”) within the treaty for a review conference. And yet it has never taken place. How can that be? 

Lets go back to 1945 Franklin Roosevelt and America and a majority of the states at the creation of the United Nations wanted to build something more than the failed League of Nations.

They moved away from sovereignty of states, which under Chapter VII can create enforceable international law. And together with the Security Council, they also created what they thought was just as important other “Councils”.

The Economic and Social Council they created was to handle all aspects of global economic, social, cultural, scientific and educational needs of the world. It was allowed to have subsidiaries (think of it as quasi ministries) where agencies such as the WHO (World Health Organization) and FAO (Food and Agriculture Organization), or UNESCO would be created. The Charter also recognizes our human rights and our gender equality and even our right to “full employment” but without much elaboration and constitutionalization.

The founders deliberately created a United Nations that would be more than just a Security Council resolving conflicts and keeping peace. They created an institution that would be governing global governance.

But they also realized that what they were creating was an unfinished work. That the decisions at the Security Council may not be fair. That the five unelected members could be there to the end of times. That those permanent members can veto and kill the decision of the majority at will. In fact, this undemocratic nature of the proposed Security Council, turned into an uprising in San Francisco of the majority of the states (almost 2/3) against the Dumbarton Oaks proposal and the so called “Yalta Formula”.

With the great opposition to the structure and the voting procedures at the Security Council, and the permanent five’s insistence on keeping their supreme status, the United States on behalf of the P5 offered a compromise:

By introducing Article 109 to the Charter, the possibility of a future review and revision of the Charter based on 2/3s majority was made possible. But this was not enough, the majority stated they wanted to set an expiration date for the mandates of the Security Council and a date to be set to renew the UN.

Then, to break the deadlock in San Francisco, came the great compromise, by adding Paragraph 3 to Article 109, where it was promised that at the latest, in 10 years’ time a review conference of the UN Charter would be held with just a majority vote of the General Assembly and the Security Council and no veto. San Francisco and the world were jubilant, and the Charter was unanimously adopted on June 22nd, 1945.
But the honeymoon at the UN was very quickly over. Wars and skirmishes popped up immediately, the veto was used immediately and just a few months later it was obvious to everyone that the Security Council was dysfunctional. Calls for UN reform started immediately. Knowing that quick fixes would not work, everyone’s focus and attention was on the promised 1955 charter review.

In 1955 everyone was excited about the possibility of change. The so called “constitutional” debates were held both in New York and San Francisco commemorating the 10th year anniversary of the UN. They outlined what the member states wished for in a renewed UN. Amongst others:

  • Compulsory jurisdiction of the ICJ
  • the creation of a Human rights Council and court
  • phased elimination of the veto; and
  • nuclear disarmament

At the 1955 annual session, Secretary General Hammarskjold put the activation of Article 109(3) on the GA’s agenda, the General Assembly by an overwhelming majority, Res. 992 (X), and the Security Council adopted it. An arrangements committee was set up to choose the time and place of the review conference.

For the next 12 years, the P5, with the exception of China, one by one, started losing interest in holding the review. They could not do this legally, but they kept on postponing the conference on procedural grounds. At the last rendezvous to hold the review conference in 1967, they decided to keep the conference in “being” but without holding it.

This way they de facto shoved it under the rug and derailed the process into multiple, often fruitless UN reform committees and forums. One of those committees which has met for over 40 years is called the “Special Committee” on Charter, which as part of its rules of procedures only considers reforms as long as they do not require Charter change. 

Let that one sink in for a minute.

Despite a legal obligation to review the charter, for the past 40 years only those attempts were made to reach UN reform that did not actually require charter reform. That is not only a complete oxymoron it is a breach of the Charter itself. 

So why is all of this this so relevant?

Let’s look at it as if we were at national level. At national level We have created government Institutions. We have created parliaments - elected representatives and leaders and hold them responsible and accountable. We have created courts and police forces and we ensure that different branches of the government- legislative, executive and judiciary - are kept separate and independent.  In other words, we created “government of the people, by the people for the people”.

But at international level, due to the post war international circumstances we were forced to start up with a system that does not have those checks and balances. A system in which the P5 are de facto judge, jury and executioner. And the founders knew it. That is why they wrote a review clause in the founding document. In what we at national level would call the constitution. So what would happen at national level if the government showed complete disregard for its own constitution?

At national level we would at least call for new elections. So, similar to the election process in our national models, where we introduce change in how we are governed, think of the UN Charter review conference as the legitimate forum to introduce change in global governance context.

And if our national government would not allow us to have elections there would be protest, uprising and revolt. In that same spirit I stand here before you today to reignite the flame of Article 109. I stand here to start a citizens track II diplomacy together with coopting some champion states. To remind all the member states and the leaders that we are in the breach of Charter that we have not only a moral, but also legal obligation to hold a review conference. 

Why is the review conference so important? 

Because it has great transformational potential. According to the Charter, a review conference once started is independent of the General Assembly and the Security Council. It is not under the influence and establishment of New York. In fact, according to the legislative history, it is not even supposed to be in New York. This is the forum where member states gather, similar to the EU and other treaties, periodically meet, to review and renew the institutional needs. 

Dear friends,

Today we have heard both in Paris and elsewhere, many fantastic UN global governance proposals! 

  • How to keep peace and security by reforming the Security Council.
  • How to create a UN parliamentary assembly
  • How to turn the GA to a representative and legislative body
  • Or how to give the human rights a real court and to let it have teeth. 

And there are other, perhaps less radical changes, which are needed:

  • limiting the use of the veto or its elimination. 
  • Expanding ICJ and ICC jurisdictions and competencies
  • And, turn the unused and outdated Trusteeship Council into a Trusteeship Council for the Environment.

Or, perhaps such a UN review conference would reach a “constitutional moment”. Similar to what United States experienced at the Philadelphia convention, the Meiji Reform (Renovation) of Japan, or the European Union experienced accomplished with the Maastricht Treaty.

The possibilities and potentials are limitless. 

Friends, global citizens, we can introduce change. And the great news is that the legal basis for the platform is already there. It was build with the San Francisco Promise in 1955.

Twelve years later in 1967, coinciding with the review conference being shoved under the rug, Scott McKenie sang his legendary “If you are going to San Francisco”. 
And in that song he sings not only about “flowers in your hair” but he sings about the fact that “all across the nation there are people in motion. That there's a whole generation with a new explanation”.

Let us be that new generation.  Let us be those people in motion

Let us hold our leaders accountable to the promise they made. Because it is only when that promise of a regular review conference is fulfilled, and we can govern ourselves, that the opening words of the charter “we the people” have been given true meaning.

Thank you.
 

 

 

Global Challenges Foundation Quarterly Report #7, November 2018. “From Idea to Prototype”

Click here to download a copy of the report, or keep reading below.

Upholding the San Francisco Promise: The Roadmap to a Constitutionalised United Nations

Dr. Shahr-Yar Sharei, working group coordinator

What mechanism could be harnessed in order to review and renew the UN charter without facing institutional gridlock? When the UN was established, the winners of the Second World War were given disproportionate power, in the form of a permanent seat and veto rights on the Security Council. This was, however, not initially intended to be a lasting situation: article 109 Par. 3 of the UN Charter established that a complete review would happen after ten years. A committee was formed as planned in 1955, but the process got stalled and never resulted in proper reform. Could article 109(3) offer a pathway to reform of the UN Charter? Consultation would be needed in order to test the interest and commitment of parties, but should legality be confirmed, triggering article 109 (3) could be a way to bypass opposition from the Permanent Five. A UN Charter Review, made possible by this process, could thus be the first step towards a fully constitutionalised UN.

 

Our UN founding fathers set the goal of maintaining international peace and security as the primary objective of the United Nations. The Security Council was established as the main organ entrusted with that responsibility. In the original design of the UN, it was made the exclusive broker in international law to authorise the use of sanctions, both non-military and military. Almost immediately, however, the Security Council was paralysed by the realpolitik of the Cold War era, and even after it ended, the five permanent members of the Security Council have continued to use or threaten to use the veto power granted them to protect their own self-interests. 

As a result, we now see a world where peace and security are not adequately maintained by the Security Council. Indeed, it is a far more common occurrence that failures to prevent or end conflicts can be linked to the intransigence of the Security Council. What is less well-known, however, is that concerns over this unequal system are older than the UN itself. At the founding San Francisco conference, the Permanent Five made a concession to objections by weaker states: they agreed to a Charter review and revision process, incorporated as Article 109, as a possible way to correct the initial power imbalance. According to Paragraph 3 of Article 109, they further agreed to a facilitated way of holding the review conference ten years in the future. The holding of the Charter review was adopted as General Assembly resolution 992(X) in 1955 and approved by the Security Council. A committee was formed, but the endeavour never came to fruition: the committee repeatedly delayed convening the review, and ultimately stopped meeting altogether. However, it was never officially disbanded, meaning that it remains legally in existence, and that the Charter Review as per Article 109 is still on the table. 

What mechanism could be harnessed in order to review and renew the UN charter without facing institutional gridlock?

We believe that we might bring about changes in the institution, and uphold the ‘San Francisco Promise’, by harnessing this mechanism inherent in the UN structure from its inception. The strength of this approach to global governance reform is that it has already begun – the General Assembly and Security Council have both voted to have a Charter Review conference. Working to reinitiate the review process therefore sidesteps many of the legal and procedural obstacles seen in other efforts for global governance reform. Furthermore, by pursuing a full Charter Review, we are opening up the possibility for deeper structural changes, rather than being limited to the kinds of smaller reforms that are typically possible without any changes to the UN Charter itself. While pursuing a large magnitude of reform does mean that more political effort will be required to convince countries to accept the review process, we do also think that the lessening of legal barriers makes up for this.

Our first step, therefore, is to strengthen the legal case for Charter Review as much as possible. While we believe that there is a clear duty to trigger Article 109, we understand that there will still be challenges to this proposal. We will therefore consider potential counters to our proposal and build a strong case for its adoption, as well as mapping out the exact legal procedure that will be necessary to do so.

Assuming that reinitiating the review process is legally valid, the next step to assess the viability of this approach would be to test potential support from key countries and regions. For this, three questions need to be addressed. The first is whether UN members would support opening up the Charter for update at a review conference, as Article 109 calls for. The second is whether they would be likely to vote in favour of a new Charter that abolishes the veto and allows for a more equal distribution of power on the global level – for instance, by establishing a UN Parliamentary Assembly? Finally, would they be likely to ratify a new UN charter, regardless of how it had voted at the review conference itself. 

Once armed with this information, we will have a solid foundation from which we can build a targeted campaign to re-trigger Article 109 and hold a Charter Review Conference. The campaign, through track II diplomacy, would target a coalition of willing states to push for Charter review. The countries that the San Francisco promise was made to, as well as those countries seeking more substantive UN transformation in recent years, would be targeted and made aware of the potentials of pursuing the path offered by article 109. Further, by introducing domestic referendums and petitions in key regions and states, such as the European Citizens Initiative, or the US ballot and petition system, global citizens’ interest and awareness would be raised in calling for a more democratic and effective United Nations. 

Unfortunately, although the San Francisco Promise can get us to Charter Review without any threat of the veto, whatever comes out of the review process will require the assent of all five permanent members. However, we believe that a veto is much less of a threat in the context of ratifying an entirely new UN Charter. If the negotiated Charter has widespread support from most other countries in the world (a two-thirds majority is required), there will be significant pressure on the Permanent Five to accept it as well. Furthermore, this would be a vote far removed from the diplomatic chambers of the UN, putting the decision in the hands of national legislative bodies. As a result, we believe that there will also be more pressure from the public including the national citizens of the Permanent Five to accept a more representative and effective system of global governance. The cost of exclusion of any single country from a new global order would simply be too high.

The unique nature of our proposal is that it focuses much more on the path towards UN reform, rather than what the reform itself would look like. However, based on the problems we see with global governance as it stands now, certain directions of reform are clear – in particular, we believe that the UN system must be more democratised, in direct contrast to the inequities of the current Security Council as previously discussed. This democratisation can take a number of forms. The first option would be to make changes to the structure of the UN, such as adding a parliamentary body that more directly represents individuals. Another, more comprehensive, option would be to aim for the constitutionalisation of the UN Charter – that is, transforming it into a binding document that includes an enshrined bill of rights for all citizens. Historically speaking, constitutional documents do not arise on their own, but from review conferences – the American constitution from Philadelphia, for instance, or the Maastricht Treaty for the EU. Therefore, we see UN Charter Review as the best, and possibly only, way to get a document that meaningfully enshrines and enforces human rights on a global scale.

There are many potential paths forwards to make meaningful change. Charter Review could allow for the most significant and comprehensive change all at once. While the road to Charter Review will not be an easy one, however, and despite failed attempts for substantive UN and Security Council reform in the past, we firmly believe that this endowed path is still viable, and perhaps the only option to UN transformation.

Working group members:
Dr. Shahr-Yar Sharei, working group coordinator, Andreas Bummel, Huaru Kang, Dr. Roger Kotila, Hans Leander, Dr. Timothy Murithi, Francisco Plancarte, Dr. Mais Qandeel, Marjolijn Snippe, Maria Ivone Soares, Dr. Takehiko Uemura, Maria Vizdoaga, Kelci Wilford