2008-09-03 13:36:39 - MANILA. Davide says non-members of powerful UN Security Council 'denied due process'

By Gloria Jane Baylon

Member States of the United Nations (UN) must be allowed greater participation in the proceedings of the powerful United Nations Security Council (UNSC) as part of hoped-for reforms in the world body.

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Many Member States, including the Philippines, believe that periodic reporting to the General Assembly is an area of Security Council reform which is the least controversial

and is immediately achievable.

It is also recommended that Rule 37 of the SC Rules of Procedure (SCROP) be amended to grant a UN Member State which is not a member of the Security Council but which is under its scrutiny the right to be present and to be heard during all proceedings.

This was the call of Philippine Ambassador to the UN, Hilario G. Davide Jr., in his statement at the recent open debate of the UNSC at its New York headquarters.

The Philippines is one of the founding members of the UN in 1946, with the late Carlos P. Romulo installed as president of the not-so-powerful UN General Assembly.

The UNSC is the most powerful organ of the UN, whose five permanent members are the United States, China, France, Russia and Great Britain. India, Japan and Brazil, even Germany, are among the late-coming "applicants" for an expanded SC.

Including the Philippines, other member-states can merely seek short-term non-permanent or ad hoc memberships on a rotation basis.

Davide, a luminary in international law and former Chief Justice of the Philippine Supreme Court, stressed that certain provisions in the SCROP denies many Member States 'due process (of law), 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," he continued.

In a dispatch from New York, the Philippine mission to the UN reported that Davide on Thursday last week pressed the relevance of greater participation when it is particularly considered that Member States are subject to scrutiny of the body.

"For the Security Council, calls for changes or reforms are becoming louder and stronger," he said. "In due course, it may even become irresistible."

At the debate, Davide proposed that the UNSC work particularly on its ROP in order to move forward the issue of reform.

"The Rules of Procedure of the Security Council, which have remained provisional for 62 years, must now cease to be provisional," Davide said.

Specifically, Davide asked that the Security Council also consider releasing periodic reports or substantive summaries to the General Assembly on matters pressed before the Council in the course of each year .

He stressed that periodic reporting would enable the general membership to gain a more current appreciation of the status of matters before the Council.

The Security Council should be accountable and transparent, by considering the wisdom and propriety of the desire of Member States to full information on issues the UNSC discussed, he said.

"They expect output documents to be faithfully or truly reflective of the discussions/deliberations in the Council," he said.

"In short, they want to know if, indeed, the Council has acted on their behalf per Article 24 of the (UN) Charter."

The ambassador said that 'this would remove any doubt that the Security Council has made the Rules of Procedure provisional to give it unlimited flexibility to disregard or change it at any time, thereby making its future judgments or actions unpredictable.'

"Such doubt should not be allowed a moment longer for it would not contribute to the respect and esteem due to the Security Council or to the strengthening of the trust and confidence in it of the Member States," Davide stressed.

The ambassador noted that "due process and the Rule of Law demand that Member States which are not members of the Security Council but are the subject of Security Council scrutiny should have the right to appear before the Council at all stages of the proceedings thereon to state or defend their position on the issue subject of or related to the scrutiny."

He pointed out that such participation by Member States is unfairly limited by Rules 37 and 38 of the Provisional Rules of Procedure.

In Section 37, such non-Security Council Member States may be invited to participate only as a result of a decision of the Council, and only when the Council considers that the interests of such non-Member are specially affected, or when such non-Security Council Member brings a matter to the attention of the Council in accordance with Article 35 (1) of the Charter.

"Why should the appearance of such non-Security Council Member be limited to only after a decision has been reached? And why should such appearance be at the discretion of the Council?

'This is a denial of due process, 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," he continued.

He also pointed out that under Rule 38, while any member of the UN invited to participate under Rule 37 or in application of Article 32 of the Charter may submit proposals and draft resolutions, these proposals or draft resolutions can be put to vote only at the request of a representative on the Security Council.

"Why allow the State concerned to submit proposals or draft resolutions when these cannot at all be voted upon unless a Council member so requests?

"If the proponent State has no friends in the Council, the right given to it to propose is rendered meaningless, an exercise in futility," he said.

Davide recommended that Rule 37 be amended to grant a UN Member State which is not a member of the Security Council but which is under its scrutiny the right to be present and to be heard during all proceedings.

He also recommended that Rule 38 be amended such that the proposals or draft resolutions submitted by such State shall be deliberated, acted upon and voted by the Security Council without the requirement of a request from a member.

Davide also pointed out that the increasing the general membership of the UN, requires that the Security Council hear the views of the general membership by increasing the number of meetings, including its informal meetings, which are open to the general membership.

"This will further promote accountability and transparency and tend to enhance more active cooperation of the general membership with the Council on the implementation of decisions taken on such matter," he said.

The ambassador said the Annual Report of the Council should be comprehensive and analytical, and must indicate the action taken by the Council and the views of the Members during the consideration of the agenda items.

He said these will provide the general membership the information as to how the individual Members of the Council justified their position on any issue, especially those concerning a Member State or when a Permanent Member exercised the veto power.

"These changes on reform in its working methods could have been successfully pursued much earlier were they not, unfortunately, mingled with or tied to the apron strings of other Security Council reform proposals, such as on the question of equitable representation on and increase in the membership of the Security Council, or even on the veto power," he pointed out.

He said the open debate is a clear message that reforms in the working methods of the Security Council can, and should, be taken separately from the other reform proposals that are more complex and complicated.