Prove, Peter N --- "Reform at the Un: Waiting for Godot Special Edition: The United Nations and International Legal Order" [2005] UQLawJl 21; (2005) 24(2) University of Queensland Law Journal 293

• REFORM AT THE UN: WAITING FOR GODOT?
• I. Introduction
• II. ‘A More Secure World’ to ‘In Larger Freedom’
• III. The 2005 World Summit: What was, and was not, achieved with regard to reform of the UN Organization
• A. Perfecting the Triangle of Development, Freedom and Peace
• B. Responsibility to Protect
• C. Disarmament and Non-Proliferation
• D. Terrorism
• E. Peacebuilding Commission, Fund and Office
• F. Security Council Reform
• G. Reform of the Economic and Social Council
• H. Human Rights Council
• I. Strengthening the Office of the High Commissioner for Human Rights
• J. Management and Oversight
• K. UN-Civil Society Relations
• L. Charter Amendments
• IV. Conclusion

---

REFORM AT THE UN: WAITING FOR GODOT?

PETER N. PROVE^[∗]

Estragon: Nothing to be done.
Vladimir: I'm beginning to come round to that opinion. All my life I've tried to put it from me, saying Vladimir, be reasonable, you haven't yet tried everything. And I resumed the struggle.

Samuel Beckett, Waiting for Godot

I. Introduction

There has probably been hardly any point in its history at which the United Nations was not undergoing reform of one sort or another. However, the 60th anniversary of the organization—and the five-year review of the Millennium Declaration—have coincided with one of the more comprehensive attempts to re-engineer fundamental elements of the system. This attempt is ongoing, and it is too early for a final analysis. However, this article attempts to trace the current cycle of UN reform efforts, from the establishment by the UN Secretary-General of a ‘High-level Panel on Threats, Challenges and Change’ in late 2003 through to the World Summit that took place in New York in mid-September 2005—including the current state-of-play in the most recent post-Summit negotiations.

Rather than a complete and comprehensive review of all the elements of the 2005 World Summit outcome, the article focuses on areas in which the Summit addressed itself to matters directly or indirectly concerning institutional reform of the UN organization. For this reason, it does not examine the many international development policy issues addressed at the Summit. The article concentrates on the major elements of the UN reform agenda on which the Summit made discernible progress, or in respect of which expected action did not materialize. It also introduces the Australian government’s expressed perspectives on some of these issues, and the perspectives of some of Australia’s main strategic partners—in particular the United States of America.

II. ‘A More Secure World’ to ‘In Larger Freedom’

The latest round of UN reform efforts properly commenced with the establishment by the UN Secretary-General Kofi Annan of a ‘High-Level Panel on Threats, Challenges and Change’. The Secretary-General proposed this initiative in his address to the General Assembly on 23 September 2003, barely one month after the attack on the UN headquarters in Baghdad in which 22 people were killed—including the Special Representative of the Secretary-General and UN High Commissioner for Human Rights, Sergio Vieira de Mello.

In that address, the Secretary-General highlighted the new threats (‘or, perhaps, old threats in new and dangerous combinations’) faced by the international community, such as terrorism and the proliferation of weapons of mass destruction.^[1] However, he did not sidestep the problem posed by UN Member States taking unilateral ‘pre-emptive’ action outside the collective security framework. ‘This logic’, he declared, ‘represents a fundamental challenge to the principles on which, however imperfectly, world peace and stability have rested for the last fifty-eight years.’^[2] If adopted, it ‘could set precedents that resulted in a proliferation of the unilateral and lawless use of force, with or without justification.’^[3] He acknowledged, however, that

it is not enough to denounce unilateralism, unless we also face up squarely to the concerns that make some States feel uniquely vulnerable, since it is those concerns that drive them to take unilateral action. We must show that those concerns can, and will, be addressed effectively through collective action.^[4]

The Secretary-General made it clear that in his view the international community had come to ‘a fork in the road’, and that hard questions would have to be faced ‘about the adequacy, and effectiveness, of the rules and instruments at our disposal’.^[5] He explicitly contemplated—and invited—‘far-reaching institutional reforms’ to help address these threats.^[6] The High-Level Panel was established in order to assist the Secretary-General in making recommendations to the General Assembly for relevant and effective action.

The Panel’s primary focus was to be on current threats to peace and security, and the role of collective action and the functioning of the United Nations in response to these threats. The formal terms of reference required the Panel to:

1. Examine today’s global threats and provide an analysis of future challenges to international peace and security.

2. Identify clearly the contribution that collective action can make in addressing these challenges.

3. Recommend the changes necessary to ensure effective collective action, including but not limited to a review of the principal organs of the United Nations.^[7]

However, the Panel was also intended to examine other global challenges, insofar as these might influence or connect with threats to peace and security. In his September 2003 address to the General Assembly, the Secretary-General had underlined the linkages between ‘the struggle for development and poverty eradication, starting with the achievement of the Millennium Development Goals; …the common struggle to protect our common environment; …the struggle for human rights, democracy and good governance’, and the pursuit of peace and security.^[8] While acknowledging the legitimacy of concerns about terrorism and weapons of mass destruction, he observed that ‘a world where many millions of people endure brutal oppression and extreme misery will never be fully secure, even for its most privileged inhabitants’.^[9]

The Panel’s terms of reference stated that although its work was to be ‘confined to the field of peace and security’, this term was to be ‘broadly interpreted’.^[10] The Panel should accordingly ‘extend its analysis and recommendations to other issues and institutions, including economic and social ones, to the extent that they have a direct bearing on future threats to peace and security.’^[11] The terms of reference acknowledged that:

While there may continue to exist a diversity of perception on the relative importance of the various threats facing particular Member States on an individual basis, it is important to find an appropriate balance at the global level. It is also important to understand the connections between different threats.^[12]

Former Prime Minister of Thailand Anand Panyarachun was appointed to chair the High-Level Panel,^[13] which included Gareth Evans (former Foreign Minister of Australia, and presently serving as President and Chief Executive of the Brussels-based International Crisis Group) and Brent Scowcroft (former US National Security Advisor during the administrations of Presidents Ford and Bush Snr.) among its 15 other members.^[14] The High-Level Panel released its report—‘A more secure world: Our shared responsibility’—on 2 December 2004 (‘High-Level Panel report’)^[15] setting out some 101 recommendations covering the following wide spectrum of issues:

• Poverty, infectious disease and environmental degradation (recommendations 1-11).

• Conflict between and within States (recommendations 12-20).

• Nuclear, radiological, chemical and biological weapons (recommendations 21-37).

• Terrorism (recommendations 38-44).

• Transnational organized crime (recommendations 45-49), including a recommendation for the establishment of a robust capacity-building mechanism for rule-of-law assistance.^[16]

• The role of sanctions (recommendations 50-52).

• Using force: rules and guidelines (recommendations 53-57), including:

- an endorsement of ‘the emerging norm that there is a collective international responsibility to protect, exercisable by the Security Council authorizing military intervention as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of humanitarian law which sovereign Governments have proved powerless or unwilling to prevent.’^[17]

- a recommendation that the Security Council, when considering whether to authorize or endorse the use of military force, address a basic set of five criteria of legitimacy (reflecting established ‘just war’ theory).^[18]

• Peace enforcement and peacekeeping capability (recommendations 58-62), including a recommendation that the General Assembly authorize the establishment of a ‘small corps of senior police officers and managers (50-100 personnel) who could undertake mission assessments and organize the start-up of police components of peace operations’.^[19]

Post-conflict peacebuilding (recommendations 63-65), including a proposal for the establishment of a ‘standing fund for peacebuilding’ for the purpose of financing ‘the recurrent expenditures of a nascent Government, as well as critical agency programmes in the areas of rehabilitation and reintegration.’^[20]

• Protecting civilians (recommendations 66-69).

• The General Assembly (recommendations 70-72).

• The Security Council (recommendations 73-81), providing two alternative models for reform and enlargement of the Security Council in order to make it more representative of the broader membership, and (so far as developed countries are concerned) linking eligibility for Security Council membership with progress towards the agreed development assistance target of 0.7% of GNP, as well other traditional criteria.^[21]

A Peacebuilding Commission (recommendations 82-85), proposing the establishment of a new organ to focus on the tasks of peacebuilding.^[22]

Regional organizations (recommendation 86), recommending, inter alia, that regional organizations that have a capacity for conflict prevention or peacekeeping should place such capacities in the framework of the UN Standby Arrangements System.^[23]

The Economic and Social Council (recommendations 87-89), recommending, inter alia, that the UN Economic and Social Council transform itself into a ‘development cooperation forum’, focusing on the themes contained in the Millennium Declaration, providing guidance on development cooperation to the governing boards of the UN funds, programmes and agencies, and strengthening UN coordination with the Bretton Woods institutions and bilateral donors.^[24]

• The Commission on Human Rights (recommendations 90-94), making recommendations concerning both the membership and functioning of the Commission on Human Rights (including that the membership of the Commission be expanded to universal membership), and the role of the High Commissioner for Human Rights.^[25]

The Secretariat (recommendations 95-96), proposing, inter alia, the creation of an additional Deputy Secretary-General position with responsibility for peace and security, a one-time review and replacement of personnel, and increased Secretariat capacity.^[26]

The Charter of the United Nations (recommendations 97-101), recommending, inter alia, the deletion of Chapter XIII (regarding the Trusteeship Council) and Article 47 (regarding the Military Staff Committee), and revision of the references to ‘enemy States’ in Articles 53 and 107.^[27]

The Secretary-General’s subsequent report to the General Assembly—‘In larger freedom: towards development, security and human rights for all’ issued on 21 March 2005^[28]—picked up many, but not all, of the issues raised by the High-Level Panel. But the Secretary-General’s recommendations did not always go in the same direction as those made by the Panel. For example, the High-Level Panel had recommended that the membership of the Commission on Human Rights be made universal (i.e. that its membership should consist of all the Member States of the UN, rather than the present complement of 53 members periodically elected by the UN Economic and Social Council).^[29] The Secretary-General, on the other hand, recommended the replacement of the Commission on Human Rights with a smaller ‘Human Rights Council’ (whose members would be elected directly by the General Assembly by a two-thirds majority).^[30]

In the Secretary-General’s report, the interconnectedness of development, security and human rights was strongly articulated:

The notion of larger freedom … encapsulates the idea that development, security and human rights go hand in hand. … Not only are development, security and human rights all imperative; they also reinforce each other. …Accordingly, we will not enjoy development without security, we will not enjoy security without development, and we will not enjoy either without respect for human rights. Unless all these causes are advanced, none will succeed.^[31]

The Secretary-General called on Member States to:

affirm and commit themselves to implementing a new security consensus based on the recognition that threats are interlinked, that development, security and human rights are mutually interdependent, that no State can protect itself acting entirely alone and that all States need an equitable, efficient and effective collective security system; and therefore commit themselves to agreeing on, and implementing, comprehensive strategies for confronting the whole range of threats, from international war through weapons of mass destruction, terrorism, State collapse and civil conflict to deadly infectious disease, extreme poverty and the destruction of the environment.^[32]

The Secretary-General’s report also urged Member States to ‘[e]mbrace the “responsibility to protect” as a basis for collective action against genocide, ethnic cleansing and crimes against humanity, and agree to act on this responsibility’.^[33] Although he recognized that this responsibility lies first and foremost with each individual State, to protect its own population, the Secretary-General proposed that:

if national authorities are unwilling or unable to protect their citizens, then the responsibility shifts to the international community to use diplomatic, humanitarian and other methods to help protect civilian populations, and that if such methods appear insufficient the Security Council may out of necessity decide to take action under the Charter, including enforcement action, if so required.^[34]

Other recommendations contained in the Secretary-General’s report with direct implications for reform of the United Nations system include those calling for:

• Reform of the Security Council, to make it more broadly representative of the international community as a whole and the geopolitical realities of today, expanding its membership to meet these goals (offering the same two alternative models proposed in the High-Level Panel report).^[35]

The Security Council to adopt a resolution setting out principles for the use of force.^[36]

The establishment of a Peacebuilding Commission, and a voluntary standing fund for peacebuilding.^[37]

Reform of the Economic and Social Council, in order to serve as a high-level development cooperation forum, and mandating it to hold annual ministerial-level assessments of progress towards agreed development goals, particularly the Millennium Development Goals.^[38]

Recognition of the need for a more integrated structure for environmental standard-setting, scientific discussion and monitoring, and treaty compliance, relating to the development agencies so as to ensure an integrated approach to sustainable development.^[39]

• Member States to pledge full compliance with all articles of the Treaty on the Non-Proliferation of Nuclear Weapons, the Biological and Toxin Weapons Convention, and the Chemical Weapons Convention in order to further strengthen the multilateral framework for non-proliferation and disarmament.^[40]

Member States to develop legally-binding instruments to regulate the marking, tracing and illicit brokering of small arms and light weapons.^[41]

The conclusion of a convention on nuclear terrorism as a matter of urgency, and a comprehensive convention on terrorism before the end of the sixtieth session of the General Assembly.^[42]

The establishment of a UN civilian police standby capacity.^[43]

The creation of a ‘Democracy Fund’ to provide funding and technical assistance to countries seeking to establish or strengthen their democracy.^[44]

Amending the Charter by eliminating the references to ‘enemy States’ in Articles 53 and 107, deleting Article 47 on the Military Staff Committee, and deleting Chapter XIII on the Trusteeship Council.^[45]

Australia was among many states to welcome the Secretary-General’s report, affirming that it contained ‘action-oriented and ambitious measures which, taken as a whole, can effect significant improvements to the UN and its ability to respond to the diverse threats and challenges facing us in the 21^st century.’^[46]

However, by the time the World Summit^[47] convened in New York on 14-16 September 2005 in order, inter alia, to consider these reform proposals, the UN had descended into a major credibility crisis due primarily to the scandal surrounding the management of the ‘Oil-for-Food’ programme in Iraq and damaging findings in the reports of the Independent Inquiry Committee chaired by Paul Volcker.^[48] Much depended on the Summit producing demonstrably adequate reforms to an organization increasingly seen in powerful parts of its constituency as not only inefficient but corrupt.

Unfortunately, the outcome of the Summit^[49] was generally reviewed as disappointing at best, and a failure at worst. Gareth Evans is reported to have called it ‘a deep disappointment’, ‘a huge wasted opportunity’ and ‘close to a disaster’.^[50] Another commentator—former senior UN staff member—was moved to suggest breaking the United Nations into ‘[a] million little pieces’, dissolving the Security Council, the General Assembly and the Secretariat, and letting the agencies and programmes of the UN (such as the UN High Commissioner for Refugees, the UN Development Program, and the World Food Program) operate independently.^[51] The Secretary-General and members of the General Assembly alike acknowledged the disappointingly limited nature of the Summit’s achievements.^[52] The Secretary-General has, however, declared the glass to be ‘at least half full’.^[53] And George J. Mitchell, former Majority Leader of the US Senate and Co-Chair of the US Congressional Task Force on the United Nations, concluded that it would be wrong to write off either the current reform effort or the UN itself, highlighting the positives in the 2005 World Summit Outcome as a starting point for further reform.^[54]

Nonetheless, at the mature age of 60, the United Nations remains at a crossroads from which many had hoped it would by now have moved forward. The 2005 World Summit Outcome clearly did not fulfill the hopes of many of those who expected it to enunciate a clear and radical new point of departure. On the other hand, important new understandings were indeed reached, and processes set in motion that may—or may not—lead to a renewal of the United Nations’ role in the 21^st century.

III. The 2005 World Summit: What was, and was not, achieved with regard to reform of the UN Organization

A. Perfecting the Triangle of Development, Freedom and Peace

As he recalled in the introduction to his report ‘In larger freedom’, Kofi Annan said when he was first elected as UN Secretary-General in 1997 that the United Nations must aim ‘to perfect the triangle of development, freedom and peace’.^[55] Eight years later, he used his latest report to press for a clear acknowledgment of the interconnectedness and interdependence of development, security and human rights. The 2005 World Summit responded:

We acknowledge that peace and security, development and human rights are the pillars of the United Nations system and the foundations for collective security and well-being. We recognize that development, peace and security and human rights are interlinked and mutually reinforcing.^[56]

The UN Charter defines the major purposes of the United Nations as being:

• To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression … and to bring about by peaceful means… adjustment or settlement of international disputes …

• To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples …

• To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms for all …^[57]

It is apparent, comparing the Charter language to the Summit’s pronouncement on this matter, that the 2005 World Summit Outcome contains a significant restatement of the fundamental purposes of the UN. Certainly, Amnesty International described this unambiguous acknowledgement of human rights as one of the three pillars of the United Nations as a long overdue concrete advance in human rights protection.^[58]

Moreover, the Secretary-General subsequently highlighted the Summit Outcome in this respect as ‘a sort of intellectual breakthrough’, noting that it was the first time that the UN Member States acknowledged ‘the indivisible links’ between peace and security, development and human rights.^[59]

B. Responsibility to Protect

In a potentially significant revision of the Westphalian conception of state sovereignty on which the UN is founded, the Summit accepted the notion of a collective responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. Whilst each individual state is said to have the responsibility to protect its population from such events, the World Summit declared that:

The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means … to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action … through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.^[60]

The responsibility to protect was described in both the High-Level Panel report and the Secretary-General’s report as an ‘emerging norm’. Indeed, the World Summit’s adoption of this principle might be regarded as an implicit political affirmation of a legal norm articulated through the ‘codification and progressive development’ work of the International Law Commission (ILC) concerning responsibility of states for internationally wrongful acts. Draft articles on this topic were adopted by the ILC at its 53^rd session in 2001,^[61] and Part II Chapter III (articles 40 and 41) thereof addresses the question of serious breaches of obligations under peremptory norms of general international law.

Under article 41(1) of the ILC’s draft articles, states would be required to cooperate to bring to an end—through lawful means—any ‘serious breach … of an obligation arising under a peremptory norm of general international law.’^[62] As examples of peremptory norms of general international law a serious breach of which would activate the provisions of this chapter, the ILC’s commentaries to the draft articles offer the prohibition of aggression, and the prohibitions against slavery and the slave trade, genocide, torture, racial discrimination and apartheid.^[63] It also includes in this non-exhaustive list of generally accepted peremptory norms the basic rules of international humanitarian law applicable in armed conflict, and the right of self-determination.^[64] Article 40(2) stipulates that a breach of such an obligation is ‘serious’ (and engages the provisions of this chapter) if it involves ‘a gross or systematic failure by the responsible State to fulfill the obligation.’

As the commentaries note, article 41(1) does not prescribe in detail the form of cooperation required of States to bring such a breach to an end—‘[b]ecause of the diversity of circumstances which could possibly be involved’.^[65] ‘Cooperation could be organized in the framework of a competent international organization, in particular the United Nations. However, paragraph 1 also envisages the possibility of non-institutionalized cooperation.’^[66]

Neither does Article 41(1) prescribe what measures states should take in order to bring an end to serious breaches of such obligations. ‘Such cooperation must’, as recalled in the commentaries, ‘be through lawful means, the choice of which will depend on the circumstances of the given situation.’^[67]

It is, however, made clear that the obligation to cooperate applies to States whether or not they are individually affected by the serious breach. What is called for in the face of serious breaches is a joint and coordinated effort by all States to counteract the effects of these breaches. It may be open to question whether general international law at present prescribes a positive duty of cooperation, and paragraph 1 in that respect may reflect the progressive development of international law. But in fact such cooperation, especially in the framework of international organizations, is carried out already in response to the gravest breaches of international law and it is often the only way of providing an effective remedy. Paragraph 1 seeks to strengthen existing mechanisms of cooperation, on the basis that all States are called upon to make an appropriate response to the serious breaches referred to in article 40.^[68]

The Summit asked the General Assembly to continue consideration of the ‘responsibility to protect’ and its implications. It seems desirable that any such further consideration should more explicitly integrate the results of the ILC’s examination of the question of the responsibility of states for internationally wrongful acts, and especially concerning the consequences of serious breaches of obligations under peremptory norms of general international law.

In the meantime, the Secretary-General has identified this element of the Summit outcome as ‘[p]erhaps most precious to me’—calling it ‘the inescapable lesson of our failures in Bosnia and Rwanda’—but acknowledged that it still remains be acted upon when put to the test.^[69] Likewise, Amnesty International has noted that the Summit’s decision with regard to the ‘responsibility to protect’ ‘reinforces existing responsibilities under customary and conventional international law, and reaffirms that human rights are a concern of the international community as a whole that transcends state sovereignty’, but that ‘[w]hether states will implement their newly established resolve, and how well they will do so, will depend on the political will of the permanent five members of the Security Council to act to prevent and halt perpetration of these international crimes in the future’.^[70] In the same context, Amnesty International recalled that ‘Security Council members failed to do so in Rwanda and, more recently, to act promptly and decisively on Sudan, when governments put politics once more above human rights,’ and renewed a call to the permanent members of the Security Council ‘not to exercise their veto when addressing situations of genocide, war crimes, ethnic cleansing and crimes against humanity.’^[71]

Ambassador John Bolton, Permanent Representative of the United States of America to the UN, also highlighted ‘the important progress we made in the section on the “Responsibility to Protect”, which moves us toward a new strengthened international moral consensus on the need of the international community to deal with cases involving genocide, war crimes, ethnic cleansing, and crimes against humanity.’^[72] ‘We were pleased’, he declared, ‘that the Outcome Document underscored the readiness of the [Security] Council to act in the face of such atrocities, and rejected categorically the argument that any principle of non-intervention precludes the Council from taking such action.’^[73] Australia also welcomed the Summit’s adoption of the ‘responsibility to protect’.^[74]

Despite this sort of warm reception, or perhaps because of it, others harbour misgivings. Indonesia, for example, expressed ‘reservations concerning the concept of ‘responsibility to protect.’ Indeed, we share the view that it is uncomfortably similar to the so-called concept of ‘humanitarian intervention,’ which lacks basis in the Charter and in international law.’^[75] However, in his address to the High-Level Plenary meeting on 16 September 2005, Indonesian President Susilo Bambang Yudhoyono declared that ‘[w]e need a consensus on the responsibility to protect people from genocide, ethnic cleansing and crimes against humanity. To this end, force should be used only when all other means have failed.’^[76]

It should at least be noted that although the language adopted by the Summit includes reference both to ‘appropriate diplomatic, humanitarian and other peaceful means’ and to possible action under Chapter VII of the Charter,^[77] there is, compared to the Charter itself, a relative lack of clear emphasis on the necessity of exhausting options under Chapter VI^[78] before resorting to Chapter VII powers.

C. Disarmament and Non-Proliferation

All commentators agree that the Summit failed on the pressing questions of disarmament and non-proliferation of nuclear weapons. The Secretary-General has called this ‘the biggest gap’ in the World Summit Outcome.^[79] In what he described as a ‘you first—no you first’ act, the Secretary-General noted that some states gave absolute priority to non-proliferation, while others insisted that efforts to strengthen the Non-Proliferation Treaty (NPT) must include further steps towards disarmament; as a result, ‘the failure of the NPT review conference in May was repeated.’^[80] The Secretary-General expressed his concern that ‘this summit may come to be remembered only for its failure to halt the unraveling of the non-proliferation regime—and its other real successes would then indeed be overwhelmed.’^[81]

Australia had at an early stage in the negotiations identified strengthening the multilateral framework for arms control and non-proliferation as a key priority. In a statement delivered to the General Assembly on 7 April 2005, Australian Ambassador and Permanent Representative to the United Nations noted that

As Comprehensive Test Ban Treaty Article XIV Coordinator for 2005-2006 and President-designate for the 2005 Article XIV Conference in New York, to be held shortly after the summit, Australia is particularly mindful of the responsibility we have to seek effective arms control outcomes at the summit.^[82]

It wasn’t to be. At the opening of the Comprehensive Nuclear-Test-Ban Treaty Article XIV Conference that subsequently took place in New York on 21-23 September 2005 (with Australia as Chair),^[83] Secretary-General Annan remarked that despite the continuing threat posed by nuclear weapons, ‘we are not, as yet, rising to this challenge.’^[84] Referring to the outcome of the World Summit, he said that ‘[f]or the second time in four months, States could not agree on the way forward on disarmament, non-proliferation, and peaceful uses of nuclear energy. This was a significant failure’.^[85]

Although the United States expressed disappointment ‘that member states were not able to agree on text that we felt addressed the most pressing threats the international community faces’,^[86] the primary concern of the US in this context was on the non-proliferation side of the ‘you first—no you first act’. The US is very clear, for example, that it does ‘not support the report’s call for the entry into force of the Comprehensive Nuclear-Test-Ban Treaty. The United States has signed the CBTB, but has no intention of ratifying it.’^[87]And, as Ambassador Bolton puts it, ‘under the terms of the treaty, it will not enter into force unless all five of the legitimate nuclear weapons states ratify it.’^[88]

D. Terrorism

The Summit issued a strong condemnation of ‘terrorism in all its forms and manifestations, committed by whomever, wherever and for whatever purposes’.^[89] At the same time, the Summit recognized that ‘international cooperation to fight terrorism must be conducted in conformity with international law’, and that ‘States must ensure that any measures taken to combat terrorism comply with their obligations under international law, in particular human rights law, refugee law, and international humanitarian law.’^[90] A related recommendation contained in the Secretary-General’s report for the creation of a special rapporteur who would report to the Commission on Human Rights on the compatibility of counter-terrorism measures with international human rights law^[91] had already been taken up by the 61^st session of the Commission.^[92]

A provision included in previous drafts of the World Summit Outcome acknowledging that the deliberate targeting and killing of civilians cannot be justified under any circumstances did not survive into the final document. The Summit stressed the need ‘to make every effort to reach an agreement on and conclude a comprehensive convention on international terrorism during the sixtieth session of the General Assembly.’^[93] An International Convention for the Suppression of Acts of Nuclear Terrorism had recently been concluded, and the Summit expressed support for this convention’s early entry into force.^[94]

The issue of terrorism had, clearly, been a key priority for both the US and Australia, among others. Prime Minister Howard declared that ‘[w]e support the counter terrorism outcomes of this Summit, including the momentum to conclude the Comprehensive Terrorism Convention’, but ‘[m]ore could have been achieved.’^[95] For his part, Ambassador Bolton felt that ‘the language in the Outcome Document on terrorism was positive.’^[96] However:

it was unfortunate that we had an extended debate as we went over the terrorism section in the Outcome Document about the role of national liberation movements and whether there are two kinds of terrorism, sort of good terrorism in one capacity and bad terrorism in another. There isn't any distinction here; all terrorism is bad no matter whom it’s directed against or for whatever purported justification. And we thought we arrived at a satisfactory resolution of that issue in the Outcome Document, and I hope that we can carry that through into the Comprehensive Convention on International Terrorism as well.^[97]

However, consensus on a clear definition of terrorism remained elusive. The fungible nature of this term and the propensity of some governments to apply it to a wide range of conduct protected under international law continue therefore to be matters of considerable concern.

E. Peacebuilding Commission, Fund and Office

A relatively specific agreement was reached in relation to a new Peacebuilding Commission, as recommended both in the High-Level Panel report and in the Secretary-General’s report. Australia had declared already in April that the ‘establishment of a practical and effective Commission, able greatly to enhance our responsiveness to post-conflict situations, should be a key summit outcome.’^[98] The Summit agreed to establish such a Commission as an intergovernmental advisory body. The main purpose of this new body, as described in the Summit Outcome, is ‘to bring together all relevant actors to marshal resources and to advise on and propose integrated strategies for post-conflict peacebuilding and recovery.’^[99]

The responsibility for organizational matters and developing the procedures of the Peacebuilding Commission will rest with a standing Organizational Committee consisting of members of the Security Council, and members of the Economic and Social Council elected from regional groups (and giving due consideration to countries that have gone through post-conflict recovery), as well as ‘[t]op providers’ of both assessed and voluntary contributions to the UN, and of military personnel and civilian police to UN missions.^[100]

When meeting in a country-specific context, representatives of, inter alia, the country under consideration, other countries involved in the post-conflict process, relief efforts and/or political dialogue, and relevant regional or sub-regional organizations should also be invited to participate as members.^[101] In addition, representatives of the World Bank, the International Monetary Fund and other institutional donors will be invited to participate in all meetings of the Commission.^[102]

31 December 2005 is specified as the date by which the Peacebuilding Commission should have commenced its work.^[103] However, in the analysis of the General Assembly President Ambassador Jan Eliasson, a number of very fundamental issues remain to be resolved before this can happen, including:

1. Establishment—How should the Peacebuilding Commission be established?

2. Involvement of the host country—How should the importance of national ownership be reflected?

3. Reporting lines—How should the Peacebuilding Commission relate to other UN bodies, in particular the Security Council, ECOSOC and the General Assembly?

4. Agenda Setting—What matters should be discussed by the Peacebuilding Commission and who should refer them to the Commission?

5. Membership of the Organizational Committee—What should be the number and size of the categories from which members to the Organizational Committee are drawn?^[104]

After the first round of post-Summit informal consultations on the Peacebuilding Commission (which took place on 7 October 2005), the co-Chairs of those consultations (Ambassador Loj of Denmark and Ambassador Mahiga of Tanzania) proposed a series of further questions as a framework for the next round on 12 October 2005:

• When does peacebuilding come about and how does peacebuilding evolve, e.g. what are the approximate stages of peacebuilding activities and what actors and elements/instruments are most relevant at the various stages;

• How is peacebuilding operationalized, e.g. what local and international structures are best suited to ensure effective, coordinated action, and how do we ensure national ownership and sustainable results;

• What would [be] the best way for the Peacebuilding Commission to insert itself into the process, so as to add value by providing greater direction and coherence; how will various local and international actors benefit from its advice, including the institutional actors in New York.^[105]

Despite the relatively specific content of the Summit decision on the Peacebuilding Commission, after reading these lists of issues and questions one is left with the uncomfortable impression that form has preceded function, and that the purpose and practical role of the Peacebuilding Commission was not sufficiently thought out before the decision to establish it.

Nonetheless, almost all Member States concur on the importance of this aspect of the 2005 World Summit Outcome. Ambassador Bolton of the US described the establishment of a Peacebuilding Commission as a ‘key priority’, and declared himself pleased with the progress made at the Summit towards this objective.^[106] The Australian delegation had expressed support for the establishment of a ‘small, practical and effective Peacebuilding Commission to address, in an integrated way, the challenges facing fragile States and to provide sustained assistance in post-conflict situations.’^[107] Prime Minister Howard welcomed the initiative.^[108] And President Susilo Bambang Yudhoyono of Indonesia affirmed that ‘[w]e need a Peace-building Commission that works in coordination with both the Security Council and the ECOSOC—under mandate of the General Assembly.’^[109]

However, at the fourth in the series of informal consultations on the Peacebuilding Commission (which took place on 21 October 2005), there was still disagreement as to whether the Peacebuilding Commission had been sufficiently established by the General Assembly in the Summit Outcome Document (the position of the Non-Aligned Movement), or whether concurrent resolutions in the General Assembly and the Security Council are required (the position taken or accepted by CANZ^[110], the EU, Switzerland, Chile and the Russian Federation). The EU acknowledged that ‘[t]here are complex and detailed issues which remain to be settled, although they are few in number.’^[111] The General Assembly President’s objective of an early conclusion of negotiations on the Peacebuilding Commission in order to ensure that it might start its operations by the envisaged date of 31 December 2005 must now be regarded as very optimistic.

In other related actions, the World Summit also requested the Secretary-General to establish a ‘multi-year standing Peacebuilding Fund’ in order to provide immediately accessible financing for peacebuilding activities and recovery.^[112] It also mandated the establishment of ‘a small peacebuilding support office’ to assist and support the Peacebuilding Commission.^[113]

F. Security Council Reform

Both the High-Level Panel report and the Secretary-General’s report had put forward two concrete alternatives for Security Council reform. Both models envisaged increasing the total membership of the Security Council to 24, from the present 15 (five permanent members with veto power, and ten non-permanent members without veto serving for two-year terms). Under both models each of the four major regional areas (Africa, Asia and Pacific, Europe, and the Americas) would end up with six seats each. One model proposed establishing six new permanent seats (albeit without veto powers) and three new two-year term non-permanent seats, divided among the major regional areas. The other model proposed no new permanent seats but would have created a new category of eight four-year renewable-term seats and one new two-year non-permanent (and non-renewable) seat.^[114]

During the negotiations in the lead-up to the World Summit, three separate draft initiatives on Security Council reform were presented by different groupings of States. The ‘Group of Four’ (India, Germany, Brazil and Japan) and the African Union both presented initiatives envisaging the enlargement of the Security Council by six new permanent seats, including two for Africa. The African Union proposal, however, stipulated that the new permanent seats should also have veto powers, and called for six—as opposed to four—additional non-permanent seats. An initiative by the ‘Uniting for Consensus Group’ (led by Pakistan, Italy and Canada) opposed the creation of new permanent seats, and suggested instead ten new non-permanent seats.

The World Summit, however, after failing to reach a consensus on this issue, blandly declared that ‘[w]e support early reform of the Security Council as an essential element of our overall effort to reform the United Nations in order to make it more broadly representative, efficient and transparent and thus to further enhance its effectiveness and the legitimacy and implementation of its decisions.’^[115] It expressed a commitment to ‘continuing our efforts to achieve a decision to this end’, and requested the General Assembly to review progress in this regard by the end of 2005.^[116] No target date is set for actually concluding this discussion.

General Assembly President Jan Eliasson has declared himself ‘ready to listen to all interested parties regarding the continued efforts to move this important issue forward.’^[117] However, in a statement made on 14 October 2005, John Bolton, the US Ambassador to the United Nations, predicted that the effort to significantly expand the Security Council would fail.^[118] The United States supports increasing the membership of the Council to 19 or 20, but not more—and has expressed explicit support for Japan’s candidacy. The US considers that a larger increase in the membership would risk reducing the Security Council’s effectiveness. (Australia, for its part, had indicated at an early stage in the discussions that it supported the ‘expansion of the permanent membership through the inclusion of Japan, India, Brazil, an African country and possibly Indonesia.’^[119])

At present, it seems that the divisions that precluded consensus on the issue of Security Council reform at the Summit are still very much in place.

G. Reform of the Economic and Social Council

The Summit recognized the need for ‘a more effective Economic and Social Council as a principal body for coordination, policy review, policy dialogue and recommendations on issues of economic and social development, as well as for implementation of the international development goals agreed at the major United Nations summits and conferences, including the Millennium Development Goals.’^[120] More particularly, the Council should:

• serve as a ‘platform for high-level engagement among Member States and with the international financial institutions, the private sector and civil society on emerging global trends, policies and action’;^[121]

hold a biennial ‘high-level Development Cooperation Forum to review trends in international development cooperation ,… promote greater coherence among the development activities of different development partners and strengthen the links between the normative and operational work of the United Nations’;^[122] and

ensure ‘follow-up of the outcomes of the major United Nations conferences and summits, including the internationally agreed development goals, and hold annual ministerial-level substantive reviews to assess progress.’^[123]

It remains to be seen whether these decisions will help to chart a new course for the Economic and Social Council, which—despite its status as a principal organ of the UN—has lost much of its original role and intended purpose to other institutions, and has become little more than a bureaucratic rubber stamp for the work of other UN entities.

H. Human Rights Council

The World Summit followed the Secretary-General’s recommendation so far as the creation of a Human Rights Council is concerned.^[124] It is not clear, at least on the face of the document, that the new Human Rights Council is to replace the old Commission on Human Rights. Indeed, the Summit declared that the decision to establish the new body is based upon ‘our commitment to further strengthen the United Nations human rights machinery’,^[125] from which the implication could be drawn that the new body is intended as an addition to—rather than a replacement of—the existing structures. However, the Secretary-General’s recommendation had been to replace the Commission on Human Rights, and all the previous discussions on this matter had proceeded on that clear understanding.

The Summit said that the Human Rights Council is to be responsible for ‘promoting universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner.’^[126] It should also ‘address situations of violations of human rights … and make recommendations thereon’, and ‘promote effective coordination and the mainstreaming of human rights within the United Nations system.’^[127] Beyond these generalities, the Summit Outcome provides no further details on the mandate, modalities, functions, size, composition, membership, working methods and procedures of the Council. All of these matters are referred to the General Assembly, with a request to the President of the General Assembly to conduct negotiations on them and to complete such negotiations ‘as soon as possible during the sixtieth [i.e. current] session’.^[128]

The Secretary-General had envisaged a standing Human Rights Council, smaller than the 53-member Commission on Human Rights, as either a principal organ of the UN or a subsidiary body of the General Assembly (i.e. a higher status body than the present Commission on Human Rights which is a functional commission of the Economic and Social Council). In the Secretary-General’s proposal, the members of the Human Rights Council would be elected directly by the General Assembly by a two-thirds majority of members present and voting. The Summit was silent on all these elements. The Secretary-General’s proposal was itself silent on matters concerning the re-establishment in the Council of the Commission’s system of ‘special procedures’;^[129] the modalities of civil society interaction with the Council; and the future of the Commission’s Sub-Commission on the Promotion and Protection of Human Rights. All of these matters could well be the subject of concern and controversy in the ensuing negotiations.

So far as the status of the new Human Rights Council is concerned, most non-governmental organizations (‘NGOs’) had strongly promoted its establishment is a principal organ of the UN, rather than as a subsidiary body of the General Assembly. As Amnesty International pointed out, an obvious consequence of the recognition of human rights as one of three pillars of the UN system (alongside development, and peace and security) would be the establishment of the Human Rights Council at the same level as the Economic and Social Council and the Security Council: i.e. as a principal organ.^[130]

However, the Charter amendment entailed in establishing the Human Rights Council as a principal organ is no small hurdle. In the General Assembly’s first informal plenary discussion on the establishment of the Human Rights Council, held on 11 October 2004, many countries expressed interest in creating the Council as a principal organ of the UN. However, they also indicated their willingness to act pragmatically and to create the Human Rights Council as a subsidiary body of the General Assembly for the time being. Some proposed that there should be a review in five years time to consider elevating the Council to the status of a principal organ at that time.^[131]

As to whether the Council should be a ‘standing body’ (i.e. formally in session, and able to meet, throughout the year), divergent views have been expressed. Some delegations point out that smaller and poorer countries might be put at a disadvantage if the Council is created as a standing body in Geneva, since some cannot afford to maintain delegations year-round in Geneva. (This has also been identified as a problem for NGOs without a permanent presence in Geneva.) Other delegations have suggested that the creation of the Council as a standing body may help to reduce problems of ‘politicization’, since it would allow more time for a wider range of issues to be addressed more comprehensively.^[132]

With regard to the size and membership of the Council, despite the exhortation of the Secretary-General towards a smaller body, some countries had indicated a preference for the universal membership proposal made by the High-Level Panel. Australia, for example, indicated in April that ‘we are aware of concerns that a smaller body might only exacerbate existing problems and we are still interested in considering whether CHR [the Commission on Human Rights] could be made more democratic and accountable through universalisation as recommended by the High-Level Panel.’^[133] However, the US position was and continues to be strongly in favour of a smaller body, and the alternative model of universal membership no longer appears to be on the table.

In her remarks to the General Assembly on 17 September 2005, US Secretary of State Condoleezza Rice said that ‘[t]he Human Rights Council must have fewer members, less politics, and more credibility. And it should never—never—empower brutal dictatorships to sit in judgment of responsible democracies.’ However, it seems at the very least uncertain that the establishment of the Human Rights Council as a smaller body, even with a two-thirds majority requirement for election, would achieve the US’s stated aim of keeping countries such as Cuba, Zimbabwe, Iran and Sudan off the Council.

In any event, the trend in the latest discussions appears to be towards a body of very similar size as, or perhaps only slightly smaller than, the Commission on Human Rights.^[134] The question of the majority required in the General Assembly for election to the Council (two-thirds, or a simple majority) remains contentious.^[135]

Concerning the mandate and methods of the Council, many different elements are on the table. The idea of a ‘peer review’ function for the Council had been promoted by the Secretary-General. He suggested that it have ‘an explicitly defined function as a chamber of peer review’, i.e. ‘to evaluate the fulfillment by all states of all their human rights obligations.’^[136] This peer review ‘would be a process whereby states voluntarily enter into discussion regarding human rights issues in their respective countries.’^[137] Moreover, it would entail ‘universal scrutiny, that is that all Member States performance in regard to all human rights commitments should be subject to assessment by other states.’^[138] This idea has received mixed reviews in the ongoing negotiations. An interesting proposal put forward by one delegation is that the Council should follow the framework of the World Trade Organization trade policy review mechanism, with every member receiving reports from both the Council (or more properly the secretariat) and the country concerned, as the basis for the review.^[139]

Other issues under discussion include the future of the ‘special procedures’ established by the exisiting Commission on Human Rights, and the modalities of civil society engagement with the Council. NGOs have made strong calls for the frameworks established in the Commission with regard to both of these elements to be transferred in substantially their current form to the Council.^[140]

The President of the General Assembly has emphasized the need to reach agreement on the many outstanding issues concerning the Human Rights Council before the end of 2005. Likewise, Ambassador Bolton told the US Senate Foreign Relations Committee on 18 October 2005 that ‘our objective is to try to finish work on the human rights council before the end of this year’, but acknowledged that ‘it’s going to be tough-going’.^[141]

Indeed, many delegations have now come to the conclusion that it is unlikely that all of the major outstanding issues will be resolved by the end of the year, and are expecting a further delay until perhaps February before a final decision can be taken on the establishment of the Human Rights Council.

I. Strengthening the Office of the High Commissioner for Human Rights

The Summit made an unambiguous and specific commitment to doubling the regular budget resources of the Office of the High Commissioner for Human Rights over the next five year period, in order ‘to enable it to effectively carry out its mandate to respond to the broad range of human rights challenges facing the international community, particularly in the areas of technical assistance and capacity-building’, and ‘with a view to progressively setting a balance between regular budget and voluntary contributions to its resources’.^[142]

The precision of the commitment to doubling the regular budget resources of the Office of the High Commissioner for Human Rights (as distinct from, say, substantially increasing them) is noteworthy.^[143] What is less clear is where these additional resources will come from. It seems highly unlikely at the present time that Member States will support an increase in assessed contributions overall. In that case an internal UN reallocation of funds would be required, in which vested interests and difficult compromises will undoubtedly have to be faced.

J. Management and Oversight

Especially in the aftermath of the ‘Oil-for-Food’ scandal and the findings of the Volcker Committee report, it was essential that the Summit deliver a sufficiently strong set of management and oversight reforms to restore confidence in the probity and efficiency of the UN organization. As Ambassador Bolton has subsequently stated, ‘[d]uring the past nine months, we have made clear that the number one objective of President Bush and Secretary Rice and our government has been to aggressively promote and push for management reform, budget reform and reform of the function of the UN Secretariat.’^[144]

Certainly, the Summit emphasized the importance of ensuring the operational independence of the Office of Internal Oversight Services (OIOS),^[145] and recognized the urgent need to significantly strengthen the expertise, capacity and resources of the OIOS in relation to audit and investigations.^[146] It also requested the Secretary-General to submit an ‘independent external evaluation of the United Nations, including the specialized agencies’, auditing and oversight system’.^[147] The Secretary-General was further requested to submit detailed proposals to the current session of the General Assembly for the creation of an ‘independent oversight advisory committee’^[148], and to provide details to the General Assembly on ‘an ethics office with independent status, which he intends to create’.^[149]

The Summit also acceded to the Secretary-General’s proposal that the General Assembly and other relevant organs be requested to ‘review all mandates older than five years originating from resolution of the General Assembly and other organs’.^[150] And it agreed to consider ‘a detailed proposal on the framework for a one-time staff buyout to improve personnel structure and quality’.^[151]

However, as noted by the Secretary-General in a subsequent commentary, the Summit ‘held back from a clear commitment to give the Secretary-General the strong executive authority that I and my successors will need to carry out the ever-broadening range of operations that the UN is tasked with.’^[152]

Ambassador Bolton’s assessment of the overall outcome compared to the US objectives on management reform was that ‘we didn't get everything we wanted, but we made progress’, and stressed the need for rapid follow-up action so that at least some of the agreed reforms can be reflected in the budget for the next biennium.^[153] Referring again to the ‘Oil-for-Food’ scandal, he insisted on the need for delegations to continue in their condemnation of these activities, but acknowledged that ‘[t]his is not so much a criticism of the Secretariat, but rather, of ourselves and other member states, for ultimately the UN Secretariat works for member governments, a fact we must leverage in the future as we chart a course for reform.’^[154]

K. UN-Civil Society Relations

One important issue that receives very scant attention in the Summit Outcome document is civil society engagement with the UN system. The Summit limited itself to welcoming ‘the positive contributions of the private sector and civil society, including non-governmental organizations, in the promotion and implementation of development and human rights programmes’, stressing ‘the importance of their continued engagement with Governments, the United Nations and other international organizations in these key areas.’^[155]

It may be significant—although one hopes not—that this thin reference mentions only ‘promotion and implementation’ of development and human rights programmes as the point of engagement between civil society and the UN. It does not give the same unambiguous endorsement to the very important role that NGOs play in UN policy discussions, particularly in relation to human rights. The Summit does ‘welcome the dialogue between those organizations and Member States, as reflected in the first informal interactive hearings of the General Assembly with representatives of non-governmental organizations, civil society and the private sector’.^[156] However, although these interactive hearings were indeed a breakthrough in the context of the General Assembly, they still represented a much more formalized and less creative exchange than takes place between NGOs and States in, for example, the Commission on Human Rights.

It is also striking that in the relatively detailed provisions of the World Summit Outcome dealing with the establishment of the new Peacebuilding Commission, no mention is made of the role of NGOs in this new body, despite their well-acknowledged role in practical peacebuilding work.

Lack of attention to the issue of UN-civil society relations was also a feature of both the High-Level Panel report and the Secretary-General’s report. But this oversight is strange, since another High-Level Panel established by the Secretary-General, and led by former President Fernando Henrique Cardoso of Brazil,^[157] examined and made detailed recommendations on precisely this issue in a report issued on 11 June 2004.^[158] None of those recommendations were incorporated in the Secretary-General’s report, with the exception of a recommendation that the General Assembly should establish mechanisms enabling it to engage fully and systematically with civil society.^[159] They were not reflected at all in the World Summit Outcome; nor is there any other apparent follow-up process in the UN system. The implication is that the role of civil society in the UN system may prove to be one of the more contentious issues in the ongoing reform process.

L. Charter Amendments

In view of the fact that the Trusteeship Council no longer meets and has no remaining functions, the Summit agreed to delete Chapter XIII of the Charter and references to the Trusteeship Council in Chapter XII.^[160] With regard to the Military Staff Committee, however, it requested the Security Council to ‘consider the composition, mandate and working methods’ of this body.^[161] It also resolved to delete the outdated World War II era references to ‘enemy States’ in Articles 53, 77 and 107 of the Charter.^[162]

IV. Conclusion

The Secretary-General has acknowledged that he ‘set the bar high’ in framing his recommendations for reform of the United Nations.^[163] He needed to, in order to restore confidence in the organization and his own leadership. In the final analysis, the United Nations is nothing more and nothing less than an expression of the recognized intersection of interests among the community of states. This intersection, never complete, is a field with shifting borders. In general, there is a growing—and not purely rhetorical—recognition among states of their increasing interdependence. However, in some cases and on some issues, the recognized intersection of interests is less today than it has been in the past.

The World Summit was a litmus test of the current status of international relations, and of the extent of the intersection. It inevitably failed to clear the bar set by the Secretary-General, and hoped for by supporters of the United Nations. It is not yet clear whether the members of the international community achieved enough at the Summit to restore each other’s confidence in their own common instrument. Many processes are still pending, the hard decisions postponed. But perhaps tomorrow, Godot will come.

---

^[∗] BA, LLB (University of Queensland); Assistant to the General Secretary for International Affairs and Human Rights, The Lutheran World Federation (Geneva); President of the Special Committee of NGOs for Human Rights, Geneva.

^[1] Secretary-General Address to the General Assembly, 23 September 2003 <http://www.un.org/webcast/ga/58/statements/sg2eng030923> at 10 October 2005.

^[2] Ibid.

^[3] Ibid.

^[4] Ibid.

^[5] Ibid.

^[6] Ibid.

^[7] High-Level Panel Terms of Reference, UN Press Release SG/A/857, 4 November 2003.

^[8] Secretary-General’s address to the General Assembly, 23 September 2003.

^[9] Ibid.

^[10] High-level Panel Terms of Reference, above n 7.

^[11] Ibid.

^[12] Ibid.

^[13] Letter from UN Secretary-General Kofi Annan to Mr Julian Robert Hunte, President of the General Assembly, 3 November 2003.

^[14] The other members of the High-Level Panel were Mr Robert Badinter (France), former President of the Court of Conciliation and Arbitration in the OSCE, President of the Constitutional Council of the French Republic, and Minister of Justice; Mr João Clemente Baena Soares (Brazil), former Secretary-General of the OAS; Ms Gro Harlem Brundtland (Norway), former Director-General of the WHO, Chair of the World Commission on Environment and Development, and Prime Minister of Norway; Ms Mary Chinery-Hesse (Ghana), Vice-Chairperson of National Development Planning Commission of Ghana, and former Deputy Director-General of the ILO; Mr David Hannay (UK), former UK Ambassador and Permanent Representative to the European Community, and former Permanent Representative of the UK to the United Nations; Mr Enrique Iglesias (Uruguay), President of the Inter-American Development Bank; Mr Amre Moussa (Egypt), Secretary-General of the League of Arab States, and former Minister for Foreign Affairs of Egypt; Mr Satish Nambiar (India), Lieutenant General Indian Army retd., former Head of Mission of the United Nations forces in the former Yugoslavia; Ms Sadako Ogata (Japan), former United Nations High Commissioner for Refugees; Mr Yevgeny Primakov (Russian Federation), former Minister for Foreign Affairs of the Russian Federation; Mr Qian Qichen (China), former Minister of Foreign Affairs, and Vice Premier of State Council of China; Ms Nafis Sadik (Pakistan), former Executive Director of the United Nations Population Fund; and Mr Salim Ahmed Salim (Tanzania), former Secretary-General of the OAU.

^[15] Report of the High-Level Panel on Threats, Challenges and Change, ‘A more secure world: our shared responsibility’, 2 December 2004, A/59/565.

^[16] High-Level Panel report, [177]

^[17] High-Level Panel report, [203]

^[18] High-Level Panel report, [207]

^[19] High-Level Panel report, [223]

^[20] High-Level Panel report, [228]

^[21] High-Level Panel report, [249]-[254]

^[22] High-Level Panel report, [263]-[265]

^[23] High-Level Panel report, [272 (d)]

^[24] High-Level Panel report, [277]-[278]

^[25] High-Level Panel report, [285]-[289]

^[26] High-Level Panel report, [293]

^[27] High-Level Panel report, [298]-[300]

^[28] Report of the Secretary-General to the General Assembly, ‘In larger freedom: towards development, security and human rights for all’, 21 March 2005, A/59/2005 (‘Secretary General’s report’)

^[29] High-Level Panel report, [285]

^[30] Secretary-General’s report, [183]

^[31] Secretary-General’s report, [14], [16] and [17]

^[32] Annex to the Secretary-General’s report, recommendation 6(a).

^[33] Annex to the Secretary-General’s report, recommendation 7(b).

^[34] Ibid.

^[35] Annex to the Secretary-General’s report, recommendation 8(c).

^[36] Annex to the Secretary-General’s report, recommendation 6(h).

^[37] Annex to the Secretary-General’s report, recommendation 6(i).

^[38] Annex to the Secretary-General’s report, recommendations 8(d)(i) and (ii).

^[39] Annex to the Secretary-General’s report, recommendation 8(i).

^[40] Annex to the Secretary-General’s report, recommendation 6(b).

^[41] Annex to the Secretary-General’s report, recommendation 6(c).

^[42] Annex to the Secretary-General’s report, recommendations 6(f)(i) and (ii).

^[43] Annex to the Secretary-General’s report, recommendation 6(j).

^[44] Annex to the Secretary-General’s report, recommendation 7(d).

^[45] Annex to the Secretary-General’s report, recommendation 8(k).

^[46] Statement by Mr John Dauth, Ambassador and Permanent Representative of Australia to the United Nations, General Assembly, 7 April 2005.

^[47] High-Level Plenary Meeting of the 60^th session of the General Assembly, New York, 14-16 September 2005.

^[48] The definitive report of the Independent Inquiry Committee into the United Nations Oil-for-Food Programme (chaired by Paul Volcker) was issued 7 September 2005. Interim reports had been issued on 3 February 2005, 29 March 2005 and 8 August 2005.

^[49] 2005 World Summit Outcome, draft resolution referred to the High-level Plenary Meeting of the General Assembly by the General Assembly at its fifty-ninth session, 15 September 2005, A/60/L.1.

^[50] Emma-Kate Symons, ‘UN reform a disaster: Evans’, The Australian (Sydney) 19 October 2005

^[51] Nader Mousavizadeh, ‘A million little pieces’, New York Times (New York) 25 September 2005

^[52] ‘Although World Summit outcome ‘disappointing’, UN reform efforts must continue, General Assembly told during annual high-level debate’: UN press release GA/10392, 21 September 2005. Some NGO reactions were scathing. See, eg, ‘0 out of 10: World leaders fail their human rights test’, International Service for Human Rights, 15 September 2005 <http://www.ishr.ch/> at 10 October 2005.

^[53] Kofi A. Annan, ‘A glass at least half full’, Wall Street Journal (New York) 19 September 2005

^[54] George J. Mitchell, ‘Don’t write off UN reform just yet: America’s role’, International Herald Tribune (Paris) 11 October 2005

^[55] Secretary-General’s report, [12]

^[56] 2005 World Summit Outcome, [9]

^[57] Article 1, Charter of the United Nations

^[58] Amnesty International Public Statement, ‘ UN Governments must act promptly and effectively on important human rights commitments in 2005 World Summit Document’, AI Index IOR 41/062/2005, 26 September 2005

^[59] UN press release SG/SM/10145 REF/1185, 6 October 2005

^[60] 2005 World Summit Outcome, [139]

^[61] Draft articles on Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No 10 (A/56/10), ch IV E1 (‘Draft Articles’).

^[62] Draft Articles, Art 40(1).

^[63] Commentaries to the draft articles on Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), ch IV E.2 (‘Commentaries’), 283-284 (commentary on article 40, [4]-[5])

^[64] Commentaries, 284 (commentary on article 40, [5])

^[65] Commentaries, 286-287 (commentary on article 41, [2])

^[66] Commentaries, 287 (commentary on article 41, [2])

^[67] Commentaries, 287 (commentary on article 41, [3])

^[68] Ibid.

^[69] Kofi A. Annan, ‘A glass at least half full’, Wall Street Journal (New York) 19 September 2005.

^[70] Amnesty International Public Statement AI Index IOR 41/000/2005, 26 September 2005.

^[71] Ibid.

^[72] Statement of John R. Bolton, US Permanent Representative to the United Nations, ‘Challenges and Opportunities in Moving Ahead on UN Reform’, Hearing before the Senate Foreign Relations Committee, 18 October 2005, Washington DC.

^[73] Ibid.

^[74] Address by the Hon John Howard MP, Prime Minister of Australia, to the United Nations High-Level Plenary Meeting, United Nations, New York, 16 September 2005.

^[75] Statement by the Indonesian Delegation at the Informal Thematic Consultations of the General Assembly on Cluster III of the Secretary-General’s Report (Freedom to live in dignity), New York, 20 April 2005.

^[76] Statement by H.E. Dr Susilo Bambang Yudhoyono, President of the Republic of Indonesia, at the High-Level Plenary meeting of the 60^th session of the United Nations General Assembly, New York, 16 September 2005.

^[77] Concerning action—including the application of force—with respect to threats to the peace, breaches of the peace, and acts of aggression.

^[78] Concerning pacific settlement of disputes.

^[79] Kofi A. Annan, ‘A glass at least half full’, Wall Street Journal (New York) 19 September 2005.

^[80] Ibid.

^[81] Ibid.

^[82] Statement by Mr John Dauth, Ambassador and Permanent Representative of Australia to the United Nations, General Assembly, 7 April 2005.

^[83] Fourth conference on facilitating the entry into force of the Comprehensive Nuclear-Test-Ban Treaty, New York, 21-23 September 2005.

^[84] ‘World community not rising to the challenge of disarmament, nuclear non-proliferation, Secretary-General tells New York conference on test-ban treaty’, UN press release SG/SM/10118 DC/2993, 21 September 2005.

^[85] Ibid.

^[86] Statement of John R. Bolton, US Permanent Representative to the United Nations, ‘Challenges and Opportunities in Moving Ahead on UN Reform’ (Speech delivered at the Hearing before the Senate Foreign Relations Committee, Washington DC, 18 October 2005).

^[87] Statement by Michael Adler, US Advisor, on Freedom From Fear, (delivered in the UNGA Discussion of Cluster II Issues for the High Level Event, 22 April 2005).

^[88] John R Bolton, ‘United Nations Rhetoric or Reform: Outcome of the High-Level Event’ (Testimony to US House International Relations Committee, Federal News Service, 28 September 2005).

^[89] 2005 World Summit Outcome, [81].

^[90] 2005 World Summit Outcome, [85].

^[91] Secretary-General’s report, [94].

^[92] Commission on Human Rights Resolution 2005/80, ‘Protection of human rights and fundamental freedoms while countering terrorism’, E/CN.4/RES/2005/80, [14], 21 April 2005.

^[93] 2005 World Summit Outcome, [83].

^[94] 2005 World Summit Outcome, [91].

^[95] Address by the Hon John Howard MP, Prime Minister of Australia, (Speech delivered at the United Nations High-Level Plenary Meeting, United Nations, New York, 16 September 2005).

^[96] John R Bolton, ‘United Nations Rhetoric or Reform: Outcome of the High-Level Event’ (Testimony to US House International Relations Committee, Federal News Service, 28 September 2005).

^[97] Ibid.

^[98] Statement by Mr John Dauth, Ambassador and Permanent Representative of Australia to the United Nations, General Assembly, 7 April 2005.

^[99] 2005 World Summit Outcome, [98].

^[100] 2005 World Summit Outcome, [101].

^[101] 2005 World Summit Outcome, [100].

^[102] 2005 World Summit Outcome, [102].

^[103] 2005 World Summit Outcome, [105].

^[104] Letter from Jan Eliasson, President of the General Assembly, to all Permanent Representatives and Permanent Observers to the United Nations, New York, 6 October 2005.

^[105] Letter from Ambassador Ellen Margrethe Loj, Permanent Representative of Denmark, and Ambassador Augustine P. Mahiga, Permanent Representative of Tanzania, 11 October 2005.

^[106] Statement of John R. Bolton, US Permanent Representative, ‘Challenges and Opportunities in Moving Ahead on UN Reform’ and associated testimony (delivered to the United Nations, at a Hearing before the Senate Foreign Relations Committee, Washington DC,18 October 2005.)

^[107] Statement by Mr Peter Tesch, Ambassador and Deputy Permanent Representative of Australia (delivered at the United Nations, General Assembly informal consultations, 21 April 2005.)

^[108] Address by the Hon John Howard MP, Prime Minister of Australia, (Speech delivered at the United Nations High-Level Plenary Meeting, United Nations, New York, 16 September 2005.)

^[109] Statement by H E Dr Susilo Bambang Yudhoyono, President of the Republic of Indonesia, (delivered at the High-Level Plenary meeting of the 60^th session of the United Nations General Assembly, New York, 16 September 2005.)

^[110] Canada, Australia and New Zealand.

^[111] EU statement for the informal consultations on the Peacebuilding Commission, 21 October 2005.

^[112] 2005 World Summit Outcome, [103].

^[113] 2005 World Summit Outcome, [104].

^[114] High-Level Panel report, [249]-[253]; Secretary-General’s report, [169]-[170].

^[115] 2005 World Summit Outcome, [153].

^[116] Ibid.

^[117] Letter from Jan Eliasson, President of General Assembly, to all Permanent Representatives to the United Nations, New York, 30 September 2005.

^[118] Beth Gardiner, ‘Bolton: UN Council expansion will fail’, Associated Press, 14 October 2005.

^[119] Statement by Mr John Dauth, Ambassador and Permanent Representative of Australia to the United Nations, General Assembly, 7 April 2005.

^[120] 2005 World Summit Outcome, [155].

^[121] 2005 World Summit Outcome, [155] (a).

^[122] 2005 World Summit Outcome, [155] (b).

^[123] 2005 World Summit Outcome, [155] (c).

^[124] 2005 World Summit Outcome, [157].

^[125] Ibid.

^[126] 2005 World Summit Outcome, [158].

^[127] 2005 World Summit Outcome, [159].

^[128] 2005 World Summit Outcome, [160].

^[129] The network of special rapporteurs, independent experts and working groups established under the authority of the Commission of Human Rights to undertake independent monitoring, reporting, analytical and advisory functions.

^[130] Amnesty International Public Statement, ‘UN: Governments must act promptly and effectively on important human rights commitments in 2005 World Summit Document’, AI Index IOR 41/062/2005, 26 September 2005.

^[131] ‘Overview from first round of Human Rights Council discussions’, 12 October 2005, <http://www.reformtheun.org/index.php/eupdate/1677> at 14 October 2005.

^[132] Ibid.

^[133] Statement by Mr John Dauth, Ambassador and Permanent Representative of Australia to the United Nations, General Assembly, 7 April 2005.

^[134] ‘Overview from first round of Human Rights Council discussions’, 12 October 2005, <http://www.reformtheun.org/index.php/eupdate/1677> at 14 October 2005.

^[135] Ibid.

^[136] UN Secretary-General Kofi Annan, Address to the Commission on Human Rights, Geneva, 7 April 2005.

^[137] UN Secretary-General Kofi Annan, Explanatory Note, April 2005, transmitted to the President of the General Assembly Mr Jean Ping by letter dated 14 April 2005.

^[138] Ibid.

^[139] ‘Overview from first round of Human Rights Council discussions’, 12 October 2005, <http://www.reformtheun.org/index.php/eupdate/1677> , at 14 October 2005.

^[140] For detailed and representative expositions of NGO concerns and priorities regarding the Human Rights Council, see International Commission of Jurists ‘Reforming the Human Rights System: A chance for the United Nations to fulfil its promise’, June 2005, <http://www.icj.org/IMG/pdf/ICJUNreform05.pdf> at 10 October 2005; and Amnesty International ‘Meeting the challenge: Transforming the Commission on Human Rights into a Human Rights Council’, April 2005, AI Index: IOR 40/008/2005.

^[141] Testimony by Ambassador John R Bolton, US Permanent Representative to the United Nations, to the US Senate Foreign Relations Committee, 18 October 2005, Washington DC.

^[142] 2005 World Summit Outcome, [124].

^[143] The regular budget contribution to the Office of the High Commissioner for Human Rights for 2004-2005 is USD 60.6 million, substantially less than 2% of the total regular UN budget. Voluntary contributions to OHCHR for the same period amount to approximately USD 105 million.

^[144] Statement of the Honorable John R. Bolton, US Permanent Representative to the United Nations, ‘Challenges and Opportunities in Moving Ahead on UN Reform’, Hearing before the Senate Foreign Relations Committee, 18 October 2005, Washington DC.

^[145] 2005 World Summit Outcome, [164].

^[146] 2005 World Summit Outcome, [164](a).

^[147] 2005 World Summit Outcome, [164](b).

^[148] 2005 World Summit Outcome, [164](c).

^[149] 2005 World Summit Outcome, [161](d).

^[150] 2005 World Summit Outcome, [163](b).

^[151] 2005 World Summit Outcome, [163](c).

^[152] Kofi A Annan, ‘A glass at least half full’, Wall Street Journal (New York) 19 September 2005

^[153] Testimony to US House International Relations Committee ‘United Nations Rhetoric or Reform: Outcome of the High-Level Event’, 28 September 2005, Federal News Service.

^[154] Statement of John R. Bolton, US Permanent Representative to the United Nations, ‘Challenges and Opportunities in Moving Ahead on UN Reform’, Hearing before the Senate Foreign Relations Committee, 18 October 2005, Washington DC.

^[155] 2005 World Summit Outcome, [172].

^[156] 2005 World Summit Outcome, [175].

^[157] Panel of Eminent Persons on United Nations-Civil Society Relations, which was appointed in February 2003 and commenced its work in June 2003.

^[158] ‘We the peoples: civil society, the United Nations and global governance’, report of the Panel of Eminent Persons on United Nations-Civil Society Relations, A/58/817, 11 June 2004.

^[159] Secretary-General’s report, [162].

^[160] 2005 World Summit Outcome, [176].

^[161] 2005 World Summit Outcome, [178].

^[162] 2005 World Summit Outcome, [177].

^[163] Kofi A Annan, ‘A glass at least half full’, Wall Street Journal (New York) 19 September 2005