The contentious issue of a common African position in the United Nations Security Council (UNSC) came up repeatedly last month at the 10th Joint Consultative Meeting between the UNSC and the Peace and Security Council (PSC). Can the three African non-permanent members of the UNSC (the A3) be forced into taking a position dictated from Addis Ababa? While this seems to be what some PSC members want, it is complicated from both a legal and a political perspective.
The debate over coordination between the A3 and the PSC is a longstanding one. In 2011, when African states voted in favour of Resolution 1973 authorising a no-fly zone over Libya, this was in contradiction to the intermediary solution that the PSC had proposed to solve the Libyan crisis. Recently, disagreement among member states about how to handle Western Sahara’s quest for independence also highlighted this problem.
In reaction to this, the PSC adopted a decision on 28 April 2016 on the role of the A3. Clearly, intense negotiations took place behind closed doors to reach this decision, which was only published two weeks after the meeting.
UN Charter vs AU Constitutive Act?
In a nutshell, the PSC decided that from now on, the A3 should report to it directly on how they have worked together to defend PSC decisions and positions, as well as those of the African Union (AU) Assembly. It will also convene regular meetings on the role of the A3 and receive monthly reports from the AU observer mission at the United Nations (UN) about how the A3 is faring in implementing this decision.
The PSC decided that the A3 should report to it directly on how they have worked together to defend PSC decisions Tweet this
To support its decision, the PSC reminded the A3 about a decision that the heads of state had taken at the January summit in Addis Ababa. It reads: ‘[T]he Assembly reiterates that the African Members of the UN Security Council have [a] special responsibility to ensure that the decisions of the PSC are well reflected in the decision making process of the UNSC on peace and security issues of concern to Africa.’
In addition, the PSC also asked the office of the legal counsel to examine ‘the issue of establishing an accountability mechanism for the A3 and the issue of establishing criteria to govern the endorsement process of candidatures of AU Member States to become non-permanent members of the UNSC’.
To assert the legal basis of this decision, PSC member states further evoked the Constitutive Act of the AU, which stipulates that the objectives of the Union will be ‘to promote and defend common positions on the issues of interest to the continent and its policies’. It also states that the functions of the AU Assembly shall be ‘to determine the common policies of the Union’; ‘monitor the implementation of policies and decisions of the Union, and ensure compliance by all Member States, and furthermore, any Member State that fails to comply with the decision of policies of the Union may be subjected to other sanctions’.
While this seems pertinent, it is important to point out that the PSC decision does not include any reference to the UN Charter, which should govern the behaviour of states in the international arena and is quoted in both the AU Constitutive Act and the PSC Protocol. In the hierarchy of norms, obligations to the UN Charter supersede obligations to regional mechanisms. In fact, Article 2 of the UN Charter states that ‘all members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter’.
Since ‘no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council’ it seems evident that no African member states of the UNSC can be constrained by a decision taken by the AU.
Moreover, since sovereignty remains a cornerstone principle internationally, there is no provision in the UN Charter than can constrain a state from adopting a certain position as long as it does not explicitly contradict the goals of the charter or a decision of the UNSC.
Meeting the daily challenges of this membership is a major constraint for African states Tweet this
Regional representation proper to the AU
Clearly, the differences between the ways in which the PSC operates versus the ways in which the UNSC does have to be taken into account. While the PSC members represent regions, the UN is made up of sovereign states, even if the non-permanent members of the UNSC are chosen to achieve a regional balance. The PSC decision of 28 April could be seen as an attempt to instil this regionalism in the UN system despite the fact that many members of the UNSC are opposed to it.
Uneven coordination among the A3
According to various observers, coordination among the A3 is not as smooth as it might seem on the surface. There are several reasons for this. The first relates to capacity. Being a member of the UNSC, especially presiding over the body, requires a huge effort by any non-permanent member that has limited human resources compared to those of permanent members. Meeting the daily challenges of this membership is a major constraint for African states, sometimes leaving little space for coordination efforts.
The other issue relates to the reality of African common positions. According to a member of the African permanent representation to the UN, in most cases African positions are aligned. However, representing Africa at the UNSC should not stop AU members from asserting national positions on certain questions.
Indeed, a strong divide remains on crises related to governance. The different features of the political regimes in the current A3 – Angola, Egypt and Senegal – make the adoption of a common position on crises related to human rights and governance unlikely.
For example, on the issue of the African Prevention and Protection Mission to Burundi (MAPROBU), the African UNSC members were as divided as the other members of the PSC, along the lines of those defending sovereignty versus defenders of the international responsibility to protect.
PSC decisions a compass for the UN
Should the AU in international forums present what some member states think is best for Africa? Tweet this
In the informal meeting between the councils in New York, many non-African members complained about the lack of a common African position on some African crises. AU officials replied that PSC decisions should be a compass for the UN to guide its decisions on African crises. As stated before, this solution has legal and political implications since the UNSC cannot bypass the views of current non-permanent members in favour of those of an organisation (the AU) that is an observer and not a member.
Moreover, since AU decisions are taken by consensus they leave little room for clear opposition. Many PSC members feel constrained by a framework that is clearly dominated by a core group of states.
The European Union as a model
AU member states should find solutions that do not put the political responsibilities of the A3 in promoting the PSC’s decisions at the UNSC at odds with their sovereignty as UN members and the organisational culture of this body.
The European Union’s (EU) enhanced observer status could be a model for the AU in this regard. In 2011, the EU as an observer was given the right to make proposals and submit amendments, the right of reply, the right to raise points of order and the right to circulate documents. The difference between the EU and member states of the UNSC is that it is not allowed to sponsor a resolution, vote or present candidates for positions.
A similar evolution, however, requires a substantial strengthening of AU structures. The PSC’s latest decision calling for the reinforcement of the AU’s permanent representation at the UN is a first step in this direction.
However, achieving such a status also calls for an acknowledgement of the limitations of the AU as a regional organisation. Notably, 54 African states cannot agree on every issue. Therefore, the question can be asked: should the AU in international forums present what some member states think is best for Africa, or should it present the middle ground – a compromise position that reflects more or less the various positions held by its member states? For an organisation that does not often vote, reaching consensus on this should be a priority, to allow Africa’s voice to be heard in the international arena.