New Zealand Law Society - Making a difference

Making a difference

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Gerard van Bohemen, who holds a New Zealand practising certificate, is New Zealand’s Permanent Representative to the United Nations. Pam Davidson caught up with him in New York and talked to him about our election to the Security Council, what the Council does and what contribution we hope to make in our two-year term on it.

“The UN was not created to take mankind to heaven, but to save humanity from hell”. — Dag Hammarskjold, Secretary-General, United Nations, 1953-1961

These words are inscribed on one of the walls of the United Nations (UN) building in New York. They encapsulate the raison d’etre of the organisation; it was not established as a panacea for all the world’s ills but without it, the descent into inhumanity would be rapid.

New Zealand was elected to the UN Security Council for the fourth time in October 2014, our previous memberships being in 1954-1955, 1966 and 1993-1994.

The Security Council is a 15-member body that deals with threats to international peace and security. It has five Permanent Members (the United States, the United Kingdom, France, Russian Federation and China) and 10 members which are elected for two-year terms.

New Zealand sought membership of the Security Council for a number of reasons, chief of which were:

  • it was healthy for the body to have a rotation of members;
  • it demonstrated our commitment to the principles of the UN; and
  • it was an opportunity for New Zealand to participate in the highest decision-making body of the UN.

Membership of the Security Council involves a significant commitment from each of its member states. Membership, particularly where the member seeks to make a substantial contribution, carries a considerable burden and has its challenges.

Attaining membership

The process of attaining membership is daunting. Countries put themselves forward for the vacancies available and a country must obtain votes from two-thirds of the member states present and voting at the relevant General Assembly session in order to secure a seat.

If no candidate receives the required number of votes in the first round (a minimum of 129, if all 193 members of the General Assembly vote), further rounds of voting are held until a candidate receives the required majority.

In 1992, for instance, New Zealand was successful in receiving the required number of votes only in the third round of voting. In the most recent election, New Zealand succeeded in the first round of voting by receiving 145 votes, comfortably exceeding the minimum of 129. That was an excellent result in a contest against two powerful countries (Spain and Turkey).

Our term began on 1 January 2015 and will end on 31 December 2016.

The Security Council’s mandate is focused on the maintenance of international peace and security.

The Council has a formidable agenda. Currently, the crises that it has been dealing with have arisen from intra-state conflict rather than conflicts between sovereign nations. Examples are the civil wars in Yemen, Libya, South Sudan and, most prominently, Syria.

On 30 September 2015, in a speech to the Security Council that was widely reported in the press, Minister of Foreign Affairs Murray McCully put New Zealand’s position on the Syrian and other Middle East conflicts forcefully and robustly, lamenting the “dysfunction and mistrust that has characterised [the] Council’s performance on Syria and too many of the conflicts that rage in the region”.1

A key part of the problem is that the Council is effective only when the Permanent Members are prepared to work together or at least not to oppose each other. The four vetoes cast on proposed resolutions on Syria exemplify the problem.

The Security Council has not always considered that intra-state conflicts were within its purview. In the past, the thinking was that these were issues for the states themselves to resolve.

International threat

Since the 1990s, however, civil war has been regarded as a threat to international security. New Zealand’s view has also been that the UN has a responsibility to intervene to protect civilians where there is serious concern over how countries treat their own citizens.

The Security Council, unfortunately, has limited powers to act. It can make statements, it can impose sanctions (such as imposing travel bans and freezing assets) and it can authorise peace-keeping operations. The latter can be problematic and expensive.

In most cases, the UN responds to threats to civilians by interposing itself between the aggressor and the innocent parties but as has been seen, for instance, in the massacre of Bosnian Muslims in Srebrenica in July 1995, that has not always been effective to protect innocent civilians.2

It can also authorise member states to take enforcement action – as happened, for example when it authorised the intervention in Afghanistan. But the Council has no troops or resources of its own. It depends on the willingness of member states to make troops available to serve, either under the UN’s Blue Helmets or as “Green Helmets” operating under a Council authorisation.

Substantial expertise

Gerard van Bohemen, our Permanent Representative, assumed his role in early May 2015. A Deputy Secretary of the Ministry of Foreign Affairs and Trade responsible for multilateral and legal affairs, he has substantial experience and expertise in international law.

He joined the Ministry on graduation from Victoria University where he came under the tutelage of two renowned experts in international law. Gerard credits Sir Kenneth Keith and the late Professor Quentin Quentin-Baxter for setting him on his career path.

This is Gerard’s third stint in New York. He served with the New Zealand Mission from 1983 to 1986 and again from 1992-1994 (the last time New Zealand was on the Security Council).

In his varied career, he has also been a Whaling Commissioner (New Zealand’s representative on the International Whaling Commission), New Zealand’s representative at meetings of the Antarctic Treaty system and took a leading role in negotiating the international convention to regulate high seas fishing in the South Pacific Ocean.

He has also spent 13 years in private practice over the course of his career – over two years at Russell McVeagh before coming back to New York as Deputy Permanent Representative for New Zealand’s term on the Council in 1993-94, nine years at Buddle Findlay (eight as a partner) and a year at Chen Palmer, doing a wide variety of work including resource management and commercial litigation and appearing twice at the Privy Council, as well as in the Environment Court, High Court and Court of Appeal. Gerard rejoined the Ministry in 2005 as Director of the Legal Division before becoming Deputy Secretary in 2010

There is a strong tradition of lawyers leading the New Zealand Mission in New York. Previous Permanent Representatives include Colin Keating, Don MacKay and Jim McLay, all New Zealand lawyers.

Positive difference

New Zealand seeks to make a positive difference. In its previous term on the Security Council, New Zealand was noted for calling attention to the killing of civilians in Rwanda in 1994.

This time round, as has been seen, New Zealand has used its membership to provide a strong and principled voice on the Syrian conflict. Also, while New Zealand held the Presidency of the Security Council in July 2015, it made deliberate efforts to change the dynamics of the process of interaction between members and to introduce a more business-like approach to the work of the Council.3

A further innovation introduced by Gerard during New Zealand’s Presidency, and now adopted by other members, is for each new Presidency to begin with a breakfast meeting of all the ambassadors. New Zealand will hold the Presidency again in September 2016.

There is little doubt that the New Zealand team will work hard through its term on the Security Council to ensure that New Zealand makes a real contribution to the body that rose from the ruins of the Second World War and which, 70 years later, continues to be the only body with international backing that can, as Dag Hammarskjold put it, stand between humanity and hell.

Pam Davidson is a barrister specialising in tax matters. She practises at Lambton Chambers in Wellington and is a former President of the Wellington District Law Society.

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