The European Community and the United Nations

Peter Brückner ^*1

The United Nations (UN) has developed into one of the most significant forums for European cooperation in the sphere of foreign policy. In particular the UN General Assembly (UNGA) - the pre-eminent multilateral deliberation forum - is often seen as a natural showcase for the European Community (EC) and its Member States.² The regular UNGA agenda addresses all major international issues, such as the Israel-Arab conflict, Afghanistan, apartheid, etc., which are discussed by the Twelve within the framework of European Political Cooperation (EPC). It comes as no surprise that nowhere outside Brussels is the cooperation among the Twelve so active as in New York. More than 200 meetings of the Twelve are held in the second half of the year alone, when the UNGA is in session.

This essay is neither on the EC/EPC nor on the UN, but on the relationship between the two, and on Community performance within the world organization. It focuses on the work of the EC and its Member States at the New York headquarters of the UN,³ in particular how an even closer cooperation is sought through joint statements in the UNGA, via submission of working papers and draft resolutions, and through joint replies to the Secretary General of the UN. Furthermore, it discusses how the Twelve seek to achieve, as far as possible, uniformity in voting on the more than 300 draft resolutions tabled in the General Assembly each year. It is not the main purpose of this essay to explain the development of EC/EPC positions in substance on the various agenda items, but rather to examine the process through which these positions are reached,⁴ and to illustrate the conduct of the Community as an operator within the UN.

I. The Legal Framework

A. European Community Status Within the United Nations

Regarding the development of organizational relations between the Community as such and the UN, a distinction should be made between the right of active legation, in this case the right of the Community to send a diplomatic mission to an international organization such as the UN, and the right to participate in the work of the organization.

In the latter regard one might distinguish between the question of participation in the strict sense of the term, i.e., the status of the Community within the framework of the international organization, and the problem concerning representation or, in other words, the question of which institution or person is entitled to speak for the Community in the UN. In this respect two sets of rules are relevant: on the one hand, the "external" rules, such as the statutes of the international organization, and on the other hand the "internal" rules, in casu the applicable Community rules.⁵

Contacts with various members of the UN family started very early in the history of the European Communities. As early as in 1953 the European Coal and Steel Community concluded a cooperation agreement with the ILO. In July 1958 the EEC obtained the status of observer at the meetings of the UN Economic Commission for Latin America (CEPAL). Since then, ties with an increasing number of UN family members have been made and reinforced.

In a letter of 28 November 1958, the then UN undersecretary-general for economic and social affairs, Mr Philippe de Seynes, replying to a letter of 9 November from Mr Jean Rey, offered the President of the EC Commission a range of practical cooperation measures between the UN Secretariat and the Community, in particular those relating to the regional UN Commissions. Mr de Seynes also referred to the question of Community participation in the meetings of ECOSOC, the UN Trusteeship Council, the UNGA main committees and conferences organized under the UN aegis. He concluded that this difficult problem could not be resolved at the UN Secretariat level, but depended on a decision by the UN organ in question. In his reply of 9 December 1958, Mr Rey agreed that for the time being it was not urgent to establish formal relations between the two organizations.

It was not until 1974 that the European Community secured formal status with the head of the UN family. Indeed, it was only when the Federal Republic of Germany joined the UN on 18 September 1973 - a step which completed full UN membership of the EC States - that it became politically possible to formalize the relations between the Community and the UN. However, according to Article 4 of the UN Charter, full membership of the United Nations is open to states only. In the absence of an amendment to the Charter - which remains very unlikely - the Community has had to settle for a more modest participation in the work of the world organization.

Under General Assembly resolution 3208 (XXIV) of 11 October 1974, the EEC was invited "to participate in the sessions and work of the General Assembly in the capacity of observer." ⁶ At that time, this status was requested only in respect of one of the Communities having some interest in the UNGA work, namely the EEC. The Community`s right of legation vis-à-vis UN headquarters was exercised when the EC Commission established an official UN observer mission in New York. After a period serving as an unofficial mission, the EEC observer mission obtained its official diplomatic status in 1976, confirmed in a letter of 4 August 1977 from Secretary of State Kissinger to Commissioner Soames.

The EEC is described as an observer in the blue UN calendar under chapter IV, after the chapters listing the full members, the specialized agencies together with other UN bodies and states not members of the UN. Chapter IV is labelled: "International organizations having received a standing invitation to participate in the sessions and the work of the General Assembly as Observers and maintaining permanent offices at Headquarters." The other entities listed under chapter IV are COMECON, OAU and the Arab League. From a legal point of view, this categorization does not seem quite appropriate. Compared to its counterparts in this chapter, the EEC is the only "organization" to which its Member States have transferred powers or competences. It is precisely this feature which distinguishes the EEC from the traditional type of international organizations.

The way in which the EEC is listed does, however, illustrate some of the peculiarities relating to the organization of Community foreign relations in practice. The listing contains the names of the diplomatic members of the EC Commission's delegation. However, a footnote mentions that the EEC is represented by the Permanent Representative of the Community Member State exercising the Presidency of the EC Council and by the head of the delegation of the EC Commission.

This two-headed or two-pronged formula for representation is a reflection of the Community`s own arrangements pertaining to the role of spokesman for the EEC in the UN. This role is performed by the representative of the Presidency or the Commission according to circumstances, it being understood that the Commission representative, as a rule, speaks only on matters of Community competence.

This formula for two-headed representation, which is used in several other international organizations, is hardly compatible with the rules as perceived by the founding fathers of the Treaty of Rome. However, it does respond to a certain number of practical and political needs. The UNGA, like many other international organizations and conferences, deals with matters of Community and Member States competence, respectively, in such a mixture that it is impossible to make a clear distinction in every case.⁷ Furthermore, the two-pronged formula gives added freedom of manoeuvre to the Community. The Member State exercising the EC Presidency may use its full membership rights of action - also in the name of the Community - where other observers, who do not enjoy this sophisticated representation formula, may meet difficulties.

B. European Political Cooperation and the United Nations

The Luxembourg Report, adopted on 27 October, 1970 by the Foreign Ministers of the then six Member States of the Community, contained the political foundation for European Political Cooperation. Consultations in New York on political matters on the UNGA agenda started as early as 1971. However, they did not flourish until the Federal Republic of Germany joined the UN as a full member in September 1973. In the document on the European Identity, adopted shortly after on 14 December, 1973, the EC Foreign Ministers emphasized the need to seek common positions wherever possible in international organizations, in particular in the United Nations.

Ever since, the Member States have progressively developed disciplines, in written and unwritten rules and procedures, with a view to improving their cohesion in the UN through the various modes of political expression, in particular joint statements, voting, and common explanations of vote. The EPC at the UN is a function of political cooperation in European capitals. The UN objectives pursued by the Community over the years may be summarized as follows: to reinforce the support of the UN, to further respect for the Charter, to defend the principle of universality of the Organization, to contribute to avoiding confrontation, to develop a constructive dialogue between industrialized countries and developing countries, and to reaffirm the identity of the Community by increasing the harmonization of its positions and actions to the greatest extent possible.

The present - legal - basis for EPC is found in the Single European Act (SEA) of February 1986, which essentially entails the codification of EPC practice plus the creation of an EPC Secretariat in Brussels. The relevant Title III of SEA "Provisions on European cooperation in the sphere of foreign policy" constitutes the up-dated, and now legal framework for EPC. Its general rules apply - mutatis mutandis - to EPC at the UN. Certain rules aim in particular at international organizations such as the United Nations.

Preambular paragraph five of the SEA makes a specific reference to "the undertaking entered into by them (the EC Member States) within the framework of the United Nations Charter." The provisions of Article 30(2) describe ways and means of reaching the objective of Article 30(1). Accordingly, Member States "shall endeavour to formulate and implement a European foreign policy." Article 30(2) points at the well-known means of prior consultations, common positions and joint action. Article 30(2)(d) stipulates that:

The High Contracting Parties shall endeavour to avoid any action or position which impairs their effectiveness as a cohesive force in international relations or within international organizations.⁸

Of direct relevance to the work at the UN are the provisions of Article 30(7):

(a) In international institutions and at international conferences which they attend, the High Contracting Parties shall endeavour to adopt common positions on the subjects covered by this Title.

(b) In international institutions and at international conferences in which not all the High Contracting Parties participate, those who do participate shall take full account of positions agreed in European Political Cooperation.

Both are covered by existing EPC texts. According to Simon Nuttall the final words of paragraph (a) - "on the subjects covered by this Title" - make it plain "that EPC cooperation does not extend for example to international institutions or conferences in the monetary or economic fields."⁹ By implication, such fields ought then to be covered by Community competence or, at least, be of particular interest to the

Community and handled by Community (and not EPC) instances. However, this conclusion does not seem to be drawn by all Member States. The result of such a divergent view would be that the world of monetary and/or economic fields escapes Community as well as EPC cooperation.

The provisions of Article 30(7)(b) aim at the problem of the procedures to be followed in international forums like ECOSOC or the UN Human Rights Commission in Geneva where not all EC states are members. As highlighted by Simon Nuttall, the wording does not clarify whether Member States concerned are called upon to take full account of positions previously agreed within the EPC, or whether coordination among the Twelve is to be organized in specific cases to ensure that an EPC position exists. The ambiguity does reflect variations in practice. During the 1989 session of the UN Human Rights Commission, in which some EC Member States, not being full members, only participated as observers, it was possible to agree for the first time on a joint statement delivered by the Spanish presidency representative.

During the negotiations on the SEA, France and the United Kingdom, two of the five permanent members of the UN Security Council, are said to have stated categorically that Article 30(7)(b) does not apply to the work of the Security Council.¹⁰ It is true that the issues taken up by the Council are rarely discussed in New York, even if they often relate to areas where elaborated EPC positions exist, such as the Middle East, Central America, Southern Africa, etc. Formally, at this stage of EPC evolution, it appears correct not to bind EC States by a rule like Article 30(7)(b).

The Security Council, in principle, is not a debating forum like the General Assembly where general policy guidelines are discussed. The role of the Security Council is to deal with concrete cases concerning potential or actual threats to international peace and security. The members of the Council - and they alone - are individually responsible for the views expressed and votes cast in the Council. In particular, the U.K. and France must be constantly aware of their particular responsibilities as permanent members where votes have a particular weight: a no-vote is a blocking veto.

It is inconceivable, however, that the EC States members of the Security Council would not feel bound by the basic policies adopted within the EPC and hence apply them to individual cases.

There is nothing to prevent EPC developing to a point where individual cases - or rather the main issues which they raise - could be discussed among the Twelve in New York in a more regular fashion. The Non-Aligned Movement has established a special caucus for consultations with NA countries members of the Security Council, for example, on positions to be taken with regard to draft resolutions.

C. EC/EPC Policy Coordination

As a rule, the various items on the UNGA agenda are considered in one of the seven main committees of the General Assembly before they are taken up and brought to a vote in the Plenary. Unfortunately, at least as seen from a point of order, the agenda is not composed with any regard to the division of competences between the Community and its Member States, and rarely can any item be put entirely into one of the three categories in which the EC/EPC system operates:

1) Firstly, an item may involve Community competence. That competence may be exclusive, i.e., Member States no longer have competence in commercial and agricultural policies.¹¹

2) Secondly, an agenda point may be of particular interest to the Community, while not being within EC competence.¹²

3) Thirdly, an item may involve matters exclusively within the competence of Member States.

In practice, many subjects fall entirely under Member States' national competence and hence within the scope of European Political Cooperation (EPC). Some issues are of a "mixed" character and fall partly under national, partly under Community competence. Very few agenda items belong exclusively to the field of Community competence. These are essentially the economic and financial matters dealt with in the Second Committee.

Very often the various items on the agenda of the UNGA are tied together - for the EC and its Member States - in an "untidy bundle;"¹³ many issues are presented in such a way that both the Community and the Member States have competence. A pertinent example of "mixed" competence is development policy. The Community is competent for its development policy (Lomé, aid to other Less-Developed Countries, etc.). Member States are competent for their own. In the Second Committee, issues like trade, debt and monetary problems may traditionally include elements of all three categories, intertwined in a grey area where the basis on which one is working is unclear. Now a similar experience is made in the Third Committee with regard to issues concerning narcotics, refugees, discrimination against women and racism.

Lastly, many joint statements cover a number of issues, in particular the Presidency's statement in the Plenary general debate, and most often more than one of the above-mentioned categories. That is why many joint speeches are prefaced by the words: "On behalf of the European Community and its Member States..."

In any event, these examples illustrate the importance of ensuring coordination between Community and Member States areas. As is known, Article 30(5) of the SEA provides that: "The external policies of the European Community and the policies agreed in European Political Cooperation must be consistent." In this respect, Article 30(9) on local cooperation among the UN missions of EC Member States and of the EC Commission comes into play: "The High Contracting Parties and the Commission through mutual assistance and information, shall intensify co-operation between¹⁴ their representations accredited to third countries and to international organizations." In practice it may sometimes be difficult to discern the EC from EPC in New York. As a matter of legal principle, however, it is important to recall the major differences between the two modes of cooperation.

A first difference between the EC and EPC which is often overlooked "relates to the transparency of objectives and methods."¹⁵ While both processes may work towards the very general aim of achieving "an ever closer union among the peoples of Europe" the similarity ends there. The Treaty of Rome carefully defines the objectives of the parties and lists the instruments by which these goals are to be reached: a customs union and a common market. The Treaty also contains a series of substantive policy commitments in different economic areas. However, the EPC has no such substantive foundation. It remains a mechanism for coordination. The SEA has changed nothing in this respect when it says "to formulate and implement a European foreign policy." There is no mention as to what this policy might be. Additionally, the decision process follows different voting rules depending on the area of activity. Trade issues - in the UN context as well - would in principle be subject to the simple majority rule of Article 113 of the Treaty of Rome. EPC decision-making is based on the consensus rule.¹⁶ Finally, if in an area governed by Community competence it turns out that no Community position can be reached, the result according to Community law is that neither the Community not its Member States can express any position on that matter. Areas remain under Community competence and are not re-delegated to Member States just because no valid decision can be made.

In practice, however, the picture is blurred. In theory, the logical consequence of the lack of a Community position should be a non liquet, i.e., that Member States do not participate in the voting (abstention is not enough). In reality, nearly all draft resolutions containing matters under Community competence belong to the Second Committee which by tradition always tries to obtain consensus, thus avoiding a formal vote.

If no agreement can be obtained on an EPC matter, Member States are free to express their national positions. However, in doing so, account should be taken of the positions and legitimate interest of their EC partners. This principle, which has its counterpart in Article 5 of the Treaty of Rome, is reflected notably in Article 30(2)(c) of the SEA. In practice, this means that a Member State should give advance notice to its EC partners if it plans, for example, to make a national declaration or an explanation of vote when a common declaration is made. Such advance notice should also be given to partners before approaching other countries when a delegation envisages participating in drafting and/or co-sponsoring of resolutions during the UNGA.

In theory, the ball does not stop in New York. If an EC or EPC position cannot be obtained locally, the matter should be referred to Community instances in Brussels (COREPER) or the EPC presidency capital (the Political Committee), respectively, to be decided by the EC Council or a ministerial EPC meeting or ultimately by the European Council (not to be confused with the Council of Europe).

In daily life at the UN Headquarters, it is hard to discern a difference in the EC and EPC decision-making processes and it very rarely happens that UN matters under Community deliberation in New York are referred back to capitals.¹⁷

The major difference is a practical one, i.e., that EC and EPC matters are dealt with in different locations. Meetings of representatives of the Twelve in the Second Committee, which handles the bulk of issues under Community competence, meet at the office of the delegation of the EC Commission where partners are seated in EC Council formation, i.e., the Commission representative opposite the Presidency representative. All other meetings of representatives of the Twelve are held at the premises of the UN mission of the Presidency Member State.

EC/EPC cooperation is now a regular feature with regard to practically all aspects of the work in the UNGA and ECOSOC or in their subsidiary bodies. Major exceptions are election questions. This is due to a number of factors. Two of the EC Member States are permanent members of the Security Council (France and the U.K.). These states have a special standing in many UN elections: they are either born members of an organ, e.g., the General Committee, or cannot assume certain posts, for example, membership on the bureaus of the UNGA main committees. Furthermore, EC Member States belong to different sub-regional groups within WEOG (Western European and Others Group). One Member State (Denmark) participates in the extensive Nordic cooperation in election questions.¹⁸

1 ^* Permanent Mission of Denmark to the United States.
The author alone is responsible for the views expressed in this article.

2 Unless otherwise indicated the expression "Community" or "European Community" (EC) are used in the present study as shorthand for describing the European Economic Community (EEC), the European Political Cooperation (EPC) or both. The expressions Member State(s), the Twelve or EPC refer to the members of the European Communities at any given time when they act individually or collectively outside the legal framework of the Treaties of Rome and Paris.

3 A list of the various members of the vast UN family with which the EC has established formal relations may be found in The European Community, International Organizations and Multilateral Agreements published by the European Commission.

4 An excellent comprehensive essay on this subject is found in K.-D. Stadler, The Co-operation of the EC Member States in the Framework of European Political Co-operation at the UN General Assembly in the 1980s (unpublished); see also, by the same author, Die Europäische Politische Zusammenarbeit in der Generalversammlung der Vereinten Nationen zu Beginn der Achtziger Jahre, EUI Working Paper 89/371 and B. Lindemann, EG-Staaten und Vereinte Nationen (1978). For a general study of the development of the EPC, particularly at the UN, see Regelsberger, `EPC in the 1980s: Reaching another Plateau', in A. Pijpers, E. Regelsberger and W. Wessels (eds.) European Political Cooperation in the 1980's: A Common Foreign Policy for Western Europe? (1988).

5 For a broader survey of the EEC and international organizations see J.V. Louis and P. Brückner, Le droit de la Communauté européenne, Vol. 12: Les relations extérieures, at 130.

6 Simultaneously, and in the same manner, the Council for Mutual Economic Assistance (COMECON) was admitted as an UNGA observer. That same year, the EEC participation arrangement with the ECOSOC was formalized. Telexes of 23 and 24 June 1974 from the UN Secretariat informed the EC Commission of the ECOSOC decision adopted at its 50th session "to extend formal standing invitation to your organization to be represented by an observer at future sessions of the Council..."

7 This appears in many statements made in the Second (Economic and Financial) Committee of the UNGA.

8 Simon Nuttall provides an excellent commentary to Title III of the SEA in `EPC and the Single European Act' 5 Yearbook of European Law (1985) at 203-32. On Article 30(2)(d) he notes that it is "all that remains of Article 5(2) of the British draft, which came to be known, rather unkindly, as the "Falklands Clause." The British draft was, in fact, largely based on existing EPC texts, but took on a different significance out of context." Article 5(2) in the British draft read as follows: "In particular, a Member State shall not support a resolution in such organs or conferences which directly criticizes or might gravely affect the vital interests of another Member State. The Member State shall also work to avoid a situation where one or more of them co-sponsor a resolution which another or others of them vote against."

9 See Nuttall, supra note 7, at 213.

10 See C. Bramsen in `EF-pakken og det udenrigspolitiske Samarbejde (EPS)', Det udenrigspolitiske Selskab (June 1987) at 24-25.

11 To be complete, one could also mention areas where Community competence may be only potential.

12 For example, economic consequences of disarmament, i.e., in the context of "the relationship between disarmament and development."

13 A well chosen expression coined by an earlier head of the Commission's UN delegation, Michael Hardy.

14 As suggested by Nutall, supra note 7 at 213, one should read "cooperation among their representations."

15 See Weiler and Wessels, `EPC and the Challenge of Theory' in European Political Cooperation in the 1980s, supra note 3 at 235.

16 The SEA has not involved any change of this principle but may have softened it somewhat by adding a supplementary rule in Article 30(3)(c) of the SEA stating that the Member States "shall as far as possible refrain from impeding the formation of a consensus and the joint action which this could produce."

17 Nuttall , supra note 7, at 211 makes the following observation: "It is the nature of diplomatic gatherings to negotiate a compromise; the difference between EPC and the Community in this respect is less great than some believe. It is doubtful whether there exists any meaningful stage between the type of consensus formation followed at present and described in Article 30(3)(c) and straightforward decision-making by majority vote."

18 This type of cooperation is covered by the Declaration of Denmark relating to Title III of the SEA; see infra note 26.

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