The United Nations Security Council and War:The Evolution of Thought and Practice since 1945 (10 page)

Reform of the composition and procedures of the Security Council has long been seen as one possible route to enhancing its role and legitimacy. This recurring topic involves three core issues: the appropriate number of Permanent and Nonpermanent Members; the existence and scope of the veto power; and the number of votes required to pass resolutions. The main attempt at reform was in 2005. Before that there were two other major attempts at change: the negotiations in 1963–5 which led to changes in the number of Non-permanent Members; and the negotiations in 1993–7 which, while failing to achieve any substantial amendments to the composition of the Council to address the under-representation of the developing world,
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did bring about important changes in Council procedures.
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In March 2005, these debates culminated in the recommendations of Secretary-General Kofi Annan to the member states in advance of the 60th anniversary meeting of the UN General Assembly in September.
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Following the lines of the High-level Panel Report of December 2004, Annan presented member states with two reform options, under both of which the Security Council would increase in size from fifteen to twenty-four members. Neither option involved any change in the number of veto-wielding powers.
Model A
envisaged six new Permanent Members: two from Asia (where the leading candidates were India and Japan); two from Africa (where the main contending states were Nigeria, South Africa, and Egypt); one from Europe (Germany); and one from the Americas (where Brazil was considered a prime candidate). In addition there would be three new Non-permanent Members on a non-renewable two-year term.
Model B
envisaged no new Permanent Members, but instead a new category of eight Semi-permanent Members elected on a regional basis for a renewable four-year term; and one new Non-permanent Member on a non-renewable two-year term. Model B was fiercely opposed by those countries that had been lobbying for a number of years for a permanent seat (particularly Japan and Germany). In the end, the negotiations over both models broke down, and the Outcome Document of the 2005 World Summit said little on Council reform.
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No Charter reform, and therefore no change in the Council’s composition, can happen without the consent of each of the P5. As a result, a certain structural immobility is built into the very fabric of the UN, especially the Security Council. Although the failure of reform proposals over the decades has been often blamed on the P5 and their unwillingness to give up or share power, differences among regional groups of states and the broader UN membership have been no less important. This was particularly the case in 2005. However, it is also questionable whether the two proposed solutions were the right ones for the UN in the current context of global politics. Both models took a narrow view in their diagnosis of the problem, and their prescription for addressing it.

First, the reform proposals assumed that the weaknesses of the Council were due to the structure and composition of the Council, rather than to the complexity of the problems faced and inherent limitations of its members in tackling them. The Council’s record over the past three decades, however, does not necessarily support this assumption. As this volume shows, since the end of the Cold War, the Council has been much more active in its management role and the veto has been employed much less frequently. The breakdown of consensus over Iraq in 2002–3 was regrettable, but it is not clear that a larger Council would have been any more likely to agree on a particular course to address the crisis.

Secondly, the reform efforts of 2005 largely made representativeness (in the form of more seats for the developing world) a proxy for legitimacy. But, as many observers have noted, the desire for inclusiveness needs to be balanced against the objective that preoccupied the UN’s founders: to avoid replicating the mistakes of the League of Nations. While the General Assembly was to represent the views of the entire membership of international society, when it came to the design of Security Council (the body primarily responsible for managing threats to peace and security), equal representation and consensus decision-making had to be balanced by the desire for responsiveness and effectiveness.
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Thirdly, the proposed mechanism for enhanced representation – regional groupings – raises a key question: would the new members actually represent their regions (and if so, through what mechanism), or would they simply be from those regions? These are two very different propositions, and divisions within regions remain significant. It is noteworthy that some of the loudest opposition to aspiring candidates in 2005 was voiced by their own regional colleagues (for example, Pakistan in the case of India’s candidacy and China in the case of Japan’s). Moreover, without explicit means for consulting with other member states or non-governmental organizations, the addition of new members will not automatically enhance representativeness. If the broader goal is greater legitimacy, then it could be argued that less attention needs to be paid to questions of size, and more to enhancing the accountability and transparency of the Council (a topic discussed further below).

Finally, the reforms tabled in 2005 claimed that the Council needed better to reflect ‘the realities of power in today’s world’. But it is not clear why these realities would translate into more Permanent Members. While other states are clearly growing in terms of material resources and influence, in one key respect the distribution of power in military terms has become much more uneven than it was twenty years ago – in favour of the US. As Edward Luck has argued, the real issue is not so much the Council’s size, but rather the strained relationship that exists between the UN and the US. Any proposed changes must take this reality into account as well.
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The Security Council is not a court; it is not a legislature; it is neither a police force nor even a police committee. It is a pragmatic forum in which states that are individually powerful or that, though weak, represent the members of the UN, decide how best to address serious threats to international peace and security. In short, it is a unique entity, with its own unique legal character and role.
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Much criticism of the Council arises from a misunderstanding of its role. That role is widely seen as having three different aspects. The Council is perceived as having the primary responsibility under the Charter for the maintenance of international peace and security; as an instrument for upholding international law; and finally as an instrument for upholding the rule of law in international society. In fact, only the first of those functions is explicitly given to the Council, under Article 24(1) of the Charter. The other two have been wished upon it, giving it a role as the main guarantor of legitimacy in situations where some part of the international community wishes to impose its will upon what it considers a recalcitrant state.

The three aspects do not sit comfortably with one another. For example, in certain crises there can be tension between the maintenance of international order on the one hand, and strict adherence to particular rules of international law on the other. Such problems can create what may appear to be a profound ambivalence in the relationship between the Council and international law.

In its role as maintainer of international peace and security, the Council is empowered by Article 39 of the Charter to ‘determine the existence of any threat to the peace, breach of the peace, or act of aggression’ and to ‘make recommendations, or decide what measures shall be taken…, to maintain or restore international peace and security’. The Charter sets no limits on the discretion of the Council to make a determination under Article 39. Proposals during the drafting of the Charter to include detailed definitions of threats to international peace and security, in order to constrain the Council, were defeated. It is not tied to any particular legal notion, such as aggression, in making its determination. Indeed, the Council may determine that even events internal to a single state threaten international peace and security, and it has done so with increased frequency since the end of the Cold War.
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While the Council has until recent years made most of its determinations in relation to international crises in specific places, it can also do so in relation to general threats, as it has since 2001 in resolutions on terrorist acts and on nuclear non-proliferation.
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However, not all general threats are necessarily the preserve of the Council: it has not had a central role in addressing global environmental issues including climate change, but it has addressed certain specific environmental issues such as Iraq’s acts of despoliation in the 1991 Gulf War.

The breadth of the Council’s discretion in making the determination that triggers its powers under
Chapters VI
and
VII
is mirrored by the breadth of those powers themselves. Unlike that of member states, the Council’s right to use force is not limited to situations of self-defence. If it wished to initiate preventive military action in order to avert a threat to international peace and security, it could do so. Article 24(1) of the Charter stipulates that when it carries out its duties regarding the maintenance of international peace and security, the member states agree that the Council ‘acts on their behalf’. Such a relationship with member states might suggest that the Council could have no wider powers than those of the states themselves; but this is not the accepted view. The general view is that the Council is an organ of the UN, whose powers derive from the Charter and not from a delegation by member states: the reference to the Council acting on behalf of member states is not so much a legal as a political statement.

That is not to say that the Security Council is entirely above the law. Its relationship with international law is, however, subtle. Article 24(2) of the Charter
obliges the Council to ‘act in accordance with the Purposes and Principles of the United Nations’: but adherence to international law is not among the Purposes and Principles set out in the Charter. What is stipulated, in Article 1, is the ‘Purpose’ of bringing about the adjustment or settlement of international disputes ‘in conformity with the principles of justice and international law’. That is a looser formulation: a just peace settlement may not uphold all the legal rights and duties of the parties, but it would be consistent with international law if the settlement were accepted voluntarily, no matter how reluctantly.
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In that sense, it is plainly not the Council’s role to uphold the application of international law. There will be many occasions on which ignoring a violation or non-application of the law will be a prudent step towards the maintenance of international peace and security. The Council is by no means indifferent to international law. In a Presidential statement in June 2006 the Council reaffirmed ‘its commitment to the Charter of the United Nations and international law, which are indispensable foundations of a more peaceful, prosperous and just world’.
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But a wise peace-maker is not strapped so tightly to the law that he cannot move except in complete conformity with it.

That raises a further point. It is well understood that no body and no organization can enforce all of the rules all of the time. They should not even try to do so: law enforcement is expensive, and one has only to contemplate the means and effects of enforcing total compliance with speeding laws to realize that in all cases a balance has to be struck between tolerable economic and social costs of law-enforcement on the one hand and a tolerable degree of law-breaking on the other. The Security Council is no exception to this rule, and it is not useful to criticize it because of its inability to intervene in every situation that arises – although one can, of course, reasonably say that the balance between the costs and benefits of law-enforcement has not been struck in the right place. But there is another, related argument that has more force. It is that the Security Council should have a consistent, or at least a rational and defensible, policy on the circumstances in which it will and will not act.

The need for such a policy goes to the question of the Council’s role in the maintenance of the rule of law. The question is asked, why is action taken against one state but not another? Why are Israel and Iran and North Korea treated so differently from each other in the context of nuclear non-proliferation, for instance? On the view of justice as the treating of like cases alike, and of the rule of law as the impartial administration of justice, the selectivity of the Council’s response may seem to deprive it of credibility as the guarantor of the rule of law in international society.

The short answer to this point is that the Council was not intended to maintain the rule of law: it was intended to maintain international peace and security. That is a very different, and more limited, role. The Security Council is not a ‘world
policeman’: it is an institutionalized process for managing international crises. If lawyers were marshalled in great enough numbers in the courts to enforce obligations in statutes, by-laws, contracts and leases to keep drains in good working order, drains might never block up. But we have better things than lawyers on which to spend time and money; and we have emergency drain services to help when things get out of hand. The Security Council is the emergency drain service of the international political stage: it is not its job to keep the entire international system working smoothly and lawfully. Indeed, there is no reason why any given dispute must be approached by the Council in legal terms. There is, for example, a contrast between the Council’s treatment of Iraq’s 1990 invasion of Kuwait as a case of a flagrant violation of international law, and its treatment of the Palestine question not as a legal but as a political matter, demanding a political solution. Some may think that the Council does not always choose wisely between legal and political approaches to crises: but its right to make that choice cannot be doubted.