2013

Alexis Research Methodology Course Medha Gupta CCRM Id: 145

[UNSC: VETOING EQUALITY]

The United Nations Security Council is considered the one organ of the United Nations that has been cloaked with the most power in International Law. It is the privilege of Veto that brings on this perception. It remains to be seen what cost this Veto extracts from the International Community as a whole and what it means for the future of the United Nations and the faith that the member nations place in it.

All animals are equal, but some animals are more equal than others George Orwell, Animal Farm

INTRODUCTION
The United Nations Charter clearly provides for an international forum where all nations come under one roof to unite in their common struggles for development and the betterment of their people. The same Charter also facilitates the establishment of The United Nations Security Council; constituted solely for the purpose of maintaining peace, a step taken after witnessing the spectacular failure that was the League of Nations. The Security Council as a body rose to prominence after the conclusion of the Cold War. There has been a marked increase in peacekeeping missions and the Council has been instrumental in maintaining diplomatic dialogue between those nation-states which have been party to crossborder conflicts such as the Gulf War, the Pakistan-Kashmir issue, the Israel-Palestine issue. However, this same Council has recently been the source of much dissatisfaction and criticism. Although the cause of the Security Council is noble on paper, in actuality it is a never-ending tug-of-war between idealism and realism. The Achilles heel of the international order, that is embodied by the United Nations, is the incongruity of the international principle of sovereign equality of all member nations under the aegis of the United Nations Charter and the privileged position of the five permanent members of the Security Council, expressed in the veto right.1 The P-5 introduced the Veto by citing the need to exorcise the conditions that hastened the downfall of the League of Nations. This individual authority vested in five nations, over the amendment of the United Nations Charter was intended as a counter-check on nullifying amendments to the platform that was founded for serving the international order. Article 108 effectively provides each permanent member with a trump card that can overrule any efforts to

Kchler, Hans. "The United Nations Organization and Global Power Politics: The Antagonism between Power and Law and the Future of World Order.", Chinese Journal of International Law 5.2 (2006): 323-340.

weaken its formal power, although virtually all of the other 186 member states criticize the veto as in-equitable.2 Unfortunately, in successfully amalgamating the precarious power balance existent after the Second World War, the world organization has neglected to ameliorate with the contemporary politico-legal environment, failing to adopt a more democratic organizational structure. Another point to note is that the Covenant of the League did not contain a veto right for great powers a fact which, as Zbigniew Brzezinski drew attention to, prevented the United States from joining the League of Nations.3 Ironically, it was the power-centric, legally incongruous approach that necessitated the establishment of the United Nations by the Allies, after the Second World War. Simultaneously, it has condemned the Security Council to become a tool facilitating power politics. This approach has been summarily described by Peter Gowan as far as the United States is concerned as, the Rooseveltian package simultaneously sought to ensure that the UN could in no way become an obstacle in the pursuit of US global strategy. The cosmopolitan ideal was gutted by giving the General Assembly no significant policy-making power whatsoever. Decision making authority was concentrated in a Security Council without the slightest claim to rest on any representative principle other than brute force.4 The United Nations Charter, in its own right, is predicated on a mercurial accord between power and law. On one hand, the Security Council is considered as the enforcer of the international rule of law through a system of collective security ensured by the Security Councils enforcement powers under Chapter VII; while on the other hand, the guarantee of enforcing the rule of law for which the Council is primarily responsible is inherently inter-related to the veto powers of the permanent members. In theory, such a combination appears prima facie fool-proof.
2

Russell, History of the United Nations Charter, pp. 713719; Bruce Russett, ed., The Once and Future Security Council, St. Martins Press, New York 1997, pp. 25; Townsend Hoopes and Douglas Brinkley, FDR and the Creation of the U.N., Yale University Press, New Haven 1997, pp. 198203. 3 The Choice: Global Domination or Global Leadership (2004), Basic Books, New York 4 US: UN, in: New Left Review 24 (2003), November December, 14.

VETO LAW VERSUS POWER

The problem arises in application because these veto powers are used indiscriminately to serve individual security interests as opposed to the collective security interests. What aggravates this situation is that the nature of veto powers is such that they exempt the permanent members de facto from every rule of law that they are duty-bound to safeguard. The permanent members are graced with a de facto immunity as regards their relations with the remainder of the international community. This coalescence between two inconsistent components reveals the selfcontradictory nature of the Charter. The world order has been dominated by the supremacy of power over law, which has resulted in the erosion of the basic principle of the United Nations sovereign equality among nation states. The arbitrary nature of power politics manifested in the double veto has increased the inequality among the member states and made the discrepancies within the Charter glaringly obvious.5 It begs the question whether the power to veto is de facto in keeping with the letter and spirit of the Charter. The General Assembly reaffirmed its commitment to the principle of equality among nation-states in the Declaration of Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations6 that the purpose of the United Nations can be implemented only if States enjoy sovereign equality and comply fully with the requirements of this principle in their international relations. It was further clarified that the principle of equal rights constituted a significant contribution to contemporary international law.7 The Declaration also defines sovereign equality as juridical equality. It is stated that nothing in this Declaration shall be construed as prejudicing in any manner the provisions of the Charter or the rights and duties of Member States under the Charter. A voting privilege that has been accorded to some member nations cannot be considered in symmetry with the principle of

Hans Kochler, The Voting Procedure in the United Nations Security Council Examining a Normative Contradiction in the UN Charter and its Consequences on International Relations , Studies in International Relations Vol. 17, International Progress Organization, Vienna 1991 6 Resolution 2625 (XXV) of October 24, 1970. 7 (Preamble) Resolution 2625 (XXV) of October 24, 1970.

equality. Neither can the use of ambiguous language such as grave exceptions substantiate the same. The voting privilege stated in Article 27 of the Charter stands in direct conflict with the universal recognition of the United Nations as a transnational authority. Article 2 Para 1 states that, The organization is based on the principle of the sovereign equality of all its members. This pledge, however, is nullified by the provisions of Article 27 without any exculpation.8 Inequality and equality cannot co-exist because one neutralizes the other and the net effect of both is a statusquo that remains unshaken.

THE JUSTIFICATIONS
There have been many attempts by experts in International Law to justify this privilege. The most commonly cited argument is that the functional inequality inherent in the veto privilege is actually a material equality, not a formal equality, which legitimately reflects the existing differences between the member states.9 The repercussions of this argument are a legal sanction to establish and ground the dominants right to rule at the root of the United Nations, and consequently of International Law. Such a passive acceptance of the normative interpretation violates the very spirit of the United Nations Charter. Recognizing that a larger population, superior economy and greater military capabilities entitle a nation state to additional rights and privileges clearly demarcates the submission of International Rule of Law to Power Politics. The Declaration of the General Assembly has to be incorporated in the normative sense instead of a literal interpretation of facts.10 Equality has always been understood as equality before international law and equality in international rights much as it has been applied in domestic law across the globe. At the national level, the granting of political and legal rights to citizens is always done independently of their economic status. If the same principle of equality is adopted at the international level, it is improbable that it can be read in any manner at variation with the
8 9

C. Narasimhan, The United Nations: An Inside View. New Delhi, 1988, p. 29. Ignaz Seidl-Hohenveldern, Das Recht der Internationalen Organisationen einschlielich der Supranationalen Gemeinschaften. Cologne/Berlin/Bonn/Munich, 4th ed. 1984, p.147. 10 D. Nini, The Problem of Sovereignty in the Charter and in the Practice of the United Nations , The Hague, 1970.

accepted norm. There is no scope of discrimination within this principle, no matter which way it may be construed. This theory relates the concept of equality to the individual, eliminating the intermediary role of a collective entity such as the state.11 Boutros-Ghali also speaks euphemistically of the "relative" juridical equality of states and their "functional" inequality which, according to him, results from their "political" inequality.12 However, the fallacy in this argument is that, although it temporarily bridges the gap brought in by opposing principles, it has strong long-term consequences. The most prominent of these is the constantly shifting balance of power, because the term Super-power State cannot be unambiguously defined. Furthermore, this definition would constantly alter the list of states entitled to additional rights and privileges due to the fact that the definition is based on the subjective parameter of which state exercises the most influence in international affairs. If rules and regulations under the aegis of international law are to be of a binding nature, then they must be autonomous from the consideration of power politics. It is the core purpose of international law to establish a framework for power politics within which it should be contained such that its extent is controlled, as opposed to legitimizing those situations that have been created through power politics. Yet another theorist propounds that the veto does not refuse the general validity of the norm, on sovereign equality because an exception from the general rule does not negate the entire framework.13 This argument, prima facie, appears sound until closely scrutinized. Upon inspection, it clearly falls apart because it does not deal with the fact that the pivotal role of the Council is the maintenance of international peace and security which is inclusive of the power to impose sanctions on nation-states as a deterrent. In addition, the Charter itself can only be amended upon receiving the consent of the five permanent members of the Council. It can thus be concluded that the General Assembly as such has no authority over the Charter.

11

Hans Koechler, The Principles of International Law and Human Rights , Vol. 5, Studies in International Relations, International Progress Organization, 1981, p. 18 12 B. Boutros-Ghali, Le principe dgalit des tats et les organisations internationals in [Acadmie de droit international] Recueil des Cours, vol. 100, (1960), II, pp. 30ff. 13 Aleksandar Magarasevi, "The Sovereign Equality of States," in Principles of International Law Concerning Friendly Relations and Cooperation. Ed. Milan Sahovi, Belgrade, 1972, p. 191

Arguing semantics, stating that an exception is acceptable while an abrogation is not cannot be considered a justification. An exception is made to a law or norm which is superseding, and comes into play as a last resort to the particular scenario for which it was instituted. The Veto does not satisfy this condition because there is no other norm to which it is in subordination. While an exception is used as a last resort in order to enforce the spirit and cause of the norm, the Veto de facto contradicts the same. On detailed analysis, it appears that the Veto reinstates the archaic interpretation of law where sovereignty is attributed to the entity which was most powerful, as was the tradition in the days of monarchy. This understanding of sovereignty concurs with the doctrine of primacy of the national legal system14 as opposed to that of the transnational legal order.15 The implication of this is that a single state claiming sovereignty, in the sense of supreme authority, would retain the right to negate any infringement of its rights by the majority. 16 Arguendo this proposition is accepted, it still fails to answer the question as to why only certain chosen states are conferred with the Veto power. The only possible solution is that the non-permanent members of the Council are denied sovereignty, which means that there would only be five sovereign nations in the world (as Security Council non-permanent membership rotates).

CONCLUSION
The cause for alarm originates in the implications of such a scenario. It colors every resolution that the Council passes and the stance that the United Nations takes on any and every issue of international merit in apocryphal undertones. The legitimization of power politics in the United Nations Charter is tantamount to restoring the outdated principle of international law, ex injuria

14

Hans Kelsen, Das Problem der Souvernitt und die Theorie des Vlkerrechts, Tbingen, 2nd ed. 1928, reprint Aalen, 1960. 15 Hans Kchler, The Principles of International Law and Human Rights, Vol. 5, Studies in International Relations, International Progress Organization, 1981 16 Ronnie W. Faulkner, Taking John C. Calhoun to the United Nations, Polity, Vol. 15, no. 4 (Summer 1983), p.475

jus oritur that is, a right may originate in an illegal act; the dogmatic establishment of the positivistic rule of effectiveness.17 Quite aside from undermining the sovereignty of nation-states, the Veto also undermines the democratic process because any decision so reached can easily be negated. It prejudices the interests of the entire international order in favor of any one or five nations at any given point in time. Rather than becoming a partner to help resolve conflicts, the permanent members end up silently dictating the path of negotiations because any resolution which the non-permanent members want to pass, favoring their interests, has to be in keeping with the interests of the Big Five in order to have even a minimal chance of success. Any restructuring of the Council along democratic line will fundamentally clash with this privilege and for this reason reforms to the Council have continuously failed.18 The Veto continues to hinder reform efforts because of the vested interests of the permanent members in preserving their influence as well as the absence of any provision in the Charter that requires them to relinquish the same.19 What it ultimately boils down to is the reality that the fate of the world is subject to the national interests of five nation-states, who are more focused in maintaining their international influence than in resolving the cross-border conflicts that arise. The need now is not to push more ideas of reforms, but to make the international order unite against the Veto so that it may be abolished and a more democratic United Nations goes forth into the latter half of the 21st Century. Equality is a right that every human-being craves irrespective of nationality and its high time that the world realize the same, instead of making grand-standing promises with no intention to deliver. The world is what we make of it.

17

Hans Koechler, The Principles of International Law and Human Rights , Vol. 5, Studies in International Relations, International Progress Organization, 1981 18 Hans Kchler, Foreign Policy and Democracy. Reconsidering the Universality of the Democratic Principles, Studies in International Relations, International Progress Organization, Vienna 1988. 19 Weiss Thomas G., The Illusion of UN Security Council Reform, Washington Quarterly 26:4, Autumn 2003, The Center for Strategic and International Studies, Massachusetts Institute of Technology, pp. 147-161