Dr. Dr. h.c. Hans Köchler

Professor of Philosophy, University of Innsbruck, Austria

Life Fellow, International Academy for Philosophy (IAPh)

President of the International Progress Organization (I.P.O.)

Member of the International Co-ordinating Committee, World Public Forum "Dialogue of Civilizations"

The United Nations Organization and International Legitimacy
Reflections on the Role of the Security Council

Statement delivered at the VIIIth Annual Session of the

 Rhodes Forum

 organized by

 World Public Forum "Dialogue of Civilizations"

 Rhodes, Greece, 9 October 2010

I.P.O. Online Publications

International Progress Organization, A-1010 Vienna, Kohlmarkt 4, Austria

 © International Progress Organization, 2011

(I) The legitimacy issue

The process of globalization has effectively ended the insular existence of the traditional nation-state and, implicitly, led to a redefinition of the notion of sovereignty. Instead of aggressive self-assertion, co-operation and dialogue have become indispensable methods for nations who want to defend their interests and preserve their sovereign status in the long term. Accordingly, the co-ordination of policies at the global level should be organized in a democratic way, something that is also required under the UN Charter’s principle of “sovereign equality.” However, the absence of democratic procedures of decision-making appears to be one of the major challenges faced by the world organization under the conditions of our interdependent world.

The United Nations Organization is faced with an increasing lack of legitimacy due to basically three interrelated factors:

1. A virtually non-existent separation of powers, a condition that, in structural terms, resembles the decision-making procedures in an authoritarian system. Especially since the end of the Cold War’s bipolar order, the Security Council has been arrogating more and more competencies, in certain cases even circumventing provisions of the UN Charter.

2. An almost systemic arbitrariness of Security Council action particularly in its resolutions under Chapter VII of the Charter, the adoption of which exclusively depends on the constellation of interests among the five permanent members, not on considerations related to international security (as stipulated by Article 39 of the Charter) or the rule of law – a problem that is further exacerbated in the present unipolar environment.

3. A factual policy of double standards resulting from a lack of checks and balances at the legal as well as the political level.

Almost all problems of United Nations legitimacy revolve around the Security Council. More specifically, the organization’s predicament can be traced back to one basic fact: the Council’s serving as an outdated instrument of great power rule that essentially reflects the power balance of 1945. This predicament becomes even more severe in a situation in which the “old order” provides the framework of (unilateral) action by the only remaining superpower:

1. Under these circumstances, the detrimental impact of the veto privilege on international stability is even more felt – because the hegemonial power needs not fear adverse consequences from that privilege’s invocation while the other four permanent members do have to “think twice” before resorting to it.

2. More easily than during the Cold War era, the Council, due to the lack of a global balance of power, can be induced either (a) to give a carte blanche to its most powerful member – as was the case with the resolutions related to the Gulf war of 1991 (that were, in fact, “war authorization resolutions” and gave the intervening powers full freedom of discretion as to the scope of the military measures applied); or the Council may be induced (b) to legitimize an intrinsically illegal action (carried out in circumvention of the Council) ex post facto. This has occurred in the wake of the invasion and occupation of Iraq in 2003 when the Council recognized the two leading occupying powers in Iraq, the US and the UK, as the “Authority.”[1]

All these factors document the basic structural weakness which is at the roots of the United Nations’ acute legitimation crisis at the beginning of the 21^st century: namely an imbalance of power relations due to the effective invalidation of democratic procedures within the only organ of the UN system that is vested with executive power, the Security Council. The veto rule of Article 27 (3) of the Charter means a de facto and de jure negation of the democratic principle of the equality of votes – and, whatever may be said to the contrary, it also implies an irreconcilable normative contradiction to the principle of sovereign equality enshrined in Article 2 (1) of the Charter. The fact of great power rule cannot be explained away by reference to a supposed “special responsibility” vested in five specifically mentioned countries; their special status, if it ever existed in more than in terms of actual power, has anyway long vanished. The preposterous nature of an insistence on such a status has been aptly exposed in an American commentary on UN reform: “Few things could be more profoundly anachronistic than a body owned and operated by the five victors of a war the ended in the first half of the last century.”[2]

Especially since the fortieth anniversary of the United Nations (1985), experts and diplomats have made repeated calls for reform of the outdated procedures of decision-making in the Security Council.[3] However, all the plans outlined as part of several distinct UN reform proposals – those worked out on behalf of the Security Council Summit of 1992, the President of the General Assembly in 1997 (“Razali Plan”)[4], or the Secretary-General in 2005 (“Report of the High-level Panel on Threats, Challenges and Change”)[5] – carefully avoid the basic issue at stake, namely the veto privilege of the five permanent members. The President of the General Assembly (1996), Diego Freitas do Amaral, brought the dilemma faced by the members to the point, characterizing the subject of UN reform as “[n]ot difficult in theoretical terms, but very difficult in political terms,” whereby he referred to the “very national, tough approaches” of the member states.[6]

By not addressing the core problem, the authors of these proposals, bearing in mind (a) the statutory facts and (b) the imperatives of realpolitik, engaged in an act of collective denial of reality. Thus, it is left to those who are not bound by official constraints to identify the real issues and eventually overcome the predicament of realpolitik. Deliberately overlooking those issues has been one of the main reasons of the collective paralysis that, so far, has made impossible any serious reform effort within the United Nations system.

Indeed, one has to point the finger at the statutory predicament first: The veto privilege in favour of the permanent members is “protected” by means of a kind of self-referential arrangement that defies all rules of democracy and fair play. According to Article 108 of the Charter, any amendment to it, including, of course, the provisions of Article 27 (veto), requires the consent of the permanent members. This is, in essence, what we call the “political circulus vitiosus” that has prevented UN reform from the outset. In the veiled wording of Par. 3 of Article 27, the principle effectively endorses decisions pro domo whenever the interests of a permanent member are at stake (whether in regard to Charter reform or enforcement measures under Chapter VII).[7]

Consequently, all the (often elaborate) reform proposals were essentially satisfied at alleviating the situation, i.e. at curing the symptoms, instead of proposing effective remedies. They did not and, because of institutional constraints, could not address the basic issue of the lack of legitimacy (particularly of Chapter VII decisions) due to the Security Council being an instrument of great power rule. A report issued in 2004, for instance, suggested to add one or the other country as permanent member without veto power, to enlarge the overall membership of the Security Council in both categories, permanent and non-permanent, so as to make it more “balanced” and representative of all regions of the globe, etc.[8]

A measure that was again proposed more recently (2007) is to strengthen the other branch of the United Nations system through the establishment of a “UN Parliamentary Assembly” – so as to put a stronger “democratic” counterweight to the intrinsically undemocratic institution of the Security Council.[9] Much earlier, in 1991, the CAMDUN[10] initiative had already suggested “[i]nstituting a UN Second (peoples’) Assembly as a subsidiary organ of the General Assembly under Article 22, representative of the peoples of the United Nations as global inhabitants,”[11] something that would not require an amendment to the UN Charter. However, this will itself remain an ineffective, if not futile, measure as long as virtually all power is vested in the Security Council and nothing is done about Articles 10-12 of the Charter that actually divest the General Assembly of all legislative authority. An additional organ that, in all matters of decision-making, has to defer to the Security Council would not change the power equation in any way.

All the proposals that, over decades, have been advanced out of frustration over the dominating, and often paralyzing, role of the Security Council have essentially been measures of goodwill. Because they had to give consideration to the statutory realities, they do not and cannot address the real issue. This holds true even for the much praised “Uniting for Peace” resolution of the General Assembly that was adopted in connection with the Korea crisis of 1950 to find a way out of the impasse that resulted from the paralysis of the Security Council at the time and that, since then, has been invoked more than once in connection with the Palestinian issue (regrettably with no consequence except having made a moral statement).

In view of this “statutory predicament” we have to adopt a realistic approach that tries to reconcile the ideal of international democracy with the realities of the state-centered international system as it exists today.

(II) Possible measures of reform

The alternative proposal we have in mind revolves around the notion of permanent membership in the Security Council. We are, however, well aware that the absence of a balance of power in global affairs (including intergovernmental relations at the level of the UN) constitutes an additional, and formidable, obstacle to any serious reform effort.

In essence, we envisage a kind of transformation of the concept of permanent membership that would bring the veto provision closer to the democratically more acceptable obligation of seeking democratic consensus and would eventually, at some future stage, make non-permanent membership obsolete. The main consideration, in that regard, is that the veto should be made less of a “dictatorial” tool and come closer to a kind of requirement (or obligation) to integrate all regions of the globe into the decision-making process in the Security Council. It goes without saying that any such measure would still imply an amendment to the Charter, i.e. would require the consent of the existing permanent members. In one basic sense, however, it might be more realistic than earlier proposals that concentrated on the “game of names and numbers” (of permanent and non-permanent members): the proposal does not provide granting the veto “privilege” to additional nation-states who could be perceived, by the existing permanent members, as competitors in the global game for power and influence over the Council’s decisions.

What does such a paradigm change in terms of permanent membership entail? What specific Charter amendments would be required? The gist of our (admittedly idealistic) proposal can be characterized as follows:

First of all, “permanent membership” will have to be redefined on the basis of regional representation. The concept, thus redefined, would not relate to an individual country (nation-state), but to a region. This new category of permanent membership would imply the representation of a group of countries according to specific procedures to be agreed upon among member states. Membership of regions, not of nation-states, would indeed be a novel feature of the international system; it would give concrete shape to the Charter’s guiding principle of “equitable geographical distribution” that sets out the participation of non-permanent members in the Council (Article 23 [1]), thus making it a universal guideline for participation in the work of the Council.

It is obvious that this kind of realignment (or restructuring respectively) of membership will be easier to realize where homogenous regional organizations already exist as in the case of the European Union (EU), the Association of Southeast Asian Nations (ASEAN), the African Union (AU), the League of Arab States, or the Organization of the Islamic Conference (OIC). Problems that have to be paid attention to will be (a) the overlapping of regions (areas) covered by some of those entities and (b) the different nature of some of those entities’ “mission statements” (as regards their political, ethnic, or religious goals, as expressed in their statutes, or a combination of those). Where such structures do not yet exist, Charter reform, as a basic measure, should include a “definition of regions” for the purpose of representation in the Security Council.

The rationale of introducing this new category of permanent membership may be explained by reference to the following doctrinary stipulations and administrative arrangements:

1. The membership will be collective (whereby this new category will ideally phase out, or make obsolete, the membership of individual states unless otherwise specified);

2. Within each region (grouping of states in whichever constitutional form) the seat would rotate in alphabetical order and within a set time frame (an arrangement that could be worked out similarly to the procedures used for the Security Council presidency or the EU presidency and in conformity with each entity’s specific structure or according to unified procedures to be defined in a reformed UN Charter);

3. Each sitting member would co-ordinate its voting behavior with the members of the group according to the procedures of the respective entity (where such regulations exist) or, alternatively, on the basis of unified rules to be written into the Charter (similar to what is alternatively proposed under [b]);

4. In cases where a country has de facto the “weight” of a region and also geographically could be categorized as one, such a country may have its own permanent seat (which, of course, would require a special Charter provision). As regards the present permanent members, this might, first and foremost, apply to the People’s Republic of China and also to the United States of America, the Russian Federation and the Republic of India (Indian Union). However, such a provision – which may, in doctrinal terms, compromise the key principle of “regionalization” – will have to be carefully considered.

Whatever the technicalities of such a realignment finally may be (should it ever be considered within the fora of the United Nations), the “regionalization” of Security Council membership could eliminate existing imbalances and definitely put an end to the overrepresentation of the Atlantic area (due to the permanent membership of the United States plus the United Kingdom and France both of whom, anyway, are no great powers anymore). A common European seat in the Security Council, which has been contemplated since the 1990s, would fit very well into this more co-operative, less étatistic, scheme.[12]

The devil rests in the detail, however. We must not overlook the enormous challenge posed by the aim of “dividing” the globe according to a balanced regional model. Such a measure will definitely require a kind of new constitutional consensus among the present members of the United Nations – lest such a comprehensive and far-reaching reform initiative may trigger an identity crisis of the organization. Furthermore, such an initiative must not be left to the five permanent members “at whose discretion” and under whose watch virtually all reform efforts have failed so far; it should rather be a joint undertaking of the real “international community,” not merely of the group of traditional “Western allies.”

Historical experience teaches us that constitutional rearrangements of this kind almost never happen in times of peace, but as a consequence of major upheaval (as the emergence of the League of Nations after World War I and of the United Nations Organization after World War II have demonstrated). Notwithstanding mankind’s experience with realpolitik and the imperatives of political realism, we dare to express the idealistic expectation that awareness of the crisis brought about by the now obvious failure of neoliberal globalization and political unilateralism will make the community of states (including the permanent members of the Security Council) amenable to such a restructuring and redistribution of executive power within the United Nations. The crisis triggered by the wars in Afghanistan and Iraq, and the collapse of the project of a “New Middle East” are signs on the wall that are detectible at least to those who are familiar with the history of hegemonial power.

Should the nation-states not be able to seize the moment, responding to the concerns of their peoples – and should the organization’s “reinvention” by means of redefining the concept of permanent membership (as part of a major project of Charter reform) prove impossible, there will simply be no way to avoid the refounding of the United Nations Organization, i.e. of creating an entirely new normative framework of international organization.

A further procedural measure will have to be considered in such a major restructuring effort. Ideally, the veto provision itself, albeit in the form of a unanimity requirement among equal members (as envisaged in the above reform proposal), should also be transformed into the requirement of what in the UN-newspeak is called a “supermajority” (for instance of three quarters of the total votes of the new “regional” – or more precisely: regionally defined – permanent members). This provision will be of crucial importance should certain very large states be considered as “regions” in themselves. The actual replacement of unanimity by supermajority will in itself be a decisive step in the paradigm change from an absolutely posited notion of sovereignty to a less absolutist understanding of the state as subject of international law within a co-operative framework, something which is indispensable should the democratization of international relations ever take hold within the UN system.

 If such a large-scale, admittedly extremely ambitious, reform proposal should ever be undertaken, one will also have to deal with procedural issues within each region: namely, how a cohesive position on the issues that are on the agenda of the Security Council can realistically be achieved. The inability, so far, of the European Union to develop a cohesive foreign policy (demonstrated to the entire world in the course of the Iraq crisis of 2003) has made us more aware of the intricacies of intra-regional co-ordination even where rather advanced mechanisms are in place. Specific and unambiguous procedures will have to be worked out as to how instructions are to be given to the rotating representatives of a regional grouping in the Council, whereby those regulations may be decided either autonomously within each regional grouping or according to unified standards to be provided for in the procedural rules of a reformed Security Council. It is absolutely essential that all these technicalities be tackled in detail, should the great vision of the Security Council as “house of the regions” – where the peoples of the world are represented on an equal basis – ever materialize.

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