Reform Ing the U N Security C Ouncll' for Th E C H Allenges a Laead

N am e: Student Num ber:

R eform in g th e U N S ecu rity C ou n cl'l

for

th e C h allenges A laead

Research and W riting W inter Sem ester 2013 Professor W interm uth F I N A L PA P E R I hereby declare and confirm that this paper is entirely the result of my ow n work except where otherwise indicated. This paper has not been used as part of any other work project or class assignm ent.

Date / Signature Introduction

The United Nations (hereinafter ''UN'') Security Council's passive role in resolving the continuing Syria Crisis has been disappointing, w hich ignites the debate again on the Iong-discussed topic of U N Security Council reform . This article, consisting of three parts, tries to argue that the root of UN Security Council's identify crisis is its deficit in representativeness and credibility and the proposals made by different countries are not enough to remove this identity crisis and therefore their focus should be on veto power reform and make the big powers in the world act according to international Iaw. It unfolds as follows: first of all, it exposes and discusses the U N Security Council Identity Crisis w hich is signaled by its deficit in representativeness and credibility; Then it com pares and exam ines som e im portant reform proposals put forward by different countries to show that the proposals are not enough to activate the UN Security Council; In the Iast part, it discussed the crux of the UN Security Council reform namely, the reform of perm anent m embers' veto I3OWOr.

11 UN Security Council's Identity Crisis

As designed by the U N Charter, the U N Security Council, who shoulders the primary responsibility for m aintaining the international peace and security on behalf of aII State Mem bers, consists of five perm anent mem bers holding the decisive veto power and ten elected non-perm anent mem bers ineligible for immediate re-election and without the veto powec' The Security Council is vested the power to ''determ ine the existence of any threat to the peace, breach of the peace, or act of aggression'' and to make recom mendations or take m ilitary or non-m ilitary measures to fulfill its duties.z As to decision-making, nine affirmative votes out of fifteen seats can ensure a decision on procedural m atters while a resolution on non-procedural m atters requires at Ieast nine affirmative votes and no veto of the permanent mem bers.3 Therefore permanent mem bers' veto power4 does m atter and

' U .N. Charter arts. 23, 24, 27. The ten non-permanent seats are distributed as follows: five from Africa and Asia' one from Eastern Europe' two from the Latin America and Caribbean States' and two form W estern Europe and other States and each year the UN General Assem bly elects five non-permanent members to replace the five retiring ones from the UN Security Council. United Nations, Frequently Asked Questions United Nations https://www.un.org/en/sc/about/faq.shtml#nonpermanent (last visited Nov.28 2013). 2 U N charter arts. 39-42.

3 Id art. 27. 4 In fact , the permanent members of the Security Council have double veto, namely, decisions on both preliminary questions and substantive matters cannot be passed if there is any veto from permanent members. If a decision on a preliminary question the question as to whether or not a matter is procedural does not pass this matter is considered as non-procedural m atters or substantive mat-ters. See Statement at San Francisco by the delegations of thefoursponsoring Governments on voting in the Security Council in United Nations Conference on International Organization XI, at 714 (1945), available at http://www.hamamoto.law.kyotou.ac.jp/kogi/zooskiko/statementlzooflzofourlzosponsoring 1 Introduction

11 UN Security Council's Identity Crisis

Indeed the Security Council have done a Iot to safeguard international peace and save Iives around the globe such as global peace-keeping operations especially after the end of the Cold W ars. However, as a collective m echanism which has the authority to make vital decisions to protect international peace and security, Iegally it does not have to answer for its inactions or wrong decisions to the people of the world or the General Assem bly, nor be it subject to effective judicial review of any Ievel6. And in practice, there were cases where actions and involvement were in great need but inaction occurred. Other occasions showed that the Security Council whose will could quite often be im posed upon sm all countries was som etimes defied by big powers. The more it involves itself into international affairs, the m ore evidently it exposes that it is experiencing the identity crisis signaled by its deficit b0th in representativeness and credibility. The representativeness deficit or democracy deficit raises the questions w here it comes from and w hat it should be m ade up of. And its deficit in credibility exposes its Iong-time confusions over w hom it should serve the big greedy powers enjoying exclusive privileges or the world as a whole especially the countries torn apart by wars and people suffering from wars diseases and starvation. W orking together democracy deficit and credibility deficit underm ine the Security Council's Iegitim acy as the m ost im portant platform to maintain and restore international peace and security.

a Democracy Deficit

Ever since its establishment in 1945, the num ber of M em ber States has more than tripled from its original 51 to 193.7 The defeated countries in W orld W ar 11 have already recovered form ruins and are Ieading the development of the world together with other world powers.8 There are m ore Ieading players in the political arena than when U N was founded. In contrast to these drastic changes, the Security Council has only been reformed once, with its non-perm anent mem bers increased from six to teng and its perm anent m embers staying as w hat they were half a century ago.

The changes in the Iandscapes of the world over past five decades pose a great challenge to U N Security Council's composition if it still claims and tries to perform its duties lzostates.pdf. After the matter to be decided is considered as substantive the permanent members can again wield their veto to block its passage. Most of the resolutions are decisions on substantive affairs not on preliminary questions. 5 See SZEW CZYK , Bart M . J., Variable Multi-polarity and U.N. Security Council Reform, 53 Harvard International Law Journal 449, 453 (2012). 6 International Comm ission on Intervention and State Sovereignty , The Responsibility to Protect, para. 6.18 (2001). ? United Nations , United Nations M emberstates, United Nations, http://www.un.org/en/members/growth.shtml (last visited Nov.28, 2013). 8 Germ any , Japan and Italy has been in top 10 in world G DP ranking. See W orld Bank, Gross domestic product, World Bank 2012, http://databank.worldbank.org/data/download/GDp.pdf (last visited Nov.28, 2013). 9 G .A. Res. 1991 (XVIII), U.N. Doc. A/1991 (XVIII) (Dec. 17, 1963). 2 on behalf of aII Mem ber States. To som e extent its structure only reflects what the world was half a century ago, but not the status quo; and it fails to respond to and represent the different voices from different corners of the world.'o Usually this view coincides w ith the developing world.'' Even the world big powers agree with the dem ocracy deficit of UN Security Councilz'z and what they disagree is over how the Security Council fails to democratically represent the structure of the world. The developing countries contend that the Security Council should correspond to the population size, while the developed countries argue that its com position should reflect the geopolitical influence and even the influence on the world.o

b Credibility Deficit Another factor that cripples the U N Security Council's full perform ance of its duties is the defacto double standards applied to similar situations and different countries, which gravely com prom ise its credibility am ong the international com m unity.

Let us first take the Security Council's reactions to Libya crisis and Syria crisis as an exam ple. W hen Libya crisis broke out in the early 2011, the Libyan authorities cracked down protesters with armed forceo and Gaddafi urged people to attack and cleanse protestersCs. The Security Council reacted quickly, passing Resolution 197042011):6 and soon after Resolution 1973 (2011) determining that 'the situation in the Libyan Arab Jamahiriya continues to constitute a threat to international peace and security'' and authorizing ''mem ber States ... to take aII necessary measures ... to protect civilians and civilian populated areas ... while excluding a foreign occupying force of any form on any part of Syrian territory, ...'''? The second resolution directly authorized France and Iater NATO to m ilitarily strike against Libya and finally ended the Libya crisis. But the Security Council have reacted to Syria crisis totally differently. Since its outbreak in March 2011, the civil war has killed more than 100,000 peoplez'8 brought about over 2.2 billion refugeeso and Ieft at z: Ieast 6.5 m illion internally displacedzo And there were gas attacks confirmed by UN report.

:0 VENTER , Albert, Reform of United Security Council: .4 Comment on the South African Position, 20 International Journal on World Peace 29, 37 (2003). :: ld at 38.

:2 see infra. Part 111. 13 VENTER , supra note 10, at 38. . :4 BBc Arab uprising. country by country - Libya, BBc, http://www.bbc.co.uk/news/world-lz48z3ll (last visited Nov.28, 2013). :5 BBc Libya protests. . Defiant Gaddafi refuses to quit, BBc, http://www.bbc.co.uk/news/world-middle-east-lzs446z4 (last visited Nov.28, 2013). :6 s .c. Res. 1970, paras 2-25, U.N. Doc. S/RES/1970 (Feb. 26, 2011) (urging the Libyan authorities to respect human rights and imposing arms embargo and travel ban etc.). :7 S .c. Res. 1973, para 4, U.N. Doc. S/RES/1973 (Mar. 17, 2011). :8 BBc syria death toll now above 100 , 000, says tp/v chiefBan, BBc, http://www.bbc.co.uk/news/world-middle-east-z34ss76o (last visited Nov.28, 2013). :9 United Nations High Comm issioner for Refugees , Syria Regional Refugee Response, United Nations High Commissioner for Refugees, http://data.unhcr.org/syrianrefugees/regional.php (last visited Nov.28, 2013). 20 Internal Displacement M onitoring Center , SYRIA: .4 Full-scale Displacem ent and Hum anitarian Crisis with No Solutions in Sight Internal Displacement M onitoring Center, 3 The situation in Syria has been m uch worse and Iasts till now to now here, but the Security Council has done Iittle because Russia and China vetoed or threatened to veto, blocking resolutions tackling Syria crisiszz. obviously the Security Council's deadlock and inconsistency in fulfilling its duties result from veto power.

Another situation where double standards occur is that countries bound by the Security Council resolutions are forced to com ply with the resolutions while perm anent m em bers som etimes bypassed or even defied UN Security Council if it cannot help to meet their goals. There were many sanctions and even arm ed force cam paigns against Iraq authorized by the Security Council that Iraq had to bear. But the striking comparison is that in 2003 US bypassed the Security Council, defying the U N charter to invade into Iraq. This is a disappointing fact that small countries are Iegally and actually bound by UN Charter, while the U N Charter sometimes do not have de facto binding effect on big powers. Thus the Security Council's credibility is underm ined.

III Proposed Reform s of UN Security Council

Faced w ith the Security Council's Identity crisis, m any countries have put forward proposals for the Security Council reform to promote their own national interests. The U N General Assem bly also m ade a resolution to invite M em ber States' comm ents on possible review of the Security Council mem bership review.23

a Regional Proposals: G4, Uniting for Consensus and African Group

G4 nations namely Germ any, Japan, Brazil and India is a bloc of four econom ically and politically strong countries. They are striving for the expansion of the Security Council. According to their plan, four more non-perm anent seats will be added, which will be equally distributed to these four regions: Africa, Asia, East Europe and the Latin Am erican and

Caribbean Group.24 As to permanent seats, they ask for an expansion by six seats, four for G4 them selves and two for Africa, but aII of these six seats do not have veto power.25

http://www.internal-displacement.org/countries/syria (last visited Nov.28 2013). 2: See U .N. G.A. & S.C. Report of the United Nations M ission to Investigate Allegations of the Use of Chemical W eapons in the Syrian Arab Republic on the alleged use of chemical weapons in the Ghouta area of Damascus on 21 August 2013, paras. 27-28, U.N. Doc. A/67/977-5/2013/553 (Sep. 16, 2013). 22 Until now , there have been three resolutions related to Syria Crisis, Resolution 2042 (2012) (Apr. 14, 2012), Resolution 2043 (2012) (Apr. 21, 2012) and Resolution 2118 (2013) (Sep. 27, 2013). The most punitive and effective one is Resolution 2118 (2013) which aims to get rid of its chemical weapons, S.C. Res. 2118, paras 4-7, U.N. Doc. S/RES/2118 (Sep. 27, 2013). There are two draft resolutions, 5/2012/77 (Feb. 4, 2012) and 5/2012/538 (Jul. 19, 2012), vetoed by Russia and China in order to protect Russia's ally Syria. 23 G .A. Res. 47/62, para. 1, U.N. Doc. A/RES/47/62 (Dec. 11, 1992). 24 platform for Change , The Group of Fouq Platform for Change, http://www.pfcun.org/The Group of Four G4 .html (last visited Nov.28, 2013). 25 /J The group ''Uniting for Consensus'', com prising mainly Argentina, Canada, Colom bia, Mexico, Pakistan Republic of Korea etc. only campaign for the increase of non-perm anent num bers, knowing that they are not strong com petitors with G4 nations for perm anent seats. They aim to enlarge the Security Council to twenty-five mem bers consisting of five perm anent mem bers and twenty non-perm anent seats w ith a term of two years and eligible for im mediate re-election.z6 The twenty non-permanent seats will be allocated as below : six seats for Africa, five for Asia, four for Latin American and Caribbean States and two for East Europe.27

Another striving force is African countries. Based on the belief that Africa is underrepresented their goal is clear: there should be five non-permanent seats and at Ieast tw0 perm anent seats holding the veto power for African countries.z8

These three strong voices representing the big powers' standpoints as to the Security Council reform, do have something in com m on, though advocating different plans. They aII em brace the enlargement of the Security Council by adding m ore non-permanent mem bers. And there are also com mon ground between G4 nations and African Group.

b High-level Panel's Recom mendations

In 2000, United Nations M illennium Declaration aimed to intensify efforts to 'achieve a comprehensive reform of the Security Council in aII its aspectsvzg. And then the High-level Panel on Threats Challenges and Change appointed by Annan subm itted a report drawing 0ut tw0 models of Security Council Reform.3o

Model A plans to create three non-permanent mem bers and six permanent mem bers without veto powec3: And Model B provides eight four-year-term non-permanent seats eligible for imm ediate re-election and one two-year non-renewable seat.32 AII these new seats are divided among major regions.

C The Unaddressed issues

AII the proposals above focus on the enlargement of the Security Council, especially the non-perm anent seats, taking practical and pragmatic approaches to the reform . They

26 see G .A. draft Res. 59/L.68, paras. 1-4, U.N. Doc. A/59/L..68 (Jul. 21, 2005). 27 id 28 common African Position on the Proposed Reform of the United Nations (Ezulwini Consensus), Council on Foreign Relations http://www.cfr.org/world/common-african-position-proposed-reform-united-nations-ezulwini-co nsensu s/p25444 (last visited Nov.28, 2013). 29 G .A. Res. 55/2, para. 30, U.N. Doc. A/RES/55/2 (Sep. 8, 2000). 30 see Report of the High-level Panel on Threats , Challenges and Change, paras. 250-253, U.N. Doc. A/59/565 (Dec.2 2004). 3: Id at para. 252.

32 Id at para. 253. 5 partially answer to the questions about the Security Council dem ocracy deficit but Ieave the questions concerning veto power and how to m ake big powers obey the rules set by the UN Charter unaddressed not even mentioned. These questions unaddressed however are the roots of the Security Council's deficit in credibility, as explained at the beginning. The only explanation for the absence of attentions to credibility deficit (such as veto power reform) is that the reform of veto power seems a m ission im possible.

IV Veto Pow er Reform : The Breakthrough Necessary

It is a great comfort that there is consensus across the globe on the issue of the Security Council's membership reform in order to make it a more dem ocratic and responsive m echanism though concrete details have not been agreed upon globally. But Iet us face up to the frustrating fact that the credibility deficit will always be a haunting issue Iurking som ewhere and appearing now and then if the permanent mem bers' veto power is not reform ed and still gives them so much room that they can Iegally capriciously abuse it and if such big powers as US, Russia and China can still violate the international Iaw w ithout being Iegally held accountable and are only nom inally controlled by rules on book. And a potential warning over the mem bership reform is that the m ore permanent mem bers holding the veto power as a brake, the more probably that the Security Council will be deadlocked when the m atter at issue involves conflicting interests of different permanent mem bers. And usually the eventual victim s of the deadlocks in New York are the people in the villages and cities of Middle East and Africa, suffering from conflicts, wars, persecutions, just as the case of Syria crisis. So the real breakthrough, if possible, would be the reform of perm anent m em bers' veto power.

a The Dilemm a of Veto Power

As a m atter of fact, the veto power which highlights the privileges of the five big powers is a design based on the consideration of power structure in the world instead of the principle of equality among sovereignties. It is created to avoid resolutions conflicting with the interests of the five mem bers so that their interests will be safeguarded, and to avoid conflicts am ong big powers which will bring the whole world into turmoil and chaos.33 Now the veto is not only cast to protect their own interests it is also wielded as diplomatic cover for their aIIies.34

33 szEw czylt Bart M . J., Variable Multi-polarity and U.N. Security Council Reform, 53 Harvard International Law Journal 449 453 (2012). see also BUTLER Richard Bewitched Bothered and Bewildered. Repairing the Security council, 78 Foreign Affairs 9, 10 (1999). 34 see United Nations, Security Council - Veto List, United Nations, http://www.un.org/depts/dhl/resguide/scact veto en.shtml (last visited Nov.28, 2013) (showing that more than ten times US vetoed against resolutions condem ning Israel with regard to set-tlement and Russia vetoed several times for its allies such as Syrial; see also Global Policy Forum, Subjects of UN Security Council Vetoes Global Policy Forum, http://www.globalpolicy.org/component/content/aficle/loz/4oo6g.html (last visited Nov.28, 2013). But the question is that even though the veto power is designed to avoid severe conflicts am ong perm anent mem bers but it also blocks constructive resolutions and polarize the Security Council. And possibly the Security Council could be sidelined by som e perm anent mem bers if other permanent mem bers' veto block their way through the Security Council just as the cases of humanitarian intervention against Kosovo in 1999 and Iraq war in 2003. The veto power brings about more deadlocks and possibly more defiance against the Security Council by permanent membersz3s therefore the veto itself brings m ore people together to protest against it.

b The Possible W ay out: Veto Reform

It is obvious that even though a permanent m em ber can possibly benefit from its vetoes most of the time, but it can also suffer from its counterparts' vetoes. And slight adjustment of veto power does not necessarily threaten permanent mem bers' national interests and they can also benefit from it36 Veto reform is possible, if not easy to achieve.3?

Among many recom mendations on veto reform several are constructive and practical. One recom mendation asks the permanent mem bers to agree on a ''code of conduct' for the use of veto when actions are needed to avoid or stop significant humanitarian crisis.38 Another is that the Security Council should publicly disclose its reasoning for its inaction in particular situations.3g The international com m unity, especially the five perm anent m embers, should try to strike deals on how to avoid deadlocks and defiance against the Security Council.

V Conclusion

As a powerful mechanism taking one of the m ost im portant responsibilities in m aintaining international peace and security, the U N Security Council reform should be focused on im proving its representativeness and credibility to remove its identity crisis. The reform advocates should not only cam paign for enlargement of the UN Security Council as proposed by m any countries, but they should set the veto reform as a Iong term goal to avoid deadlocks and defiance as possibly as it could if it could not be achieved in the near

35 There is an article explaining that US's defiance against the Security Council in 2003 which foiled its resolution not to use force against Iraq is due to US's hegemony as a solo superpower in the world. See GLENNON, M ichael J., Why the Security Council Failed, 82 Foreign Affairs 16 (2003). 36 BUTLER Richard , Bewitched, Bothered, and Bewildered. Repairing the Security Council, 78 Foreign Affairs 9, 11 (1999). 37 According to Article 109 of UN Charteq any reform related to veto power should be adopted and ratified by two thirds of General Assembly, including five permanent mem bers. So the radical view of veto abolition is im practical. 38 International Com mission on Intervention and State Sovereignty , supra note 6, at para. 6.21. 39 SPAIN An na , Fhe U.N. Security Council's Duty to Decide, 4 Harvard National Security Journal 320, 352 (2013). future.

8 References

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