Security Council Reform: A Debate of Legalities and Political Realities
Author: Anne Dehollain and Hyunmin Kang
Originally Published at Peace and Conflict Monitor on: 03/02/2010
Against Reform: Anne Dehollain
The debate over a reform of the Security Council (SC) is not new. However, with the end of the Cold War and the paralysis of the SC, reforming the SC has become highly contentious. The activism of the SC, the shift in the nature of the Council’s decision increasingly involving internal conflicts and peace enforcement… all are factors that have increased the view according to which the SC is “a proxy for global influence on peace and security issues.” The current division over the reform is ironically a “good sign in disguise” that the SC is operationally efficient.
Why changing an organ that is working? The United Nations (UN) Charter provides that the “Organization is based on the principle of the sovereign equality of all its Members”. On the other hand, article 108 establishes the system of veto power which in practice means that the some states, the Permanent 5, have more weight in deciding whether military action should be done and so regardless of the principle territorial integrity. A literal interpretation of the UN Charter makes it difficult to reconcile state equality with the veto privilege. The UN system is in fact based on the realist proponent that the Law is not what it ought to be but what it is. The Law of the United Nations is not an abstract science based on a literal understanding of the Charter. As legal realist advocates, Law is not defined by its mere formal design, it is rather an instrument, a dynamic usually recognized by the perception that it must be complied with and so often thanks to its adequacy to social realities. Since the very beginning, the Law of the Organization espouses realist theory and therefore was not meant to put emphasis on an ideal structure but rather an effective configuration, which the current SC structure aims at. Under the Law of the UN, nothing seems to favor pro-reforming argument.
Beside the fact that a reform will distort the UN institutional architecture, it also amounts to political non sense. First, one must keep in mind that until today “in practice, substantive and substantial reform has been virtually impossible.” Reforming the SC is a question of endless debates where no consensuses on how, why and who should enjoy access to the SC will ever be reached. Second, it might not even served UN legitimacy. The assumption that representativeness and legitimacy goes together is arguable. Legitimacy may well rest on effectiveness. In addition, confrontations between SC decisions and particular state interests will systematically give rise to discourse challenging the UN legitimacy. A more representative SC will not prevent it. A reform will never be seen as satisfying. Last by not least, if situation as the unilateral invasion of Iraq did question the SC authority; a restructuration will not put an end to the world hegemonic paradigm. As Weiss puts it “jostling the UN Charter is a mere distraction.” The current veto system prevents any change in the distribution of power. And even in the hypothesis where a reform could be achieved, without veto privilege, the P-5 would have no more incentive to participate in the UN system. The organization will not only lose vital support, but it will no longer be able to channel might within a collective and institutionalized decision making process.
Without political will, the Law of the Charter (i.e.: article 2§1) is no more than literature. Even in terms of governance, a more representative SC may only transpose the problem of unilateral hegemony to other forum. Adaptations towards more transparency and accountability remain the best the compromise.
For Reform: Hyunmin Kang
As the question seems to ask for a reason of why (or why not) reform of the United Nations Security Council is needed, I will solely concentrate on the reason itself, not how the reform should be carried out. I will not, therefore, be focusing on the matters of veto power, or the border between permanent and nonpermanent members of the Council, but on why question of reform leads to such.
In my opinion, reforming the United Nations Security Council is necessary. It should be noted, however, that it is extremely difficult in a political perspective, which makes reform from a legal point of departure even less possible.
To explain why, I should first explain why the reform is needed. Mainly, it is needed because of the geopolitical realities of today. This notion has to do with the permanent members of the Security Council, who have taken their roles since the creation of the UN in 1945. These members were chosen from the geopolitical reality of that time, among which was the end of World War II. Back then, the victors of that war were the ones who led the international community–mainly England, Soviet Union, and the United States. This was taken into consideration at the time of the creation of the UN, thereby granting them permanent seats to the Council. However, the tidings of the world have changed overtime, as former European colonies became independent and joined the international community, along with many rapidly growing states in Asia. According to Edward Luck’s book, this reasoning is supported by Kofi Annan, when he sought in 2003 to make the Council ‘more broadly representative of the international community as a whole, as well as the geopolitical realities of today.’ In other words, the current permanent members in the Security Council do not effectively represent the international community as a whole.
Nonetheless of the reason, however, the method in carrying out any kind of reform is closely related to politics among the member states in the Security Council. First, in order to give certain changes to the Security Council, it must be amended into the United Nations Charter. This, as a whole, may be seen as a legal process. However, the process is rather a very political one, as it is clearly seen in the history of the UN reform debate. According to Luck, enlargement of members in the Security Council in 1965 was a result of politics. To explain this, it is necessary to look at the prior history. By 1963, members of the United Nations have risen up to 114 from which was originally 54. This phenomenon gave rise to demands for the Council to be more reflective of the new look of the Assembly. This demand for enlargement of the Council barely had a legal background, as the United Nations Charter did not say on the geographical distribution of the nonpermanent seats. Rather, the newly independent countries of the South, as well as the socialist bloc, sensed that Western Europe and Latin America tended to vote with the United States, getting the impression that they were politically disadvantaged. This sense of political ‘discrimination’ had large impact on the General Assembly, as they easily passed the resolution pushing for expansion of the Council despite none of the permanent members voted for it. Later, permanent members one-by-one gave in to giving affirmative votes to the resolution, with a political reason. Soviet Union, France and England, for example, gave in early, with the idea to let the United States bear the responsibilities for frustrating the attempt by the African and Asian states to join the Council. For France and England, additionally, were under pressure from their former colonies. Therefore, at the end, the last of all permanent members, the United States, gave in to affirm to the resolution, expanding the Council as a result.
So, the linkage between legal and political aspects of the reform is clear. However legal the process may seem, politic is the main factor controlling these legal arguments. And, in the political arena, it is necessary that voices from almost every parts of the international community be heard. That is why global distribution of members of the Council is important. That is why a reform is necessary.
Bio: Anne Dehollain and Hyunmin Kang are Master’s students in the Department of International Law and Human Rights at the University for peace. This article grew out of a class assignment from Professor Christer Persson.