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United Nations Security Council: The case for reform

By ‘Femi D. Ojumu
16 November 2022   |   3:58 am
Rational minds can always relate to the statement: ‘if it ain’t broke, don’t fix it’. The converse logically elicits a truism too. That is, ‘if it is broke, fix it’! Many would argue that the UN Security Council (Security Council)...

United nations. Eduardo Munoz-Pool/Getty Images/AFP (Photo by POOL / GETTY IMAGES NORTH AMERICA / Getty Images via AFP)

Rational minds can always relate to the statement: ‘if it ain’t broke, don’t fix it’. The converse logically elicits a truism too. That is, ‘if it is broke, fix it’! Many would argue that the UN Security Council (Security Council), as currently configured, is broken and needs a complete replacement with an entity that is nimble, democratically credible and responsive to the enormous challenges and complexities confronting a dynamic multipolar world order.

Alternative schools of thought posit that the Security Council requires meaningful, purposive and pragmatic reform. The latter hypothesis falls within the province of this article.

An informed discourse of the Security Council is embryonic without a foundational understanding of the United Nations’ raison d’etre. Historically, the world had been (and perversely, continues to be), plagued by perennial conflicts and wars dating back centuries and millennia. Notably, these included the: Arab vs Byzantine Wars (629-1050); Thirty Years’ War (1618-1648); Savoyard-Waldesian Wars (1655-1690); French Revolution (1792-1802); and the Napoleonic Wars (1803-1815). It included the expansionist Anglo-Ashanti Wars (1824-1900) and the British Benin Expedition (1897); the First World War (1914-1918); and the Second World War (1939-1945) to name a few.

Against that backdrop, what claim could humanity enduringly and justifiably level at civilisation, beset by seemingly endless strife and wars? That historical context, juxtaposed with the futility of an endless concourse of warring nations; the failure of the League of Nations (1920-1946); which could neither enforce its own covenants to prevent wars, like the expansionist Italian War of Aggression (1935-1937) against Abyssinia (Ethiopia); nor attract US participation and clout; deliberate intentionality regarding safeguarding global order and peace, was apprehended by sovereign nations. That intentionality was practically manifested in the creation of the United Nations on October 24, 1945, upon the ratification of its Charter by China, France, the Soviet Union, United Kingdom, the United States of America (all veto-wielding, Permanent Member countries of the Security Council) and other signatories.

The overriding aims of the United Nations pursuant to Article 1.1 of its 1945 Charter are; to maintain international peace and security, and to that end: take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace; to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace. Article 1.2 of the Charter aims to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.

Article 1.3 of the Charter seeks to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without discrimination as to race, sex, language, or religion. Article 2.1 of the Charter, affirms that the United Nations and all and its Member States shall act, proactively, based on the philosophy of the sovereign equality of all Members.

Pursuant to Article 7.1 of the UN’s 1945 Charter, its 6 main organs are: the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court of Justice and the UN Secretariat.

Of these, the Security Council is the most powerful for 4 germane reasons. One, it is the only organ of the UN empowered to determine the existence of any threat to peace, breach of the peace or act of aggression by any Member State under Article 39 of the UN Charter. Two, it has the primary obligation under the Charter for upholding international peace and security. Article 42 of the Charter exemplifies the point, in that it empowers the Security Council to take military action by air, land or sea forces of UN Member States, as maybe necessary to restore international peace and security against an aggressor. Three, because each Member State is obliged to comply with Council decisions pursuant to article 40 of the Charter. And four, because Article 27 (3) therein grants the permanent members, a power of veto against any decision or resolution of the Council which contravenes their national, geopolitical interests or those of their allies. It provides inter alia that the decisions of the “Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members…”

The Security Council, by virtue of the UN Charter, is also empowered to, inter alia; apply economic and non-economic sanctions not involving the deployment of force to prevent or halt aggression; investigate disputes which threaten international peace; recommend the admission of new Member States; exercise trusteeship functions of the United Nations in strategic areas; recommend to the General Assembly the appointment of a Secretary-General; and, in concert with the Assembly, to elect Judges of the International Court of Justice.

The configuration of the Security Council is 15 Members of which 5 (China, France, the Soviet Union, United Kingdom, the United States of America) are permanent members. Today, November 16, 2022, the 10 non-permanent members are Albania, Brazil, Gabon, Ghana, India, Ireland, Kenya, Mexico, Norway and the United Arab Emirates. The Security Council has, and exercises, a rotational Presidency which changes monthly and each Member has one vote; although the weighting of each vote is calibrated by Article 27 (3) and the veto power exercisable by the Permanent Members referenced earlier.

Evidently therefore, the Security Council wields enormous powers indeed. And, with power, assuredly comes responsibility. The consistency, equity and objectivity of the Security Council’s decisions however, raises a number of issues of strategic significance. Is adherence to UN Security Resolutions consistently honoured in its observance, or vitiated by its infractions by permanent veto-power wielding members of the Security Council? Theoretically, 193 sovereign nations are UN Member States with equal representation at the General Assembly. However, of what democratic credence and significance is that quantum, when decisions as to war and peace, are taken by the Security Council, where 1 of the 5 permanent members can veto a decision of the majority of Member States? It so happens that the 5 permanent members of the Council are sovereign states possessing nuclear weapons.

Philosophically, if sovereign state A, can possess nuclear weapons as a deterrent against external aggression from, especially, a belligerent nuclear armed sovereign neighbouring country B, why can’t country C possess nuclear weapons as a prudent defensive safeguard against enemy states? Should country C have to wait to be attacked before it exercises a right to self-defence using conventional weapons, but reserving a nuclear defence deterrent capability? Why do the strategic national (and allies’) interests of the permanent members appear to routinely upend competing equitable interests which aren’t tied to the interests of the permanent members?

There are competing arguments and counter arguments to these posers depending on one’s philosophical viewpoints. The contention of those seeking the scrapping of the Security Council is that it is undemocratic, unfit for purpose, and disproportionately biased towards the parochial interests of the permanent members who all possess nuclear weapons.
One key argument supporting this view is Russia’s war of aggression against Ukraine on February 24, 2022. The Security Council was (and remains!) powerless to authorise military action against Russia, itself a military superpower; with a vast nuclear arsenal, and permanent member of the Council, notwithstanding its continuing war of aggression against Ukraine. On September 30, 2022 Russia, unsurprisingly, vetoed a Security Council resolution purporting to describe its annexation of 4 regions of Ukraine as “a threat to international peace and security.”

Conversely, UN Security Council Resolution 1973, on March 17, 2011, formed the legal basis for military intervention in the Libyan Civil War demanding an “immediate ceasefire” and authorizing the international community to establish a no-fly-zone and to use all necessary means short of foreign occupation to protect civilians. By October 20, 2011, following the Battle of Sirte, the deposed Libya leader, Muammar Ghadaffi, had been captured and killed by rebel forces.

Earlier, on November 8, 2002, UN Security Resolution 1441 which offered Saddam Hussein, then Iraqi leader, “a final opportunity to comply with its disarmament obligations”; and UN Security Council resolution 687, of April 3, 1991 (pursuant to Iraq’s 1990 War of Aggression against Kuwait); which provided, inter alia, that the Security Council may decide “…to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area”; was used by the United States as a basis for the 1996 bombing of Iraq; the 1998 bombing of Iraq; and the 2003 US led “coalition of the willing” invasion of Iraq. The US contention was premised on its rationale that Iraq was in persistent breach of materially significant UN Security Council obligations and the necessity to maintain peace and security in the Persian Gulf axis.

The counter-argument, that is, the contention for reforming the UN Security Council, is premised on the fact that imperfect as it may be, thus far, it remains a seminal strategic bulwark and deterrent against aggression by belligerent Member States. The underpinning thesis is summarised beneath.

One, there is a valid case for regulating access to, and the use of, nuclear weapons across the world. Hence, the Nuclear Non-Proliferation Treaty 1968. The Treaty aims to prevent the spread of nuclear weapons and weapons technology, promote cooperation in the peaceful uses of nuclear energy and to advance the goal of nuclear disarmament. Importantly, 190 UN Member States are parties to this pivotal treaty, including all Permanent Members of the Security Council. The ratification of the treaty by this number of Member States is, de facto, an implicit delegation of national sovereignty regarding nuclear deterrence and protection to the Security Council’s permanent 5 members, by the remaining 185 Member States. Ideologically, it represents a moral high ground to the effect that humanity should, rightly, invest in peaceful coexistence, cooperation and trade; as opposed to, investing in weapons of mutually assured destruction.

Two, the subsistence, and invocative capacity of the veto power, within the meaning of Article 27 (3) of the UN Charter by the permanent Security Council Members, represents a prudent check and balance because those countries are on ideologically divergent political spectrums. USA, UK and France are, by and large, free market oriented liberal democracies. China and Russia, are not liberal democracies by any reasonable definition. Nevertheless, irrespective of their political differences, incremental cooperation is being achieved on key fronts appertaining to market access, strategic arms reduction talks, space technology et al.

Three, for practical reasons, resource constraints can limit the ability of the Security Council to deploy forces to every trouble spot or war zone around the world. This is because the financial burdens fall on those with the biggest shoulders by and large. That is, the richest countries are, by far, the largest contributors to UN budget. For instance, the UK paid USD 125.67 million by April 25, 2022; China paid USD438.19 million by September 29, 2022; whilst France paid the sum of USD 124.04 million by February 1, 2022. That notwithstanding, alliances exist between the UN Security Council and organisations like the North Atlantic Treaty Organisation (NATO). For example, Security Council Resolutions provided NATO’s mandate for operations in Afghanistan, Libya and the Western Balkans. NATO also supported UN-sponsored operations, including providing logistical assistance to the African Union’s UN peace-keeping operations in Darfur and Somalia. Four, the Security Council’s antecedents, warts and all, represents a wake-up call to autocratic and despotic regimes everywhere. When it deems it right, the Security Council will not hesitate to act, within its mandate, which may be widely interpreted, to maintain international peace and security.

Finally, it is recommended that urgent consideration be given to the expansion of the permanent membership of the Security Council, adopting the criteria of sustainable democratic credibility; visionary leadership; an enduring commitment to the rule of law; respect for human rights; sustainable development and, evidence of honouring treaty obligations. That would go a long way in practically, and symbolically, upturning the unintended consequence of the Security Council’s permanent members’ perception as an exclusive preserve of super powers, each possessing nuclear weapons, riding roughshod over jus gentium publicam (the legal theory which regulates the intercourse of sovereign states), international law and global security. And this is by no means an insurmountable hurdle in a world of brilliant statesmen and diplomats.

Ojumu is Principal Partner at Balliol Myers LP, a firm of legal practitioners in Lagos, Nigeria.