Year XLVII, 2005, Number 2, Page 86



In recent times, we have witnessed the emergence of a truly peculiar paradox. Some states, and some opinion movements, faced with the increasing complexity of the global scenario and the objective difficulty of finding adequate solutions to the various crises that are rocking the world, invoke, with growing insistence, the United Nations. They see this organization as a sort of world government with sole responsibility for making decisions and for acting in response to these crises. In their view, the United Nations is a sort of superstate body endowed with a will of its own and with a capacity to act that, separate from that of the single states, effectively relieves the latter of the burdensome obligation to adopt a stance in relation to these crises (by which I mean any position that does not represent a pure and simple toeing of what should be, according to this view, a line decided at UN level). Contrary to first impressions, this attitude does not always mask neurotic anti-Americanism; sometimes it is born of pure ignorance. After all, never before has the United Nations known a crisis of legitimacy and credibility like the one into which it now seems to be sinking. To anyone examining this organization objectively and without bias, the current crisis clearly reveals the UN’s intrinsic — we might say structural — incapacity to fulfil the role of global government — a role that some states and opinion movements would accord it, and behind which for various reasons — in some cases, unfortunately, to shirk their responsibilities — they take refuge.
The crisis of the United Nations has legal/institutional aspects that are the only ones I feel qualified to discuss. On the other hand, there are other contributory factors that, lacking the necessary knowledge, I cannot comment on with any authority. I will not, therefore, go into the wastefulness and elephantine bureaucracy that some denounce, nor the press scandals regarding the activities of the United Nations and its Secretary General. Nor will I dwell on the bewildering situations in which certain states, despite systematically violating human rights, continue to enjoy leading roles in the very UN organs that are supposed to defend these rights. Neither, finally, do I feel in a position to examine the instances in which, in acute international crisis situations that have clearly jeopardized peace or the safeguarding ofthe fundamental rights of individuals — and here I might cite the case of the Sudan —, UN intervention has been either absent, or unsuccessful. To be fair, appraisals of this kind should also take into account instances in which the United Nations has played a useful role. Most importantly, it must be recalled that the United Nations does not only have a fundamental peacekeeping role — this is governed by what are the most important regulations in the UN Charter, those contained in Chapters VI and VII — but also that it fulfils, directly or through its various specialized agencies (lLO, FAO, WHO, UNESCO, etc.), a whole series of more technical functions, crucial to the coexistence of the various members of the international community. In particular, returning to an area of direct interest to international law scholars, that of the development of international law, there can never be praise enough for the commendable efforts of the UN International Law Commission. What I wish to underline, instead, leaving aside the question of the United Nations’ successes and failures in relation to specific crises, is the fact that this organization has now become structurally incapable of fulfilling the main responsibility assigned it by the writers of its Charter, the maintenance of peace and security internationally. Consequently, those who, in order to conceal their own incapacity or unwillingness to make decisions in the sphere of foreign policy, promote the United Nations’ “role” as a global government are operating under a dangerous illusion. At this point, it must also be added that none of the current proposals for modification of the UN Charter are capable of resolving the crisis gripping the organization.
This is because none of these proposals, in fact, touches the real issue at the root of the United Nations’ problems, i.e., the power of veto exercised by the five permanent members of the United Nations Security Council (the five nations that emerged victorious from the Second World War). To underline the true nature of this power, I would point out that it places the countries that wield it “above the law”, that is, it exempts them from the obligation to respect the most important provisions of the UN Charter, such as the prohibition of the use of force and the obligation to cooperate in the maintenance of peace and security internationally. Indeed, should the Security Council, in a situation in which peace is violated or threatened by the behaviour of a state that holds the power of veto, be called upon to debate the adoption of a measure contemplated by Chapter VII of the Charter, the said state — in contempt of the basic legal principle “no man is a judge in his own cause” — is not required to abstain; on the contrary, it can use its veto to block the action of the Security Council. Naturally, this power of veto can be used by these five states not only to block UN actions against themselves, but also to block such actions against other states that fall within their sphere of influence. This happened regularly in the bipolar era, prior to the fall of the Berlin Wall, and it continues to happen today, even though the differences between the states that exercise the power of veto are now no longer based on the East-West divide.
To affirm that some UN member states are above the regulations established by the Charter is also to affirm that the structure of the United Nations does not conform with the principles of the rule of law, which, requiring that all the institutions of a given community be the first ones to be subject to it, may be considered one of the Western world’s most important conquests since the French Revolution. In practical terms, the result of this situation is that each time the Security Council examines the adoption of a measure (which may or may not involve the use of armed force) contemplated by Chapter VII, and this measure is directed at one or more of the countries holding the power of veto (or at a state that is supposed to be its friend or ally), then the “taking of UN action” becomes nothing more than the conducting of a round of negotiations among the five permanent members of the Security Council, in an effort to reach an agreement through the mechanisms of intergovernmental diplomacy. In this setting, for example and in reference to the crisis in Iraq, it is difficult to understand why the action of a state, deemed legitimate by general international law, should become illegitimate if just one of the members with the power of veto instead considers it an act of aggression and refuses to approve it, and equally why the action of a state, deemed illegitimate by general international law, should be classed as an act of legitimate defence simply because the five members holding the power of veto determine that that is what it is.
The truth is that if one thinks of the United Nations as an organization that should be managing the most important international crises, one should be aware that “managing”, in fact, means looking for compromises (always a difficult and sometimes an impossible undertaking) between five states — the ones, that is, that hold the power of veto.
The fact that five UN members can place themselves above the most important rules established by the UN Charter and — even when they create situations that threaten or that violate peace — remain immune to the action of the organs of the organization can scandalize only those who do not understand fully the nature of the international community, of international law, and of the international organizations. The international community is essentially non-organic: by this, I mean that the sovereignty of its members is held in such high regard that there are no community entities to which the states can be forced to submit their will (unlike the situation within the nation-states, where citizens are subject to the organs of the state). International law is the direct expression of the international community itself, and its — only general — regulations are inevitably consuetudinary, given the absence of a legislator at world level. The international organizations, of which the United Nations Organization is the most important, are the only entities that the international community has managed to create. But they are entities that the states themselves have created through the establishment of international treaties, and that the states may, at will, decide to join or not to join. Thus, their very nature prevents them from achieving the status of world legislators, or of world governments, and from replacing the processes traditionally associated with the international community (those provided for by the respective institutional treaties) with their own decision-making processes. This is, in part, because the decision-making processes of an internal organization are codified, whereas those of the international community evolve as the community itself inexorably evolves.
Ever since it was founded (by those such as Grozio), it has been clear that international law is the expression of the dominant forces within the international community, just as domestic law is the expression of the dominant forces within a given State community. Thus, when the United Nations Organization was formed, the attribution of a power of veto — and with it a position of relative privilege — to the five nations that won the Second World War, would have seemed quite natural, given the undoubted supremacy that those powers enjoyed within the international community at that time. The problem is that now, more than fifty years on, these nations are no longer the dominant powers and the attribution of the power of veto — should this, indeed, be allowed to remain at all — ought to reflect the current balance of power. More important still, the Charter needs to incorporate mechanisms by which the attribution of the power of veto can be adapted to the international community’s ever changing physiognomy. Instead, the United Nations Charter is a rigid constitution that cannot be modified without the agreement of the five members that exercise the power of veto.
The Charter of the United Nations makes provision, in Articles 108 and 109 respectively, for its own amendment and revision (amendments are thought to be capable of introducing the more substantial modifications). However, in both cases, the procedures involved are complex and, furthermore, neither amendments nor revisions can come into force without the agreement of all five permanent members of the UN Security Council. Hence the rigidity of the Charter that I mentioned earlier. To date there has, in fact, never been a single revision of the Charter and the only amendment successfully introduced was the one that increased the number of Security Council members from 11 to 15. And yet, leaving aside the question of the composition of the Security Council, the Charter, as scholars unanimously agree, is in desperate need of revision. One need only consider its utterly obsolete provisions on decolonization, or the fact that whereas the “domestic jurisdiction” of the member states, contemplated by Art. 2, par. 7, of the Charter, is now routinely and generally recognized as overrideable in the presence of gross violations of human rights, the actual text of Art. 2, par. 7, of the Charter makes no specific mention of this exception.
As mentioned earlier, the various proposals for modification of the composition of the Security Council currently on the table do not affect the power of veto, either in the sense of taking it away from the states that currently exercise it, or in that of possibly extending it to new states. It is entirely predictable that modifications of this kind would be opposed by the states that enjoy the power of veto and consequently have absolutely no chance of being passed. Therefore, all the current proposals relating to the composition of the Security Council, being quite irrelevant to the purposes of this discussion, can simply be discounted. There is just one observation that, by way of an aside, I would make at this point: the attribution of a permanent seat to another European state would effectively bury all hopes of the European Union ever equipping itself with a single foreign policy; on the other hand, the attribution of a permanent seat to the EU (a move officially requested by the European Parliament on January 29th, 2004) would run into the problem of the current absence of a single European foreign policy that the Union, through its permanent seat, might promote. It is, in short, a vicious circle.
It is the rigid nature of the Charter of the United Nations, together with its incapacity, over the past fifty years or more, to adapt to the changing physiognomy of the international scenario, that is responsible for the crisis now gripping this organization. It is thus, as I said before, a structural crisis that does not depend on the positive or negative outcomes of the UN’s various actions. Both its successes and its failures are nothing more than the result, respectively, of the five permanent members’ agreement or disagreement over the action to be taken in specific circumstances. The United Nations Organization can be likened to a cathedral with only the façade left standing: behind the UN façade there are, basically, five states into whose hands the international community is asked to place its destiny. This unacceptable situation is the reason why we are now witnessing a gradual loss of the United Nations’ credibility and legitimacy in a decline that looks likely to mirror that of the organization which the United Nations itself replaced — the League of Nations.
Some states, too, have rigid constitutions, not readily modifiable in response to changes in the fabric of society. But, crucially, the states, behind every “written” constitution, also have a “living” one that reflects the real pattern of relations that exists between the members of the community governed by the constitution. This “living” constitution comes into play in situations in which the written constitution proves too inflexible, and it allows the community to take direct control of the constituent moment. This is also true of the United Nations. Shadowing, or indeed preceding, the Charter of the United Nations there is the will of the international community of states, which is expressed through the formation of essentially consuetudinary regulations. These regulations reflect the will of the prevailing forces within the international community — as well as the concurrence of all the others — in accordance with the time-honoured process by which general international law comes into existence. It is, moreover, a process that refuses to be bound or paralyzed by any international treaty, even an important one like the Charter of the United Nations. Consequently the growing irrelevance of the United Nations, which, as we have seen, appears to be unavoidable, will not leave a legislative vacuum; on the contrary, new regulations will evolve spontaneously through the activity of the international community and the relations between its members, just as they always have done since the dawn of international law. With regard to their substance, these regulations may, for example, recognize, or not, in broad terms, the concept of legitimate preventive defence; they may extend the definition of aggression to cover acts of terrorism; or they may legitimize humanitarian interventions (it may be recalled that, in the case of Kosovo, Russia’s opposition prevented the reaching of consensus among the five permanent members, but the intervention went ahead all the same). What is certain is that the five current holders of the power of veto (even though they would probably not be opposed to a perpetuation of the status quo) will not be the ones that determine these rules, precisely because these states are no longer the dominant forces within the international community.
But while I am convinced of this conclusion, no one can predict the direction in which the international community will evolve in the wake of the United Nations’ ultimate demonstration of its incapacity to guarantee the maintenance of peace. One thing, however, is certain: this evolution, despite the affording of due consideration — never historically lacking — to the opinions of less important states, will clearly be shaped by the attitudes of the states that have a dominant role within it. Granted, the United Nations will probably go on dealing with the more specifically technical questions that are currently its province, but it is possible that the international community will begin managing directly, and on a case-by-case basis, the various crises that, in the future, will arise and constitute a threat to peace. It may do this through what have been termed “coalitions of the willing”, which would also be formed on a case-by-case basis. Alternatively, the international community might be tempted to create a new international organization, open only to states that have a democratic political regime. In the context of the unstoppable evolution of international law, these are the proposals currently on the table.
Ugo Draetta

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