Reforming the UN Security Council Membership

The illusion of representativeness

Sabine Hassler

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781135137083
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book comprehensively examines the different proposals put forward for reforming the UN Security Council by analysing their objectives and exploring whether the implementation of these proposals would actually create a representative and more effective Security Council. The book places the discussion on reform of Security Council membership in the context of the council's primary responsibility, which is at the helm of the UN collective security system. The author contends that only a Council that is adequately representative of the UN membership can claim to legitimately act on the members' behalf. This book offers an inquiry into the Council's constitutional framework and how far that framework still reflects the expectations and intentions of the founding nations, whilst remaining flexible enough to satisfy today's, and possibly tomorrow's, membership. Through the use of policy-oriented jurisprudence and elements of the International Law/International Relations theory this book explores how reform can best be realised.

Reforming the UN Security Council Membership will be of particular interest to scholars and students of International Law and International Relations.

1 The Security Council at the helm of UN collective security

Introduction

Security is, primarily, an individual aspiration. Where individuals come together and live by a set of rules, their common security starts to reflect the core values of the community. They aspire to create a communal framework to replace the need for unilateral security measures. Therefore, security implies a common interest and a strong presumption against the unilateral use of force, with two basic requirements: the prevention of armed conflict and peaceful resolution of disputes, and the containment of conflicts to prevent them from escalating to the point where they might affect general stability. Security of a community builds on goodwill and the preparedness to proceed by consensus.¹ The success of such a communal framework inevitably also depends on whether or not the community’s values are commonly accepted, adhered to and defended when necessary.

The United Nations was created as an expression of the desire for global security. After the devastating effects of two world wars, the international community’s main interest concentrated on the containment of inter-state conflicts. The goal was not to rebuild the League of Nations, predecessor to the UN, in a fashion that achieved an ideal system of collective security, but rather to take seriously the conditions necessary for ensuring peace and security. Consequently, UN collective security is primarily based on a positive pledge of affirmative assistance rather than a negative commitment to refrain from the use of force against fellow states.² The immensity of this effort, however, meant that the system was founded on rather rigid terms.

As the UN’s executive organ, the Council was placed at the centre to police and enforce the UN collective security system. With this, the Council acts in a politically sensitive field which not only makes the task of interpreting its powers and competences extremely delicate but also complicates the question of who sits on the Council at any relevant point in time. In view of limitations such as procedural constraints and diverging opinions on whether to act, and to what extent and whether the participants in the decision were in fact honest brokers, it is remarkable that the Council has been able to act at all.

Before looking at the origins of the Council to set the context for the reform discussion, it is worthwhile outlining the context in which the Council currently acts. This will, I hope, shine a light on how the Council has on occasion managed to free itself from narrow definitions and has started to make the best of what is available, which includes making the rules work for it.

From individual to collective security

As John Locke stated in his Second Treatise on Government (1690), a system of collective security comes into being when entities organize themselves into a community to establish a regime that favours and promotes peace and security while affording mutual protection against aggression. Central is a binding obligation on a clearly defined community, nearing the ideal of universality of membership which, however, need not necessarily mean the universal global community. Rather, the essential point is universality of membership for the region involved.³ The underlying assumption is that all members of this community share a primary interest in the maintenance of peace and security and that any threat is to be treated as the concern of all members of the community, who agree in advance to react through a collective response. This guarantee of a combined automatic and reliable response⁴ assures protection and is intended to constrain a potential lawbreaker from any hostile attempt. Membership in such a community consequently entails the associative obligation to abide by the norms which define that community, including the – impliedly assumed – obligation to respect legal commitments.⁵

Systems of collective security

The significance of the concept lies in the institutionalization of the use of force and in making self-defence, while not unnecessary, subject to stringent requirements. Collective security is, if nothing else, all about balancing and the aggregation of military force against threats to the community’s peace and security.⁶ Ideally, such a regime should seek to ensure that any change is peaceful and that force is used only to repel an attack; yet experience indicates a tendency towards a regime that resolves to defend a particular status quo against forceful change,⁷ although the ‘political utility of trying to freeze the status quo’⁸ indefinitely seems ultimately counterproductive.

Essentially, collective security transcends the particular interests of the individual and seeks to expand the realm of private interest so that even those whose security is not immediately threatened have a stake in preventing aggression.⁹ Ideally, the aggression by one against another is to be resisted by the combined action of all others. Taken in the international context, collective security is the commitment by sovereign entities to resolve disputes irrespective of nationalistic concerns. Harry S. Truman, then President of the United States, noted in his Address at the Closing Session of the United Nations Conference in San Francisco on 26 June 1945 that ‘we all have to recognize – no matter how great our strength – that we must deny ourselves the licence to do always as we please’;¹⁰ although, admittedly, this is quite contrary to international experience.

Peace, accordingly, is more than the mere absence of war. A certain price will have to be paid. That price is the organization into a community and the willingness of each member to contribute his share of effort and, if need be, of blood to uphold the law of the community.¹¹ A collective security regime is fully aware of the war-causing features of the system within which it operates and therefore seeks to provide a more effective mechanism for dealing with aggressors when they emerge, as well as to make aggression less likely by balancing the competitive nature of international relations. In effect, when it works, it confronts aggressors with preponderant as opposed to merely equal force.¹² In summary, collective security is ‘the expectation of reciprocity, the fear of reprisal and the recognition that in the common interest of saving the community one cannot have one’s way on every issue’.¹³

There are essentially three systems that can be classified as collective security.¹⁴ Whereas the first two seem almost diametrically opposed, the third can be seen as the compromise. First, security through the reduction of arms as well as measures of confidence-building and reciprocal control; second, security through military alliances like NATO and, at one point its counterpart, the Warsaw Pact. Such arrangements are based on the principle that defence is the only legitimate basis for the use of force. However, there are quite differing views about whether NATO is an independent collective defence system or a regional arrangement in the sense of Article 52 of Chapter VIII of the UN Charter.¹⁵ And finally, collective security of the type the UN promotes. With the end of World War II a new era of collective security based on the concept of multilateralism was intended to replace unilateralism, recognized as detrimental to a global community. It is thus that the UN was instituted as the pre-eminent institution of a multilateral community.¹⁶

UN collective security

Remarkably, the term ‘collective security’ is not found in the UN Charter. Rather, the Preamble speaks of the ‘maintenance of international peace and security’, which is based on the effort

… to unite our strength to maintain peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest …

[emphasis added]

This underlines the importance of maintaining international peace and the aim to advance the security of the community through substantive commitments and procedural rules, but also the readiness to use force to combat aggression and to prevent threats to the peace from materializing into breaches of the peace or acts of aggression. With this, the founders of the UN clearly acknowledged the possibility that there may be individual states that place themselves outside the legal order of the community by either violating peace and security or, at least, endangering it. Thus, although the prime objective is cast in pacific terms and encourages the resolution of disputes through peaceful means, it is sometimes necessary to resort to more forceful means to either prevent the escalation of a situation or limit its effects.

The UN Charter is about keeping the peace, not about pacifism, with the emphasis on the peaceful settlement of disputes as exemplified in Articles 2(3) and 34. The commitment to peaceful co-existence is enshrined in Article 2(4), the ban on aggressive use of force:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.

This ban is cast in terms of an obligation binding only upon UN member states, but the International Court of Justice (ICJ) has recognized it as stating a principle that has become part of customary international law, a rule of jus cogens, binding on all states.¹⁷ Although the UN Charter is theoretically ‘an elegant, carefully drafted instrument’ that makes war illegal and unnecessary,¹⁸ it has to be pointed out that Article 2(4) has been the subject of extensive judicial scrutiny and many learned analyses. Its interpretation, therefore, is still not ‘devoid of all ambiguities’. Not only is the scope of the prohibition not entirely clear, it is also ‘not easy to capture in precise legal rules’¹⁹ – a point that is picked up again below.

The institutionalization of the use of force in the UN context hence does not imply an automatic collective effort whenever a breach of the peace occurs pursuant to a legal commitment by all to defend each other. The ultimate goal is, rather, the maintenance of international peace and security within a tightly regulated enforcement system. It is evident that the founders of the UN were less interested in creating an ideal collective security system and focused more on ‘the practical problem of managing post-war relationships more systematically than alliance systems had done in the past’.²⁰ While the Covenant of the League of Nations had emphasized a legal approach to the prevention of war by placing specific obligations on all its members, the UN Charter anticipated more proactive, pragmatic and political strategies,²¹ and thus simply reflected the art of the possible at the time.²²

In 1945 this may, indeed, have been the pinnacle of the achievable. Increasingly, however, it may be asked whether the art of the possible cannot be improved upon, considering that the world today is markedly different. Change is undoubtedly in the air and calls for reform are becoming ever more pervasive; and where better to start than with the centre of the UN’s collective security administration.

The Security Council’s mandate

Collective security can only succeed if it operates in a context of alternatives. The UN Charter provides two routes of action: Chapter VI, which provides for the ‘Pacific Settlement of Disputes’, and Chapter VII, which provides for ‘Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression’. In order to administer the system, the founders acknowledged early on the necessity of a central authority to channel efforts and to act swiftly on behalf of the entire membership. This was clearly manifested by the proposals that emerged at Dumbarton Oaks²³ and so the exercise and maintenance of the UN’s collective security system was conferred onto a central executive organ, the Security Council. Articles 24 to 26 in...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Preface
• Acknowledgements
• Abbreviations
• Tables
• Introduction
• 1. The Security Council at the helm of UN collective security
• 2. The Security Council’s composition and membership
• 3. Institutional reform and its significance for the Security Council
• 4. Proposals on representativeness
• 5. Proposals on size
• 6. Proposals to remedy imbalance
• 7. Membership criteria, power prerogatives and periodic review
• 8. A ‘perfect’ Security Council?
• 9. Concluding thoughts
• Notes
• Further reading
• Index