UUUK 3023 PUBLIC INTERNATIONAL LAW II
WRITTEN ASSIGNMENT
TITLE : UNITED NATION SECURITY COUNCIL
MEMBERS :
NUR FATIN BINTI MOHAMAD FARID (A146475)
NUR NATASYA BINTI MOHTARUDIN (A146415)
ZAINAL ASNAWI ASYRAF BIN ZAINAL ABBIDIN (A146508)
MUHAMMAD NUR SADIQIN BIN MOHD KHUSNI (A146690)
NURADIBA ZARKASYA BINTI MOHD SALLEH (A146547)
UMMI AMYRA NATASHA BINTI AZHAR (A146704)
PREPARED FOR :
PROF MADYA DR. SALAWATI BINTI MAT BASIR
1.0
Introduction to United Nation Security Council
The United Nations was born out of the turmoil of two devastating world wars. It was
established in the hopes that a strong international organization could foster enough cooperation
between nations in order to prevent future conflicts 1. In 1945, representatives from 50 countries
met in San Francisco to draw up the United Nations Charter. Those delegates deliberated on the
proposals worked out by the representatives of China, the Soviet Union, the United Kingdom and
the United States at Dumbarton Oaks, United States in August and October of 1944. The Charter
was signed on June, 26 1945 by the representatives of the 50 countries. Poland, which was not
represented at the Conference, signed it later and became one of the original 51 Member States.
Since then the United Nations has grown significantly. The United Nations General Assembly
now consists of 191 Member States.
The predecessor of the United Nations was the ill-fated League of Nations, which was
conceived under similar circumstances after World War I. The League of Nations ceased its
activities after failing to prevent World War II. Fifty-eight years after the signing of the Charter,
the world has changed dramatically. Its universal character and comprehensiveness make the
United Nations a unique and indispensable forum for governments to work together to address
global issues. At the same time, there remains a large gap between aspiration and real
accomplishment. There have been many successes and many failures. The United Nations is a
bureaucracy that struggles understandably in its attempt to bring together 191 countries. It
must come at no surprise, therefore, that a consensus cannot always be reached with so many
different competing voices.
The Security Council of the United Nations has the primary responsibility under the
United Nations Charter for the maintenance of international peace and security2. Under the
1 C. Mikulaschek, The United Nations Security Council and the Responsibility to Protect: Policy, Process and
Practice, Report from the 39th International Peace Institute Vienna Seminar on Peacemaking and Peacekeeping, in:
H. Winkler/T. Larsen/ C. Mikulaschek (eds), The UN Security Council and the Responsibility to Protect: Policy,
Process and Practice, 2010, pg. 20.
2 Report of the U.N. Secretary-Generals High-Level Panel on Threats, Challenges and Change, A more Secure
World: Our Shared Responsibility, pg. 252.
Charter, all Members of the United Nations agree to accept and carry out the decisions of the
Security Council. While other parts of the United Nations make recommendations to various
States, the Council has the power to make decisions that Member States are obliged to obey. This
gives the Security Council a very important and powerful position in the United Nations and in
the world.
During the first forty-five years of its existence, the Council was paralyzed by the Cold
War, which polarized many of the permanent Security Council members. During this time, world
power was concentrated in the United States and the Soviet Union, but there were a few
noteworthy Council actions3. These include the June 1950 call for United Nations members to
help South Koreans the Soviet Union was not present at the vote. After the thawing of the
international political climate, however, the Security Council has been very active.
The Security Council is currently made up of 15 United Nation Member States. Five of
the members were designated permanent members in the original charter. These five countries
are China, France, Russia, the United Kingdom, and the United States. These permanent
members have the power of veto. This veto power has proved to be extremely controversial in
reform debates. The veto is cast much less than during the Cold War, but it is still very much in
use as a threat that blocks action4.
The remaining ten members of the Council are elected by the General Assembly to twoyear non-renewable terms. These seats are allotted regionally so that there is representation in all
3 Barber, B.R. (2003) Fear's Empire: War, Terrorism, and Democracy, New York: Norton.
4 D. Chandler, The Responsibility to Protect? Imposing the Liberal Peace, International Peacekeeping 11 (2004),
59 et seq.
the major world regions two to Asia, two to Latin America, two to Western Europe, one to
Eastern Europe, and three to Africa.
The Security Councils main responsibility is peace and security. In this realm it performs
three major functions: mediation, peacekeeping, and enforcement5. Acting under Chapter VI of
the UN Charter, the Security Council assists in the peaceful settlement of disputes by mediating
conflicts and negotiating settlements. It also establishes and oversees UN peace-keeping forces.
After the Cold War when there was greater consensus among the members, the Security Council
established numerous peacekeeping operations. In the mid-1990s there were over 70,000
peacekeepers deployed. Under Chapter VII of the UN Charter, the Security Council can take
enforcement measures against offending States or entities. For example, the Security Council
has imposed economic sanctions against countries such as Iraq 6. Under Article 42 of the Charter,
the Security Council also can use military force to promote peace and security.
Member States not on the Coucil are often unsatisfied with the results of Security Council
operations. These operations are often seen as selfishly motivated by the powerful states taking
part, and not sufficiently reflecting the will of the General Assembly as a whole. For example,
the recent and on-going war in Iraq instigated by the United States came with no United Nations
mandate and little international consensus.
In addition, the United Nations Security Council "power of veto" refers to the veto power
wielded
solely
by
the
five
permanent
members
of
the United
Nations Security
Council (China, France, Russia, United Kingdom, and United States), enabling them to prevent
the adoption of any "substantive" resolution, as well as decide which issues fall under
"substantive" title. This de facto control over the United Nations Security Council by the five
5 L. Arbour, The responsibility to Protect as a Duty of Care in International Law and Practice, Review of
International Studies 34 (2008),pg 445.
6 J. Allain, The True Challenge to the United Nations System of the Use of Force: The Failures of Kosovo and Iraq
and the Emergence of the African Union, Max Planck UNYB 8 (2004), pg. 237.
governments is seen by critics, since its creation in 1945, as the most undemocratic character of
the UN.7 Critics also note the veto power as a main cause for most international inaction on war
crimes and crimes against humanity. However, the veto does not apply to procedural votes,
which is significant in that the Security Council's permanent membership can vote against a
"procedural" draft resolution, without necessarily blocking its adoption by the Council. The veto
is exercised when any permanent member the so-called "P5" (Permanent Five) casts a "negative"
vote on a "substantive" draft resolution. Abstention or absence from the vote by a permanent
member does not prevent a draft resolution from being adopted.
Next, the President of the United Nations Security Council is the presiding officer of that
body. The president is the head of the delegation from the Security Council member state that
holds the rotating presidency. Article 30 of the United Nations Charter states that the Security
Council is empowered to establish rules of procedure, "including the method of selecting its
President".8 The Security Council has established the following method of selecting the president
which the presidency will rotates monthly among the state members of the Security Council. The
rotation takes place in alphabetical order of the member states official United Nations names in
English.9 All members of the Council, including the President, must present credentials issued by
either the head of state, the head of government, or the minister of foreign affairs of their
respective states to the Secretary-General, except if the representative is also the head of
government or minister of foreign affairs.10 The role of president of the Security Council
7 Francis O. Wilcox. The Yalta Voting Formula. The American Political Science Review, Vol. 39, No. 5 (Oct.,
1945), pp. 943-956, from http://www.jstor.org/stable/1950035 [26 May 2016]
8 Sec. 30, Chapter V, United Nations Charter.
9 Rule 18, Chapter IV, Provisional Rules of Procedure of the United Nations Security Council.
10 Rule 13, Chapter III, Provisional Rules of Procedure of the United Nations Security Council.
involves calling the meetings thereof,11 approving the provisional agenda (proposed by
the Secretary-General),12 presiding at its meetings,13 and overseeing any crisis. The president is
authorized to issue both Presidential Statements14 (subject to consensus among Council
members) and notes,15 which are used to make declarations of intent that the full Security
Council can then pursue. The President also usually speaks to the press on behalf of the Security
Council.
11 Rules 1 and 2, Chapter I, Provisional Rules of Procedure of the United Nations Security Council.
12 Rule 7, Chapter II, Provisional Rules of Procedure of the United Nations Security Council.
13 Rule 19, Chapter IV, Provisional Rules of Procedure of the United Nations Security Council.
14 UN Security Council: Presidential Statements 2008
15 Notes by the president of the Security Council
2.0Voting Procedure (Veto Power) Based On UN Article And Cases
According to Article 27 of the Charter provides on:
1
2
Each Member of the Security Council shall have one vote.
Decisions of the Security Council on procedural matters shall be made by an
affirmative vote of nine Members.
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;
provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a
party to dispute shall abstain from voting.
A veto Latin for I forbid is the power to unilaterally stop an official action,
especially the enactment of legislation16. A veto can be absolute, as for instance in the United
Nations Security Council, whose permanent members can block any resolution. Or it can be
limited, as in the legislative process of the United States, where a two-thirds vote in both the
House and Senate may override a Presidential veto of legislation. A veto gives power only to
stop changes, not to adopt them. Thus a veto allows its holder to protect the status quo.
Under Article 27 of the UN Charter 17, Security Council decisions on all substantive
matters require the affirmative votes of nine members. A negative vote or veto by a permanent
member prevents adoption of proposal, even if it has received the required votes. Abstention is
16 Bardo Fassbender, UN Security Council Reform and the Right of veto: A Constitutional Perspective,
1998.
17 The United Nations, Charter of the United Nations (1945), United Nations Website,
<http://www.un.org/en/documents/charter/index.shtml>
not regarded as a veto in most cases, though all five permanent members must actively concur to
amend the UN Charter or to recommend the admission of a new UN member state. Procedural
matters are not subject to a veto, so the veto cannot be used to avoid discussion of an issue. The
same holds for certain decisions that directly regard permanent members. A majority of vetoes
are used not in critical international security situations, but for purposes such as blocking a
candidate for Secretary-General or the admission of a member state.
An early veto by Soviet Commissar Andrei Vishinsky blocked a resolution on the
withdrawal of French forces from then-colonies of Syria and Lebanon in February 1946; this
veto established the precedent that permanent members could use the veto on matters outside of
immediate concerns of war and peace18. The Union of Soviet Socialist Republics (USSR) went
on to veto matters including the admission of Austria, Cambodia, Ceylon, Finland, Ireland, Italy,
Japan, Laos, Libya, Portugal, South Vietnam, and Transjordan as UN member states, delaying
their joining by several years. Britain and France used the veto to avoid Security Council
condemnation of their actions in the 1956 Suez Crisis 19. The first veto by the US came in 1970,
blocking General Assembly action in Southern Rhodesia. From 1985-1990, the US vetoed 27
resolutions20, primarily to block resolutions it perceived as anti-Israel but also to protect its
interest in Panama and Korea. The USSR, United States and China have all vetoed candidates for
Secretary-General, with the US using the veto to block the re-election of Boutrous BoutrousGhali in 199621.
Abstention is a term in election procedure for when a participant in a vote either does not
go to vote or, in parliamentary procedure, is present during the vote, but does not cast a ballot.
18 Arslan, Emir Chekib, Syrian Opposition to French Rule. Current History, 1924, page 239-247.
19 Rose McDermott, Risk-Taking in International Politics, Chapter 6, 2001.
<http://www.press.umich.edu/pdf/0472108670-06.pdf>.
20
Changing Patterns in the Use of the Veto in the Security Council, Global policy Forum Website, 2008.
<http://www.globalpolicy.org/images/pdfs/Z/Tables_and_Charts/useofveto.pdf>
Abstention must be contrasted with blank vote, in which a voter casts a ballot willfully made
invalid by marking it wrongly or by not marking at all 22. A blank voter has voted, although his
vote may be considered a spoilt vote, depending on legislation, while an abstaining voter has not
voted. Both forms may or may not, depending on the circumstances, be considered to be a
protest vote.
In the United Nations Security Council, representatives of the five countries holding a
veto power sometimes abstain rather than vetoing a measure about which they are less
enthusiastic, particularly if the measure otherwise has broad support. By convention, their
abstention does not block the measure, despite the wording of Article 27 of the United Nations
Charter. If a majority of members of the United Nations General Assembly or one of its
committees abstain on a measure, then the measure fails.
The International Court of Justice in its advisory opinion on Legal Consequences for
States of the Continued Presence of South Africa in Namibia upheld that the practice of
abstention by a permanent Member as not constituting a bar to the adoption of resolutions. The
practice of abstention has been accepted by the permanent Members and now becomes an
established norm of the law of the Charter23.
21
James D. Boys, A Lost Opportunity : The Flawed Implementation of Assertive Multilateralism (19911993), European journal of American studies [Online], Vol 7, No 1, document 6, 2012.
<http://ejas.revues.org/9924>.
22
Martha A., Abstention In Constitutional Cases: The Scope of The Pullman Abstention Doctrine, Chapter 1,
University
of
Pennsylvania
Law
Review,
1974,
page
1074.
< http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=5755&context=penn_law_review>.
23
Goodrich, Hambro and Simons, Charter of the United Nations: Commentary and Documents, 3rd rev edn, New
York: Columbia university Press, 1969, page 230.
10
In criticizing the veto power given to the permanent Members, the five permanent
members have two well-known Council advantages, which are first, a continuous membership
and secondly veto power, which both privileges are as, provided in the Charter. However,
permanent Members have taken many more special privileges and perks for themselves. They
insist on the right to control certain high-ranking UN posts and to name the tenants in those posts
or at least have a large influence over who among their nationals may occupy them. They
intervene regularly in the workings of the Secretariat and disproportionately influence the
wording of reports and the shaping of initiatives. They insist on the right to have one of their
nationals sit as a judge in the World Court, so that their interests could be represented there. And
they even have their own private lounges at UN headquarters. These privileges for the permanent
five members place a heavy burden on the UN, reducing, as a consequence, the rights and
privileges of all others. Adding five or six more states in this first class category would be a
ruinous development24.
The international community must not sit ideally on the face of double standard practiced
by the most powerful organ, which here is the Security Council, and dominated by the permanent
five members, but instead they must remind it of its responsibility to exercise its powers in
accordance with the purposes and principles of the United Nations. Surely, the Security Council
is responsible to maintain or restore international peace and only for this purpose it may take
enforcement actions against a sovereign State under Chapter VII of the UN Charter. Beyond this,
the Security Council cannot interfere in matters that fall within the domestic jurisdiction of
sovereign States25. The Council should have acted against these types of States but it was
powerless to do so because the aggressor was a permanent member of the Council armed with
veto power.
24
James Paul and Celine Nahory, Theses Towards a Democratic Reform of the UN Security Council, 2005.
25
Mohammad Naqib, United Nations Security Councils Sanctions Against Iran: A Nuclear Apartheid,
Malayan Law Journal Articles, 2007.
11
UN reform must reflect the realities of change, including the new capacity of civil society
to contribute to global governance. Reform of the Security Council is central to reforming the
UN system. Permanent membership limited to five countries that derive their primacy from
events fifty years ago is unacceptable; so is the veto power. Moreover, to put addition in more
permanent members as well as to give them the veto power would result in regressive action.
3.0
Relevancy of the United Nation Security Council
To evaluate whether United Nation Security Council is still relevant or irrelevant, we must
evaluate their primary function. Evaluation can be made through incident and cases involving the
security council. Under Article 24 of the United Nation Charter, the Security Council is entrusted
with the primary responsibility for the maintenance of international peace and security. The
United Nation members are bound by its decision and it clearly stated in article 25 the
Members of the United Nation agree to accept and carry out the decision of the Security Council
in accordance with the presence Charter. This is the only provision in the United Nation where
the decision made by the Security Council especially as decided by the 5 veto nation is binding
upon all of its members.
The Council carry out their duties by two means. Firstly, as stated in Chapter VI (Articles 33
to 38) they shall carry the function through peaceful settlement in any international disputes. If
the first method failed, Chapter VII (Articles 39 to 51) provided that the council may take
enforcement action. The most significant provision in this second approach is Article 39 that
stated:
12
The Security Council shall determine the existence of any threat to the peace, breach of the
peace, or act of aggression and shall make recommendations, or decide what measures shall be
taken in accordance with Articles 41 and 42, to maintain or restore international peace and
security
In determining the relevancy of the council, evaluation shall be made through the decision
made by the council by using the first and second approach. Over the past of the history, the
Council managed to arrange certain peaceful settlements and address the raised issues. For an
example, in 1988, the Security Council sent the UN peacekeeping force to Nicaragua upon the
request of the current government. The Council enforced the regional settlement process as
started by the Guatemala Accords of 1987. In the end, the council managed to supervised a
peaceful election in Nicaragua in 1990 to appoint a new elected government and thus end the
civil war and violence26.
However, past success is not the main indicator to evaluate the relevancy of the Council.
In presence case, the Council failed miserably to conduct a peaceful settlement in settling the
issues arose in Middle East. Syrian conflict is the best example to show how the Council failed to
carry out its functions.
After 5 years since the Syrian conflict erupted, there have been more than 260,000 people
killed as stated by the Syrian Human Right Observatory. The government led by Bashar Al
Ashad have announced a civil war against the protestor and Islamic State of Iraq (ISIS) whom
tried to take part of Syrian borders. In February 2012, since the second time the conflict begun,
Russia and China vetoed against the United Nation Security Council draft resolution aimed to
hold the Syrian government accountable for crimes against the humanities.
Even though the resolution got the supported vote by the rest of the 13 members, and the
containment of the resolution was purely intended to help protect civilians and halt atrocities, 2
of the permanent council disagree against the resolution and it was not passed nor enforced. Ever
since the failed resolution, the killing rate in Syria increased from approximately 1,000 per
26
Nd White. The UN Security Council and the settlements of disputes.http://planetruth.com/Aoude/geocities/unscdisp.html [29/5/2016]
13
month to 5,000 per month during 2012 as the civil war continued. With each innocent lives
killed, the Security Council bear the burden for their failure to protect the Syrian people27.
The second objective of the Council was also violated by its permanent members through
the Iraq and Afghanistan wars. Both of these wars were initiated after the 9 th September 2001
attack at the World Trade Centre in US. The American government later on declared a war
against Iraq and Afghanistan for such a vogue reasons. It was claimed by the former US
president, George W. Bush that the war against Iraq because of the illegal keeping of weapon of
mass destruction (WMD). Ironically, the independent UN Inspection in 2015 released a
statement that there is no WMD found in Iraq. The excuse behind Afghanistan attack were more
absurd where it was alleged by US and its ally that Al-Qaeda have headquarters were in Afghan
and a full force attack should be made to destroyed these extremist. However, the attacked were
classified and later on were not revealed to public. The only thing that the public knew were the
cause of the holy war and the huge damaged suffered by the people.
Both of these attacks were not issued in the Security Council meeting. It was done by US
and its allies mainly the Great Britain and France. No discussion or voting took place in UN
Headquarters. During the presidential debate in 2004, Senator John Kerry who was up against
Bush for the presidency seat stated in one of his campaign speech that Bush have lead US and its
citizens to an endless war for an unclear motive. Even the great former Malaysia President, Tun
Dr Mahathir Mohammad said that the Iraqian and Afghanistan War were an international crime
committed by US and its allies and also the Security Council must be held responsible for their
failure to prevent such incident28.
27
Dr Simon Adams.Failure to Protect: Syria and the UN Security Council.(5 March 2015).
http://www.globalr2p.org/media/files/syriapaper_final.pdf [29 May 2015]
28
Global Reserach. Malaysias ex-PM Mahathir wants Iraq War leaders on war crimes charges. (28 April
2008).http://www.globalresearch.ca/malaysia-s-ex-pm-mahathir-wants-iraq-war-leaders-on-war-crimescharges/8826?print=1. (29 May 2016)
14
Overall, looking at the status quo of an established international organization, we cannot
deny that United Nation is by far the biggest establishment compromising of 193 nations.
However, the Security Council need to be improvised greatly and immediately to ensure that
there is no future failure made by the organ. The most troubling cause is the fact that the
permanent veto members can easily overthrow and settlements of resolution brought forwards.
On top of that, the power given to the permanent council as stated in Article 25 is too big and this
exposed to an abuse of powers. Amendments should be made to the UN Charter to ensure justice
and balance can be created in the Security Council. Justice should also be done for the crimes
against humanity as committed by US and its allies. There should be a fair trial conduct by the
International Court of Justice to bring forward previous leaders that were involved in the wars.
Even though such situation seems impossible, it can be done by unity formed against the other
countries in the UN members. If these plans failed to take its course, one fine day the United
Nation Security Council will be a failure as the League of Nation and later on become irrelevant
for the modern world.
4.0Evaluation and Reform
The United Nations Security Council is of unique importance and authority in efforts by
nations to maintain international peace and security, yet it is widely viewed as having had a
mixed track record. The Council urgently needs to be reformed. Such reform is hemmed-in by:
entrenched privileges, dynamic and competing interests, and a lamentable lack of imagination 29.
The failure to reform the Council raises one of historys abiding and most dangerous questions:
must we await a serious breakdown before wisdom, which is available now, is acted upon?
First, and above all, the Charter identifies, from among the membership, a small,
privileged group of members. These members are given unique powers. In fact, these members
determine every issue of importance and are themselves virtually above the law. These are the
Permanent Members of the Security Council, often referred to as the Permanent Five.
29
E.H. CARR. THE TWENTY YEARS CRISIS, 1919-1939: AN INTRODUCTION TO THE STUDY OF
INTERNATIONAL RELATIONS (Michael Cox ed. Palgrave 2001) (1939).
15
Second, the Charter creates an objective Secretariat to provide advice, information, and
recommendations on what might be the best course of action to follow with respect to any given
matter. Clearly, this Secretariat needs to be led by a Chief Executive Officer (CEO). This CEO is
called the Secretary General of the U.N., and he or she should be a person of outstanding ability
and objectivity. On the latter, the Charter requires that the Secretary General and the staff shall
not seek or receive instructions from any government or from any other authority external to the
organization.30
The Charter provides a contradicting set of circumstances. On the one hand, there is a
notion of egalitarianism among member states, common purpose and commitment, and the
accompanying notion that this political commitment will be supported by a truly objective, fair,
and capable bureaucracy. On the other hand, in the midst of this extraordinary set of
circumstances, a group with astonishing privileges is established, and specifically enabled to play
an all-pervasive and dominant role -- the Permanent Five.
The gravity of the subject matter, for which the Security Council is given primary
responsibility, leads to Articles 41 and 42 of the Charter. The first of these, Article 41, has the
Security Council attempting to bring about the settlement of disputes by peaceful, non-military
means. The second, Article 42, provides for action when that first activity has not borne fruit.
Article 42 authorizes the Security Council to take action, by air, sea or land forces as may be
necessary to maintain or restore international peace and security. In sum, under the Charter,
States are enjoined to cooperate with each other, to harmonize their actions, and to settle all of
their disputes by peaceful means. States are deemed to be sovereign, self-determined,
independent, and inviolable. Violation of the territorial integrity of any state is simply against the
law. States are also required to accept all decisions of the Security Council, including when the
Councils decisions may include the exercise of armed force to bring about conformity with
decisions.
This package amounts to nothing less than an attempt, at San Francisco, to outlaw war
and to provide a collective mechanism for enforcing the settlement of disputes, which the
30
S.C. Res. 64/28, U.N. Doc. S/RES/1887 (Sept. 24, 2009)
16
Charter wisely assumes, are bound to occur. The Charter is why Iraqs invasion of Kuwait in
1990 and the U.S./U.K. invasion of Iraq in 2003 were both illegal actions 31. Neither actions were
approved or undertaken on behalf of the Security Council under the rubric of the maintenance
of international peace and security.
In contrast, the expulsion of Iraq from Kuwait in 1991, by a U.N. mandated force,
comprising twenty-nine countries, but led militarily by the United States, was legal. The Security
Council itself does not have an armed force, but the Charter calls upon member States to make
available to the Council military forces for use as directed by it32.
A crucial aspect of the privileged and responsible position assigned, in the Charter, to the
Permanent Members of the Security Council, is the veto power. Each of them has the power to
block any substantive decision of the Council33. The Security Council established in San
Francisco was to be made up of eleven members five permanent and six elected. The Five
Permanent members were the United States, the United Kingdom, France, the Republic of China,
and the Union of Soviet Socialist Republics.
These were the so-called victor powers of World War II. The elected members would
serve on the Council for a term of two years. In 1965, the Charter was amended to expand the
number of elected members of the Council to ten. The Permanent Five were given their
permanency, and the extraordinary power of the veto, because they were able to argue
31
Document 936, III/1/45, June 12, 1945 (also found in Summary Report of Eighteenth Meeting of
Committee III/1, Document 936 III/1/45, compiled in Documents of the United Nations Conference on
International Organization, San Francisco, 1945, Vol. XI, at 474).
32
S.C. Res. 64/28, U.N. Doc. S/RES/1887 (Sept. 24, 2009)
33
C.Breen, The Necessity of a Role for the ECOSOC in the Maintenance of International Peace and
Security, Journal of Conflict and Security Law 12 (2007), 261 et seq.
17
successfully against strenuous opposition, that unless these powers were given to them, there
would be no new Organization34.
The representative of the United States, at San Francisco, stated that, the great powers
could preserve the peace of the world if united.they could not do so if dissention were sowed
among them35. The great powers had every reason to exercise the requirement of unanimity for
high and noble purposes, because they would not want again to expend millions in wealth and
lives in another war.
He warned that killing the veto would kill the Charter. The representative of the Soviet
Union said, the agreement on a joint interpretation [that is of the veto power] would facilitate
the creation of a truly effective and efficient international organization for the maintenance of
peace. The arguments of the Permanent Five prevailed and the United Nations was born in the
curious form already described. The U.N. is a community of equals, but within which, without
doing too much violence to George Orwell, there clearly were Five who were vastly more equal
than their equals36.
In the first instance, the Permanent Five members of the Security Council have at their
disposal, imbedded in the Charter, four vetoes, not one. The veto that I have been mainly
addressing, so far, is that over the adoption by the Security Council of any substantive and
binding decisions pursuant to Article 25. This is the first of the Security Councils vetoes. The
others include a veto over the recommendation to the General Assembly of a person to be
34
H.Nasu, Operationalizing the Responsibility to Protect and Conflict Prevention: Dilemmas of Civilian
Protection in Armed Conflict, Journal of Conflict & Security Law 14 (2009), 209 et seq.
35
R.G. Teitel, Humanitys Law: Rule of Law for the New Global Politics, Cornell Intl L.J. 35 (2002),
355 et seq. (387).
36
J. Quigley, The United Nations Security Council: Promethean Protector or Helpless
18
appointed Secretary General of the U.N.; 16 a veto over applications for membership of the
U.N., 17 and possibly, and perhaps crucially, a veto over any amendment to the Charter.
Accordingly, any attempt to alter their positions and powers must, itself, be agreed to by
all of the Five Permanent members. There are a few other aspects of the veto power, within the
Security Council, which are worth brief mention. In addition to the open or clearly visible veto,
that is the rejection of a substantive proposal in the Security Council, there has been what has
been known as the double veto. The double veto arises in the context of a possible difference
of opinion within the Council on whether or not a proposed decision is of a procedural or
substantive character. The procedural decision, at least in theory and according to the Charter,
requires a simple majority. If the President of the Security Council makes a ruling on such a
matter, to which there is then a challenge, he is obliged to put this immediately to a decision by a
vote of the Council. In this context, it has become accepted that Permanent Members can
exercise a veto. That is, if any one of them disagrees with the vote then taken in the Council on
whether or not a matter is procedural or substantive, the Permanent Members can veto that
outcome. Interestingly, on June 26, 1945, the Representative of Australia said of the proposed
Permanent Members that they would have a double veto. He said such a member, can say not
only I can veto the decision of the Council, but I will determine the question which I will veto.
There is also the threatened veto. It would simply be impossible to calculate how many
times the decision making process of the Security Council, in an informal, private session, has
been shaped by the threat of a veto to be cast in a formal session by one of the Permanent
Members.
Finally, the existence of permanent membership on the Security Council and the
associated veto power has had what has come to be known as the cascade effect. This
ludicrously benign term seeks to describe the very real phenomenon of the extension of effective
permanent membership rights to the Five in virtually all other U.N. agencies, Commissions, and
Committees.
At most U.N. elections it is simply considered unquestionable that those Five will
automatically be on the committee, on the Board of Governors, or on whatever instrumentality is
involved. By extension, even though there is no formal veto anywhere other than the Security
Council, the language of veto is freely spoken and threatened and very often shapes outcomes in
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such bodies. It is clear, that as a matter of history, the massive conflicts of the 20 th century
authored a mind-set, which gave assent to the notion of great victor powers that alone may be
able to provide for security in the future. It is now beyond any doubt that the great privilege
given to the Permanent Five - of course they would call it the great responsibility -- has come to
be appropriated by them as a right.
The Permanent Five have behaved and continue to behave in ways that suggest that they
see the power that they hold as rightful and free, to be exercised by them in whatever manner
they choose. The notion that this power was given to them, over strenuous objections, but for the
reason of the good that it might do in preserving the peace, has been substantially replaced by the
idea that they have a power that they can use to protect and extend their own individual national
interests. This selfish outlook is often not consistent with the purposes and principles of the
Charter. The extent to which this misinterpretation of their power some indeed have called it
abuse of their power has been applied, has varied. In some instances, the actions of the
Permanent Five have seemed minor and at other times a flagrant abuse of power.
5.0Conclusion
Generally, the Security Councils primary responsibility under the UN Charter is the
maintenance of peace and security. This responsibility however, is not exclusive, since the
General Assembly also has powers of discussion and recommendations on the matter and the UN
Charter also envisages collective actions can be taken under regional arrangements.
The Security Council has the necessary powers to discharge the functions such as the
pacific settlement of international disputes, the preventive or enforcement actions to maintain
peace and security, to control and supervision of trust territories, admission, suspension and
expulsion of members and election, in conjunction with the General Assembly, of the fifteen
judges of the International Court of Justice.37
37
Tunku Sofiah Jewa, Public International Law: A Malaysian Perspective, Second Edition, Volum II, Pacifica
Publications (2012).
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When a dispute leads to fighting, the Councils first concern is to bring it to an end as soon as
possible. A member Member State against which preventive or enforcement action has been
taken by the Security Council may be suspended from the exercise of the rights and privileges of
membership by the General Assembly on the recommendation of the Security Council. A
Member State which has persistently violated the principles of the Charter may be expelled from
the United Nations by the Assembly on the Councils recommendation.38
Aside from that, a State which is a Member of the United Nations but not of the Security Council
may participate, without a vote, in its discussions when the Council considers that that countrys
interests are affected. Both Members of the United Nations and non-members, if they are parties
to a dispute being considered by the Council, are invited to take part, without a vote, in the
Councils discussion and that the Council will set the conditions for participation by a nonmember state.
Historically speaking, the council has been much more effective at easing relations
between the big powers who sit on the council than it has assertively maintaining international
peace and security. And you can see in the last 10 or 20 years, the council has launched all these
peacekeeping missions, it's slapped sanctions on a bunch of countries, and a lot of these efforts
have been not complete failures but have been very deficient.39
The fact that the permanent veto members can easily overthrow and settlements of resolution
brought forwards as well as the power given to the permanent council as stated in Article 25 is
too big and that exposed to an abuse of powers require improvement to ensure justice and
balance. It is suggested that amendments to be made on the UN Charter specifically on the part
of Security Council so that it can still be affective in accordance with the objectives in this
modern world. Apart from that, the amendments must be made so that every Member or non38
Ibid.
39
Jessica Rettig, Why the UN Security Council Is Still Important, U.S News &World Report, (October 2009),
http://www.usnews.com/opinion/articles/2009/10/09/why-the-un-security-council-is-still-important(14 May 2016).
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member state are exposed to their enjoyment of rights without having any disputes with one
another.
