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The Legitimacy of the Collective Authority of the Security Council

Published online by Cambridge University Press:  27 February 2017

David D. Caron
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The ideal, once it is embodied in an institution, ceases to be an ideal and becomes the expression of a selfish interest, which must be destroyed in the name of a new ideal. This constant interaction of irreconcilable forces is the stuff of politics. Every political situation contains mutually incompatible elements of utopia and reality, of morality and power.

E. H. Carr

[T]he crucial question is not what principle is acknowledged but who is accepted as the authoritative interpreter of the principle or, to put it in institutional terms, how the process of legitimization works.

Inis Claude, Jr.

At this pivotal point in history, a fundamental and oft-raised issue is “international governance.” Means of effective governance are seen as necessary to more complex arrangements of world order. But achieving effective governance ultimately will mean the existence of institutions that legislate, that is, institutions that make decisions binding on the whole. As a general matter, states have been skeptical of, if not hostile toward and consequently unwilling to accept, such governance. The United Nations Security Council is a notable exception; in the sometimes broad, sometimes narrow, area of international peace and security, the Security Council has taken decisions in the name of, and binding upon, the entire international community.

Type
Research Article
Information
American Journal of International Law , Volume 87 , Issue 4 , October 1993 , pp. 552 - 588
Copyright
Copyright © American Society of International Law 1993

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References

1 Edward Hallett Carr, The Twenty Years’ Crisis: 1919–1939, at 94 (2d ed. 1945).

2 Inis Claude, Jr., Collective Legitimization as a Political Function of the United Nations, 20 Int’l Org. 367, 369–70 (1966).

3 Article 39(1) of the Charter provides that the trigger for action under Articles 41 and 42 shall be the determination by the Council of “the existence of any threat to the peace, breach of the peace or act of aggression.” On the meaning of “threat to the peace,” see Leland Goodrich, Edvard Hambro & Anne Patricia Simons, Charter of the United Nations: Commentary and Documents 295–97 (3d rev. ed. 1969).

For examples of a recent trend to interpret “threat to the peace” more broadly than previously, see SC Res. 688 (Apr. 5, 1991), reprinted in 30 ILM 858 (1991) (determining that Iraqi actions in the Kurdish areas of Iraq were a threat to regional peace and security); and SC Res. 794 (Dec. 3, 1992) (determining that the “magnitude of the human tragedy caused by the conflict in Somalia” constituted a threat to international peace and security).

A particularly interesting recent issue involves the competence of the Security Council to establish, by binding decision, an ad hoc criminal court. See Letter from the Permanent Representative of France to the Secretary-General, UN Doc. S/25266 (1993). “[T]he establishment of a [ad hoc] Tribunal would be an appropriate measure if … it seems likely to attain or facilitate the objective of restoring international peace and security.” Id. at 13. The Council ultimately established an ad hoc tribunal in Resolution 827 (May 25, 1993).

4 SC Res. 678, para. 2 (Nov. 29, 1990), reprinted in 29 ILM 1565 (1990).

5 In response to the destruction of Pan Am Flight 103 and UTA Flight 772, the Security Council unanimously passed Resolution 731, inter alia, urging the Libyan Government to comply with requests for the surrender of the bombing suspects for trial in the United States or the United King dom, the disclosure of all relevant information and the payment of appropriate compensation. SC Res. 731 (Jan. 21, 1992), reprinted in 31 ILM 732 (1992). When Libya failed to comply, the Security Council, acting under chapter VII, passed by a vote of 10 for, 0 against and 5 abstentions (Cape Verde, China, India, Morocco, Zimbabwe), Resolution 748 imposing diplomatic and economic sanctions upon Libya if Libya failed to comply with the demands in Resolution 731 and to take concrete steps toward ceasing all terrorist actions by April 15, 1992. SC Res. 748 (Mar. 31, 1992), reprinted in 31 ILM at 750.

6 In response to the violence in Bosnia and Hercegovina, the Security Council adopted Resolution 752 (May 15, 1992), reprinted in 31 ILM at 1451, setting forth various demands aimed at ending the fighting. On May 30, 1992, the Security Council, acting under chapter VII, passed by 13 votes for, 0 against and 2 abstentions (China, Zimbabwe), Resolution 757, reprinted in 31 ILM at 1453, imposing economic and diplomatic sanctions against the Federal Republic of Yugoslavia (Serbia and Montenegro) until such time as the Council found that Serbia and Montenegro had complied with Resolution 752. These sanctions were expanded upon in several Security Council resolutions over the next year.

7 For recent UN actions, see Howard French, U.N. Approves Ban on Shipments of Oil to Haitian Military, N.Y. Times, June 17, 1993, at A1; and Paul Lewis, U.N. Council Plans to Order Full Ban on Oil for Haiti, N.Y. Times, June 10, 1993, at A1.

Earlier, the Organization of American States had authorized more limited sanctions against Haiti. On September 30, 1991, the OAS Permanent Council, established only recently under Resolution AG/RES.1080 (XXI–0/91) and acting pursuant to its authority under Article 64 of the OAS Charter, as amended by the Protocol of Cartagena de Indias in 1985 (Doc. OEA/Ser.A/41), convened an ad hoc Meeting of Consultation of Ministers of Foreign Affairs. That body, without veto, adopted by consensus Resolutions MRE/RES.1/91 and MRE/RES.2/91 on October 3 and 8, 1991, respectively. Those resolutions are nonbinding appeals by the regional body for its 34 members and other governments to halt all commercial and financial transactions with Haiti until President Jean-Bertrand Aristide is restored to office.

8 I gain the impression from individuals involved with the Security Council that the cutting edge of their concerns about the Council is shifting. Two years ago, even one year ago, the concern of a substantial group of states was, as noted in the text, the legitimacy of the Council’s use of its authority. Against the background of the difficult situations in Serbia, Somalia and Cambodia and the hard task of finding resources to match both rhetoric and aspiration, the concern of many now is with the reality of the Council’s “power.” See, e.g., Paul Lewis, U.N. is in Arrears on Peace Efforts: Increased Costs Raise Doubts About Ability to Finance Its Future Operations, N.Y. Times, May 16, 1993, §1, at 9; Richard Bernstein, Sniping is Growing at U.N.’s Weakness as a Peacekeeper, N.Y. Times, June 21, 1993, at A1; The United Nations: Heart of gold, limbs of clay, Economist, June 12, 1993, at 21. If the United States does not assume the burden of making real the orders of the Council, as in the case of Iraq’s invasion of Kuwait, is the Council revealed as a paper tiger mostly roaring condemnations and occasionally establishing regimes of economic sanctions of questionable efficacy? “There isn’t any concert of powers out there to join. If there is to be collective action, it will happen only if the U.S. not only participates, but plays a leading constructive role.” Jeane Kirkpatrick, Facing a World Without Threats, New Perspectives Q., Summer 1992, at 10, 12. See also Michael Gordon, New Strength for U.N. Peacekeepers: U.S. Might, N.Y. Times, June 13, 1993, §1, at 11. Although serious indeed, this more recent concern about power does not moot the earlier concern about legitimacy. The more recent concern may increasingly preoccupy those on the front line, but ultimately we will need to address the first.

9 Andrew Boyd, Fifteen Men on a Powder Keg: A History of the U.N. Security Council 222 (1971).

10 For example, the Colombian representative stated just prior to the adoption of Resolution 665, the resolution authorizing the use of maritime forces to implement provisions of the economic sanctions against Iraq:

We are under no illusion that when the Council comes to vote on this draft resolution it will be establishing a naval blockade ….

That neither worries nor frightens us, but we wish to be candid: We feel concern … over the fact that in this draft resolution the Security Council is delegating authority without specifying to whom. Nor do we know where that authority is to be exercised or who receives it. Indeed, whoever does receive it is not accountable to anyone.

UN Doc. S/PV.2938, at 21 (1990).

Many more, and much stronger, statements can be found by persons who do not represent a government. See, e.g., Erskine Chiiders, Gulf Crisis Lessons for the UN, 23 Bull. Peace Proposals 129 (1992).

11 See, e.g., the statements of various states during the UN debate on the Agenda for Peace, infra note 16, summarized in Peter J. Fromuth, The Making of a Security Community: The United Nations After the Cold War, 46 J. Int’l Aff. 341, 363 (1993). See also Charley Reese, The U.N.: Just a Front, Oakland Trib., Dec. 15, 1992, at A13.

12 See, e.g., Badi M. Ali, White House Plays the Libya Card, N.Y. Times, May 5, 1992, at A18 (letter to the editor). The Economist expressed the general sense of these concerns, observing: “The council, exult northerners, has been reborn to keep the peace in a manner that fits with modern times. No, grumble southerners, the council is becoming a flag of convenience for old-time neo-imperialists.” Open the Club, Economist, Aug. 29, 1992, at 14.

13 Such an inquiry is currently under way in several forums, including the American Academy of Arts and Sciences, the Council on Foreign Relations and the Henry L. Stimson Center. See, e.g., Emerging Norms of Justified Intervention (Laura W. Reed & Carl Kaysen eds., 1993); W. J. Durch & B. M. Blechman, Keeping the Peace: The United Nations in the Emerging World Order (1992); and Law and Force in the New International Order (Lori F. Damrosch & David J. Scheffer eds., 1991). See also Peter Malanczuk, Humanitarian Intervention and the Legitimacy of the Use of Force (1993).

14 See, e.g., Open the Club, supra note 12, at 14 (“The council is an anachronism.”).

15 See, e.g., Yehuda Z. Blum, Russia Takes Over the Soviet Union’s Seat at the United Nations, 3 Eur. J. Int’l L. 354 (1992); Richard Gardner & Toby Trister Gati, Russia Deserves the Soviet Seat, N.Y. Times, Dec. 19, 1991, at A31; and Stefan A. Riesenfeld & Frederick Abbott, A UN Dilemma: Who Gets the Soviet Seat on the Security Council?, Christian Sci. Monitor, Oct. 4, 1991, at 19.

16 See, e.g., An Agenda for Peace, Preventive diplomacy, peacemaking and peace-keeping—Report of the Secretary-General, UN Doc. A/47/277-S/24111, para. 85 (1992), reprinted in 31 ILM 953 (1992) (“the present phase in the renewal of this Organization should be complete by 1995 …”).

17 For a related discussion, see David D. Caron, Governance and Collective Legitimation in the New World Order, Hague Y.B. Int’l L. (forthcoming).

18 For a summary listing of these circumstances, see p. 566 infra.

19 A central part of the recent international law discussion is Thomas M. Franck, The Power of Legitimacy Among Nations (1990). As to associated commentary, see, e.g., Jose E. Alvarez, The Quest for Legitimacy: An Examination of “The Power of Legitimacy Among Nations” by Thomas M. Franck, 24 N.Y.U. J. Int’l L. & Pol. 199 (1991); Dencho Georgiev, Letter to the Editor, 83 AJIL 554 (1989); and Martti Koskenniemi, Book Review, 86 AJIL 175 (1992).

See generally Ernst B. Haas, When Knowledge Is Power: Three Models of Change in International Organizations (1990); Tom Tyler, Why People Obey the Law (1990); Margherita Ciacci, Legitimacy and the Problems of Governance, in Legitimacy/Légitimité 20 (Athanasios Moulakis ed., 1986); Claude, supra note 2; Maurice Cranston, From Legitimism to Legitimacy, in Legitimacy/ Legitimite, supra, at 36; Jürgen Habermas, Legitimationsprobleme in modernen Stoat, in Zur Rekonstruktion des Historischen Materialismus (1976), translated in Jürgen Habermas, Communication and the Evolution of Society 178 (T. McCarthy trans., 1979) [hereinafter Legitimation]; Alan Hyde, The Concept of Legitimation in the Sociology of Law, 1983 Wis. L. Rev. 379; Tilo Schabert, Power, Legitimacy and Truth: Reflections on the Impossibility to Legitimise Legitimations of Political Order, in Legitimacy/Légitimité, supra, at 96; Jerome Slater, The Limits of Legitimization in International Organizations: The Organization of American States and the Dominican Crisis, 23 Int’l Org. 48 (1969); Joseph H. Weiler, Parlement européen, intégration européenne, démocratic et légitimité, in Le Parlement Europeen 325 (1988), in English in part in The Transformation of Europe, 100 Yale L.J. 2403, 2466–74 (1991) [hereinafter Transformation]. The relationship between ethics and power, a central part of the discussion of legitimacy, is examined in literature not specifically concerned with legitimacy. See, e.g., Hedley Bull, The Anarchical Society: A Study of Order in World Politics (1977); and Carr, supra note 1. Despite the rather curious statement by Koskenniemi, supra, at 175, that “legitimacy” is “a recent innovation… . Hobbes … had no use for it,” the basic questions implicit in the notion of “legitimacy” have deep roots in the literature. See, e.g., Cranston, supra (discussing conceptions of legitimacy “well before the French Revolution”).

20 This perspective parallels Habermas’s view in Legitimation, supra note 19, at 178, that “[l]egitimacy means a political order’s worthiness to be recognized.” It is, however, both very difficult and simplistic to characterize one’s task as simply to observe the phenomenon of legitimacy. In part, emphasis on understanding the social and political dynamic of legitimacy, rather than the philosophical inquiry into what forms of governance are “just,” reflects the lack of consensus on the latter and the potentially persuasive allegations implicit in the former.

An ironic consequence of this normative ambiguity is that the process by which concerns about illegitimacy are addressed may become the best substitute for consensus about what is legitimate. This observation also explains why my attempt here to provide an account of a dynamic shades into process serving as a strategy for reconciliation, which perhaps could lead to consensus at least as to what is illegitimate. See, e.g., Haas, supra note 19, at 193 (“Moral progress, if it is to be attained by means associated with international organizations, must be defined in procedural terms.”).

21 In an approach focusing on the social phenomenon of legitimacy, “[t]he legitimacy of an order of domination is measured against the belief in its legitimacy on the part of those subject to the domination.” Habermas, Legitimation, supra note 19, at 199. For Haas, supra note 19, at 87, legitimacy similarly, but perhaps with more calculation by those accepting it, “exists when the membership values the organization and generally implements collective decisions because they are seen to serve the members’ values.”

22 In this sense, statements voicing mistrust or suspicion of the motives of the permanent members of the Council represent related manifestations of negative assessments of the Council.

23 Both Franck’s and Haas’s comments on legitimacy, as indeed my own, are based on a theoretical, nonempirical inquiry. None of us, except on rare occasions, ask states or persons independent of states whether they view an international organization as legitimate or not, why they do so, and whether and how such a perception may influence their future relation with the organization. Professor Tyler’s Why People Obey the Law is of particular interest to the present inquiry because it is based on empirical research, the questioning of 1,575 citizens in the Chicago area. To the surprise of the domestic realists who tend to speak in terms of greater and more certain punishment as the prime determinant of compliance, Professor Tyler concludes:

People obey the law because they believe that it is proper to do so, they react to their experiences by evaluating their justice or injustice, and in evaluating the justice of their experiences they consider factors unrelated to outcome, such as whether they have had a chance to state their case and been treated with dignity and respect.

Tyler, supra note 19, at 178. Some of Tyler’s conclusions arguably stem from human psychology generally, and others—perhaps most—seem deeply rooted in the social values of the study group. Thus, among the lessons to take from his work are the importance of the empirical approach and the conclusion that the perception of legitimacy was influenced significantly by whether there was procedural justice.

24 Broadly speaking, a perception of illegitimacy might be said to affect the effectiveness of an institution in two ways. First, it might undercut the perceived legitimacy of the rules that emanate from the institution. Second, it might threaten the future effectiveness of the institution. Thus, the perceived legitimacy of the Security Council may influence both the willingness of states to obey and support particular decisions of the Council and its future use generally. This is particularly so when, as in the case of the Council, the organizational agenda itself is controlled primarily by the members and their disposition toward the setting of that agenda may be greatly affected by their perception of the legitimacy of the organization.

25 Haas, supra note 19, at 87. For a critical view of the practical significance of legitimacy, see generally Hyde, supra note 19.

26 As to the last possibility, it is worth recalling Claude’s observation, supra note 2, at 368, that “[p]olitics is not merely a struggle for power but also a contest over legitimacy, a competition in which the conferment or denial, the confirmation or revocation, of legitimacy is an important stake.” Over what alternatives, then, is there a “contest” in the case of the Security Council? One might conclude that if there is no viable alternative, an allegation of illegitimacy cannot be of much practical significance. See Habermas, Legitimation, supra note 19, at 178–79. But the lack of alternatives also may mean that the contest regarding legitimacy involves higher stakes for the organization involved and the issues before it. With no alternate route to promote, the contest ultimately may reduce to the rejection of contemplated action or pressure for reforms by the dissatisfied, not because they have an alternate order to propose, but because they simply desire to move away from the status quo. For their part, states now working through the Council, such as the United States and the United Kingdom, in turn may view the refusal of an ineffective Council as not being legitimate and, as a consequence, may return to the unilateral imposition of force or sanctions upon the allegedly offending state. See, e.g., Peter Wilenski, Reforming the United Nations for the Post–Cold War Era, in Whose New World Order: What Role for the United Nations? 122, 126 (Mara R. Bustelo & Philip Alston eds., 1991). In both reactions—inaction at the multilateral level or action at the unilateral level—community objectives and tools are lost.

27 A difficult aspect of the perception of illegitimacy is the difference in “sophistication” of the different actors. On the one hand, officials with foreign ministries close to and involved with the Council might be thought to be the most sophisticated and tactical. That is, it might be thought that they would accept that the structure and operation of the Council is a matter of power, and indeed it is in that light that they quite consciously would frame their objections to such structure and operation in the language of legitimacy. But at whom is this initiative targeted? If this image of calculating actors is correct, then would not other actors close to the Council see through this ploy or simply discount it? Inasmuch as a substantial part of the critique of the Council turns on domination by the Permanent Five, and alludes to the closed nature of their deliberations and their imperialist pasts, perhaps the answer in the case of the Council, as in most cases, is that even the government representatives are a mix of the insider and the outsider simultaneously both discounting the language of legitimacy and being drawn to the values implicit in such phrasing.

28 These questions form the core of the inquiry by Franck, supra note 19, which focuses on the legitimacy of rules. Interestingly, the inquiry appears to change slightly if one’s focus is not on increasing the legitimacy of a rule, but rather on countering or anticipating an allegation of illegitimacy. Professor Franck’s search for indicators of legitimacy is presumably motivated by a desire to increase the pull toward compliance of rules. However, because an allegation of illegitimacy may be merely a means to oppose an institution or rule, the dominant order does not seek so much to strengthen the pull toward compliance as to preserve the quantum of “belief” it already has.

29 Weiler, Transformation, supra note 19, at 2468–69. “The notion of formal legitimacy … implies that all requirements of the law are observed …. ‘Social legitimacy,’ on the other hand, connotes a broad, empirically determined societal acceptance of the system.” Id.

30 See Claude, supra note 2, at 368–69 (“Lawyers tend simply to translate legitimacy as legality…. [But] the legitimacy of the positive law … is sometimes the precise issue at stake in a political controversy.”).

31 Although it often can be heard that the United Nations is only a collection of governments, a statement of the majority of the United Nations is for some reason taken as more than a statement of that same majority operating outside the United Nations. Turning that around, we seem to expect the United Nations to act differently than the same nations acting separately. We expect the United Nations, and other organizations of a universal character, to act consistently with the aura we give it.

For example, when the contributors to the International Monetary Fund require that borrowers undertake austerity measures before new loans are made, there is for some a concern regarding the legitimacy of the organization. On the other hand, if such conditions are requested in direct negotiations between one lender and one borrower, then that situation seems subject to at least a different legitimacy critique. The critique used for the international organization seems less applicable in the bilateral case because the power of the lender has not been clothed with the symbols of authority; there is no or little pretense of legitimacy to critique. In the bilateral case, we do not critique the cloak of legitimacy, but rather the motives of power.

32 Open the Club, supra note 12, at 14.

33 In particular, there is a promise of good faith and honest dealings with one another and in joint undertakings. As Leland Goodrich wrote:

[T]here is perhaps an excessive tendency today to view the United Nations simply as a set of organs and procedures made available to its Members in much the same way that various mechanical gadgets are offered to the public as means of making life easier…. Of much greater importance than the machinery itself are the basic commitments of Members, the purposes to which the machinery is put, and the spirit which governs its use.

Leland Goodrich, Korea: A Study of U.S. Policy in the United Nations 2 (1956).

34 For Professor Haas, supra note 19, at 87, “authority consists of the ability of the organization to have its decisions implemented irrespective of the goodwill of the members concerned.” Professor Weston asserts that Franck’s notion of legitimacy “appears to be close to, if not identical with, the meaning of ‘authority’ as defined by Professors McDougal and Lasswell.” Burns H. Weston, Security Council Resolution 678 and Persian Gulf Decision Making: Precarious Legitimacy, 85 AJIL 516, 516 n.1 (1991) (citing Myres S. McDougal & Harold Lasswell, The Identification and Appraisal of Diverse Systems of Public Order, 53 AJIL 1, 9 (1959)). The many different ways in which these terms are employed in scholarly writings need be approached with care. Professors Haas and Franck apparently agree that “authority” signifies the ability of the organization to coerce compliance, while “legitimacy” is evidenced at least in part by the willingness of those governed to comply or, I would assume, by the willingness of those governed to coerce compliance by their peers.

35 See W. Michael Reisman, The Constitutional Crisis in the United Nations, 87 AJIL 83 (1993). But see Thomas M. Franck, The “Powers of Appreciation”: Who Is the Ultimate Guardian of UN Legality?, 86 AJIL 519 (1992); and Geoffrey R. Watson, Constitutionalism, Judicial Review, and the World Court, 34 Harv. Int’l L.J. 1 (1993).

36 Accord Claude, supra note 2, at 369–70.

37 “America, Britain and France dominate decision-making; Russia is out of things and China intent on its own affairs.” Open the Club, supra note 12, at 14.

38 Childers, supra note 10, at 133 (“No longer is it morally possible for democratic people to accept that 5 out of 165 member governments can have such deadly power in the name of a peace-dedicated world organization.”).

39 Ali, supra note 12.

40 Andrew F. Cooper, Richard A. Higgott & Kim R. Nossal, Bound to Follow? Leadership and Fellowship in the Gulf Conflict, 106 Pol. Sci. Q. 391, 407 (1991).

41 Weston, supra note 34, at 525.

42 Id. at 523–25. His list includes the promise of financial help to Colombia, Côte d’Ivoire, Ethiopia and Zaire; agreement with the Soviet Union “to help keep Estonia, Latvia, and Lithuania out of the November 1990 Paris summit conference”; a pledge to the Soviet Union to persuade Kuwait and Saudi Arabia to provide it with desperately needed hard currency; and, to secure Chinese abstention in the Council, agreement to lift trade sanctions in place since the Tiananmen Square massacre and to support a World Bank loan of $114.3 million to China. Finally, Weston cites the report that, as a result of Yemen’s negative vote on Resolution 678, the United States said it would cut off its $70 million in annual aid to that state.

43 See Reisman, supra note 35. See also Loie Feuerle, Note, Informal Consultation: A Mechanism in Security Council Decision-Making, 18 N.Y.U. J. Int’l L. & Pol. 267 (1985).

44 See, e.g., Paul Lewis, U.N., With Abstention by Russia, Tightens Its Sanctions on Belgrade, N.Y. Times, Apr. 18, 1993, §1, at 1 (referring to the important role of Venezuela, Cape Verde, Morocco, Djibouti and Pakistan). However, in the case of the former Yugoslavia, the nonpermanent members not only had more time to develop their position, but also had greater room to maneuver since the permanent members were reluctant to take forceful action against Serbia.

45 But the role of the Secretary-General is certainly evolving in a more active direction. See the range of discussion and proposals in The Challenging Role of the UN Secretary-General: Making “The Most Impossible Job in the World” Possible (Benjamin Rivlin & Leon Gordenker eds., 1993).

46 Another argument raised is that, inasmuch as the Council has more work to do, it should have more members. To the contrary, more members might only generate more work in terms of coordination, and more work seems to suggest a need for an increase in staff rather than membership.

47 It is of course a simplification to say there was no governance or no concern with double standards prior to the recent activity of the Council. Previously, the charge of a double standard generally involved the willingness of UN members to criticize the West and Israel, but not socialist or other Third World states. See Thomas M. Franck, Of Gnats and Camels: Is There a Double Standard at the United Nations?, 78 AJIL 811 (1984); Theo van Boven, Letter to the Editor, 79 AJIL 714 (1985).

48 See, e.g., Youssef M. Ibrahim, Many Arabs See “Double Standard,” N.Y. Times, Jan. 15, 1993, at A8; Clyde Haberman, And Even Some Israelis Agree With Them, id. See also Childers, supra note 10, at 136 (“[I]t has been the blatant use of double standards in the invocation of UN principles against Iraq that has so eroded the confidence of the Southern majority of humankind in the world organization.”). A more diplomatic and positive phrasing of the question can be found in the statement of the Colombian representative before the Council as Resolution 678 authorizing the use of force against Iraq was adopted: “We hope that this climate of understanding will be maintained and will serve as a basis for the decisions that the Security Council may have to take in the future so as not to have its credibility and effectiveness tarnished through use of a double standard … .” UN Doc. S/PV.2963, at 38 (1990).

49 This objective is evident in the language and drafting history of the UN Charter. See, e.g., UN Charter Art. 24 (“primary responsibility for the maintenance of international peace and security, and … carrying out its duties [on behalf of the members]”).

50 Carr, text at and note 1 supra.

51 Dwight E. Lee, The Genesis of the Veto, 1 Int’l Org. 33, 35 (1947).

52 Id.

53 Left unresolved at Dumbarton Oaks and preventing agreement generally on voting at that time was whether a member, particularly a permanent member, of the Council could vote when it was a party to the dispute under consideration. The recent experience of the League of Nations, particularly the vote of Italy blocking action against it under Article 11 of the Covenant, loomed large. In February 1945 at Yalta, a compromise formula was agreed upon by the United States, the United Kingdom and the Soviet Union: a member of the Council that was a party to the dispute under consideration would abstain from voting in efforts at peaceful settlement (what came to fall under chapter VI of the Charter) or efforts to encourage such settlement by regional arrangements or agencies (Article 52(3) of the Charter). This meant, however, that the member need not abstain from voting when stronger measures aimed at peace enforcement were contemplated (what came to be governed by chapter VII of the Charter).

54 The fight during the negotiations, however, did yield the oft-cited and much-debated Statement by the Delegations of the Four Sponsoring Governments on Voting Procedure in the Security Council, explaining their understanding of the Yalta formula. See, e.g., Leo Gross, Double Veto and the Four-Power Statement on Voting in the Security Council, 67 Harv. L. Rev. 251 (1953).

55 Although Sydney Bailey asserts that “the United Nations has been hamstrung by the veto neither as frequently nor as decisively as has sometimes been suggested.” Sydney Bailey, Voting in the Security Council 62 (1969).

56 See Alexander W. Rudzinski, The So-Called Double Veto, 45 AJIL 443 (1951); Marion K. Kellogg, The Laos Question: Double What Veto?, 45 Va. L. Rev. 1352 (1959); Leo Gross, Question of Laos and the Double Veto in the Security Council, 54 AJIL 118 (1960) (Editorial Comment); Alan R. Feldstein, Comment, The Double Veto in the Security Council: A New Approach, 18 Buff. L. Rev. 550 (1968–69); and Franciszek Przetacznik, The Double Veto of the Security Council of the United Nations: A New Appraisal, 58 Revue de Droit International de Sciences Diplomatiques, Politiques et Sociales 153 (1980).

57 See Yuen-li Liang, Abstention and Absence of a Permanent Member in Relation to the Voting Procedure in the Security Council, 44 AJIL 694 (1950); Myres S. McDougal & Richard Gardner, The Veto and the Charter: An Interpretation for Survival, 60 Yale L.J. 258 (1951); Leo Gross, Voting in the Security Council: Abstention from Voting and Absence from Meetings, id. at 209; Constantin A. Stavropoulos, The Practice of Voluntary Abstentions by Permanent Members of the Security Council Under Article 27(3), 61 AJIL 737 (1967); Sydney Bailey, New Light on Abstentions in the UN Security Council, 50 Int’l Aff. 554 (1974); and Charles G. Nelson, Revisionism and the Security Council Veto, 28 Int’l Org. 539 (1974).

58 See Francis O. Wilcox & Carl M. Marcy, Proposals for Changes in the United Nations 317–19 (1955); Bailey, supra note 55, at 48–52, 112–35.

59 See, e.g., Anjali V. Patil, The UN Veto in World Affairs 1946–1990 (1992); James E. Todd, An Analysis of Security Council Voting Behavior, 22 W. Pol. Q. 61 (1969); and Robert S. Junn & Tong-Whan Park, Calculus for Voting Power in the UN Security Council, 58 Soc. Sci. Q. 104 (1977).

60 See, e.g., Egon Schwelb, Amendments to Articles 23, 27 and 61 of the Charter of the United Nations, 59 AJIL 834 (1965); idem., The 1963–1965 Amendments to the Charter of the United Nations: An Addendum, 60 AJIL 371 (1966); idem., The Amending Procedure of Constitutions of International Organizations, 31 Brit. Y.B. Int’l L. 89 (1954); idem., Charter Review and Charter Amendment: Recent Developments, 7 Int’l & Comp. L.Q. 303 (1958); idem., The Question of a Time Limit for the Ratification of Amendments to the Charter of the United Nations, 4 Int’l & Comp. L.Q. 475 (1955); Emile Giraud, La Revision de la Charte des Nations Unies, 90 Recueil des Cours 311 (1956 II); Jyrki Kivisto, Amendments to the Charter of the United Nations (1968) (unpublished LL.M. thesis, University of California at Berkeley).

61 Sydney Bailey, The Security Council, in The United Nations and Human Rights 304, 324 (Philip Alston ed., 1992).

62 Ernst Haas, Will the New UN Lead Us to a New World Order?, lecture delivered at the Institute of International Studies, University of California at Berkeley (Nov. 2, 1992).

63 Article 108 of the Charter provides:

Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council. (Emphasis added)

To the same effect, see UN Charter Art. 109(2).

64 See Goodrich, Hambro & Simons, supra note 3, at 638–39.

65 David Binder, Bush Warns Serbs Not to Widen War, N.Y. Times, Dec. 28, 1992, at A6; see also Elaine Sciolino, Aides Give Clinton Bosnia Peace Plan, N.Y. Times, Feb. 9, 1993, at A14 (reiteration by Clinton administration of warning to Serbia by Bush administration). This warning, however, although forceful, is not without ambiguity as to whether UN authorization for such a use of force would be sought. See also Douglas Jehl, U.S. Turns Bosnia Threat Into a Near Ultimatum, N.Y. Times, Aug. 4, 1993, at A1.

66 French, supra note 7. Such authorization was also of concern in the case of Southern Rhodesian sanctions. See Vera Gowlland-Debbas, Commentary on the Report on the Use of Economic Sanctions by the UN Security Council (presented at the Second Verzijl Symposium, Feb. 19, 1993).

67 Paragraph 3 of SC Res. 678, supra note 14, “[r]equest[ed] all States to provide appropriate support for the actions undertaken in pursuance of paragraph 2.” Officials involved with Operations Desert Shield and Desert Storm indicated to the author that this provision was helpful in gaining rights of overflight and permission for landing and refueling of aircraft.

68 See Paul Lewis, U.S. Seeks Tougher Sanctions on Yugoslavia, N.Y. Times, Apr. 7, 1993, at A6; Paul Lewis, Security Council Delays Action Against Serbs, N.Y. Times, Apr. 13, 1993, at A8; Elaine Sciolino, U.S. Agrees to Delay in Voting on Serbia Sanctions, N.Y. Times, Apr. 13, 1993, at A9; Paul Lewis, Russians Resisting Tighter Sanctions Against Belgrade: May Thwart Vote at U.N., N.Y. Times, Apr. 9, 1993, at A1; Paul Lewis, Russia Seeks to Delay Vote on Belgrade Sanctions, N.Y. Times, Apr. 12, 1993, at A8; Michael Gordon, Russia Declines to Support Tighter Sanctions on Serbia, N.Y. Times, Apr. 18, 1993, §1, at 8.

69 See Nicholas D. Kristof, China Opposes Sanctions in North Korea Dispute, N.Y. Times, Mar. 24, 1993, at A8; and Nicholas D. Kristof, China and North Korea: Not-So-Best Friends, N.Y. Times, Apr. 11, 1993, §4, at 4.

70 Francis X. Clines, At Site of “Iron Curtain” Speech, Gorbachev Buries the Cold War, N.Y. Times, May 7, 1992, at A1.

71 Paul Lewis, U.S. Backs Council Seats for Bonn and Tokyo, N.Y. Times, Jan. 30, 1993, at 4.

72 Paul Lewis, U.S. to Push Germany and Japan for U.N. Council, N.Y. Times, June 13, 1993, §1, at 7.

73 See, e.g., Martín C. Ortega Carcelén, La Reforma de la Carta de Naciones Unidas: Algunas Propuestas Institucionales, 43 Revista Española de Derecho Internacional 389, 400 (1991) (recommending the addition of India, Germany and Japan).

74 As Australia’s Permanent Representative to the United Nations wrote:

[D]uring the 1979 General Assembly India proposed that the non-permanent members be expanded from ten to fourteen, with the four extra to come from the African Group (up from two to five), and the Asian and Latin American Groups (both up by one to three). All the Permanent Five except China were opposed to any expansion.

Wilenski, supra note 26, at 126.

75 Lewis, supra note 72.

76 At the Dumbarton Oaks Conference in 1945, the memory of the inability of the League of Nations to act decisively against Italy impressed upon the delegates that the Council must be small enough as not to be unwieldy and that the requirement of unanimity—even in such a small group—would likely render the Council ineffective. As to the drafting history of the membership and voting structure of the Security Council, see Francis O. Wilcox, The Rule of Unanimity in the Security Council, 40 ASIL Proc. 51 (1946); James B. Reston, Votes and Vetoes, 25 Foreign Aff. 13 (1946); B. A. Wortley, The Veto and the Security Provisions of the Charter, 23 Brit. Y.B. Int’l L. 95 (1946); Hans Kelsen, Organization and Procedure of the Security Council of the United Nations, 59 Harv. L. Rev. 1087 (1946); Yuen-li Liang, The Settlement of Disputes in the Security Council: The Yalta Voting Formula, 24 Brit. Y.B. Int’l L. 330 (1947); and Lee, supra note 51.

77 UN Charter Art. 23(1).

78 As to the amendment, see Leo Gross, Voting in the Security Council: Abstention in the Post-1965 Amendment Phase and Its Impact on Article 25 of the Charter, 62 AJIL 315 (1968).

79 See Davidson Nichol, The United Nations Security Council: Towards Greater Effectiveness 16–17 (1982).

80 Carr, supra note 1, at 29.

81 Wilenski, supra note 26, at 127.

82 Reisman, supra note 35, at 96.

83 Brian Urquhart, Remarks, 87 ASIL Proc. (1993) (forthcoming). See also Rochelle Stanfield, Worldly Visions, Nat’l J., Oct. 27, 1990, at 2597, 2600 (reporting many experts to believe the Council would be rendered unwieldy).

84 UN Charter Arts. 17(1), 18(2).

85 As to the meaning of consensus in this context, see Erik Suy, Consensus, in [Installment] 7 Encyclopedia of Public International Law 49 (1984).

86 See Yuli Ismartono, Cambodia: Continued Factional Rivalry Impedes Peacekeeping Mission, InterPress Service (Apr. 15, 1992), available in LEXIS, Nexis Library.

87 Childers, supra note 10, at 134.

88 Ortega Carcelen, supra note 73, at 400–02.

89 See, e.g., Ramesh Thakur, The United Nations in a Changing World, 24 Security Dialogue 7, 13 (1993).

90 The Secretary-General under Article 12(2) of the Charter currently needs the consent of the Council to so notify the Assembly. See Childers, supra note 10, at 134; see also Reisman, supra note 35, at 98.

91 Reisman, supra note 35, at 98–99.

92 A brief reference to this use of the veto can be found in Richard Gardner, Practical Internationalism: The United States and Collective Security, SAIS Rev., Summer-Fall 1992, at 35, 43.

93 SC Res. 678, supra note 4, para. 2.

94 See, e.g., Excerpts From the Statement By Gorbachev on Gulf War, N.Y. Times, Feb. 10, 1991, §1, at 12; New Peace Plan at U.N., N.Y. Times, Feb. 15, 1991, at A6.

95 Paul Lewis, U.S. and Britain Assert U.N. Power: They Say They Can Continue Sanctions and the War, N.Y. Times, Feb. 22, 1991, at A4.

96 The UK position was particularly troubling to some states because none of the Security Council’s resolutions call for the removal of President Hussein. In his letter of May 13, 1991, to the President of the Security Council, the Iraqi Minister for Foreign Affairs used Major’s statement to invoke the underlying question of the legitimacy of a Council arrangement that could allow Britain to take such an action:

Does this not mean that the United Kingdom, as a permanent member of the Security Council, seems fully prepared to violate its obligations and responsibilities under the Charter and do so in a premeditated way, without any valid legal reason and in blatant contradiction to those responsibilities?

….

We warn against this dangerous precedent in international relations, which, if sanctioned, will destroy the entire basis on which the Charter of the United Nations rests ….

UN Doc. S/22591, at 2–3 (1991).

The United States maintained a similar view on removing President Hussein, although both Britain and the Clinton administration in 1993 backed off from this position. Paul Lewis, U.S. and Britain Softening Emphasis on Ousting Iraqi, N.Y. Times, Mar. 30, 1993, at A3:

Both President George Bush and Prime Minister John Major had said on several occasions that the sanctions must remain until President Hussein has been toppled ….

Their insistence … has become increasingly unpopular with other Arab countries because it clearly exceeds the Council’s decisions ….

Neither the United States nor Britain mentioned this condition today when the Security Council reviewed the embargo.

See also Elaine Sciolino, Clinton to Scale Down Program to Oust Iraqi Leader, N.Y. Times, Apr. 11, 1993, §1, at 3.

97 Between 1963 and 1980, the Security Council met 128 times on the Southern Rhodesian problem. Bailey, supra note 61, at 308. See generally Vera Gowlland-Debbas, Collective Responses to Illegal Acts in International Law: United Nations Action in the Question of Southern Rhodesia (1990); Patil, supra note 59, at 170–89; Harry R. Stack, Sanctions: The Case of Rhodesia (1978).

98 SC Res. 216, UN SCOR, 20th Sess., Res. & Dec, at 8, UN Doc. S/INF/20/Rev.1 (1965).

99 Acting under chapter VII of the Charter, the Council decided that “all States Members of the United Nations shall prevent” the import into their territories of all commodities and products originating in Southern Rhodesia, the sale or supply of any commodities or products to Southern Rhodesia, and any activity by nations that would promote the movement of such commodities. In addition, each member state was required to prevent entry into its territory of any person traveling on a Rhodesian passport and prohibit airline service to or from Southern Rhodesia. A committee on implementation was formed and the United Kingdom was asked to provide “maximum assistance.” Although further efforts to strengthen these sanctions would be made and in some cases taken, the essential system of sanctions was contained in Resolution 253, UN SCOR, 23d Sess., Res. & Dec, at 5, 6, UN Doc. S/INF/23/Rev.1 (1968).

In June 1969, a draft resolution that would have widened and strengthened the sanctions failed by a vote of 8-0-7. 1969 UN Y.B. 115. During the same period, the General Assembly passed Resolution 2508 (XXIV), UN GAOR, 24th Sess., Supp. No. 30, at 67, UN Doc. A/7630 (1969), which condemned the intervention of South Africa into Rhodesia and “[r]eaffirm[ed] its conviction that the sanctions will not put an end to the illegal racist minority régime in Southern Rhodesia unless they are comprehensive, mandatory, effectively supervised, enforced, and complied with.” Id., para. 13.

Two draft resolutions failed to be approved by the Security Council early in 1970. The United Kingdom put forward a resolution that would have prevented recognition of the newly proclaimed Rhodesian Republic. The African and Asian representatives felt this was a diversionary measure and attempted to pass a resolution that would have authorized the use of force to implement Resolution 253. The African-Asian resolution failed by only 7-0-8. 1970 UN Y.B. 158. Finland then introduced a compromise resolution, which was adopted quickly as Resolution 277. This resolution introduced very little that had not already been resolved. SC Res. 277, UN SCOR, 25th Sess., Res. & Dec, at 5, UN Doc. S/INF/25 (1970). Resolution 288 was likewise a holding resolution, deciding “that the present sanctions against Southern Rhodesia shall remain in force.” SC Res. 288, id. at 7.

100 Letter from the representative of the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (Dec. 1, 1971), UN SCOR, 26th Sess., Supp. for Oct.-Dec. 1971, at 60.

101 In December 1971, Somalia introduced a draft resolution before the Security Council that would have rejected the British proposal. The United Kingdom exercised its veto to prevent passage of the resolution. 1971 UN Y.B. 100–01.

102 UN SCOR, 27th Sess., 1642d mtg., at 2, UN Doc. S/PV.1642 (1972).

103 Id. at 2–3.

104 Id. at 37.

105 UN SCOR, 27th Sess., 1640th mtg., at 6, UN Doc. S/PV.1640 (1972).

106 SC Res. 314, UN SCOR, 27th Sess., Res. & Dec, at 7, UN Doc. S/INF/28 (1972). In abstaining from voting on the African proposal, the United States stated that “we cannot accept those parts of the draft resolution which directly or indirectly affect laws which have been adopted and are now in force and which under our Constitution must be implemented.” UN SCOR, 27th Sess., 1645th mtg., at 4, UN Doc. S/PV.1645 (1972).

107 Letter from the representative of the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (May 23, 1972), UN SCOR, 27th Sess., Supp. for Apr.-June 1972, at 66 (containing text of speech given in House of Commons by Sir Alec Douglas-Home on May 23, 1972).

108 Id.

109 SC Res. 445, UN SCOR, 34th Sess., Res. & Dec, at 13, UN Doc. S/INF/35 (1979).

110 The representative of Ethiopia stated that “Africa is of course fully aware that the moves currently taking place in Washington and London to send observer missions to Rhodesia are primarily intended to lend legitimacy to the process and its results, thus creating a pretext for the lifting of economic sanctions.” UN SCOR, 34th Sess., 2119th mtg., at 2, UN Doc. S/PV.2119 (1979). The Soviet delegate continued along the same line; the United Kingdom and the United States were using the internal solution “as a pretext to refuse to enforce or to observe the sanctions established by the Security Council against Southern Rhodesia.” Id., 2120th mtg., at 4, UN Doc. S/PV.2120. The representative of Ghana sounded the strongest warning, stating that “measures should be taken … against the danger of unilateral action to lift sanctions against Ian Smith.” If this were to occur, it would be a “flagrant and appalling breach of Charter obligations.” He asked, “What would be left of [the United Nations’] effectiveness if the Security Council, the one organ that can make binding decisions, could be disregarded as lightly as the General Assembly, alas, so often is?” Id. at 13.

111 Letter to the President of the Security Council from the Chairman of the Security Council Committee established in pursuance of resolution 253 (1968) concerning the question of Southern Rhodesia (Nov. 9, 1979), id., Supp. for Oct.–Dec. 1979, at 61, 62 (quoting a statement by the UK Secretary of State for Foreign and Commonwealth Affairs in Parliament on Nov. 7, 1979).

112 Letter from the representative of the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (Dec. 12, 1979), UN SCOR, 34th Sess., Supp. for Oct.-Dec. 1979, at 119, 120.

113 Letter from the representative of Madagascar to the President of the Security Council (Dec. 14, 1979), id. at 131.

114 Letter from the representative of the Union of Soviet Socialist Republics to the President of the Security Council (Dec. 21, 1979), id. at 138, 138.

115 Letter from the representative of the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (Dec. 18, 1979), id. at 137.

116 Resolution 460 passed by a vote of 13-0-2 (Czechoslovakia and the USSR abstaining). The resolution decided, “having regard to the agreement reached at the Lancaster House conference, to call upon Member States to terminate the measures taken against Southern Rhodesia under Chapter VII of the Charter.” SC Res. 460, UN SCOR, 34th Sess., Res. & Dec, at 15, UN Doc. S/INF/35 (1979).

117 Id., 2181st mtg., at 2, UN Doc. S/PV.2181.

118 Id. at 8.

119 Id. at 19.

120 See, e.g., Statement of Mr. Pickering, representative of the United States, UN Doc. S/PV.2977, at 301 (part II) (closed) (Feb. 23, 1991) (“it is only here in the Security Council that we could agree to lift sanctions against Iraq”); Statement of Sir David Hannay, representative of the United Kingdom, id. at 313 (“only the Security Council itself can make that judgement”).

As to the views of others, see, e.g., Statement of Mr. Munteanu, representative of Romania, id. at 332 (“the sanctions against Iraq can be lifted only by the Council itself”).

121 Don Marquis, Archy and Mehitabel, poem 42, “Prudence.” I wish to thank my colleague, Stefan A. Riesenfeld, for bringing this passage to my attention. He employed it in The French System of Administrative Justice: A Model for American Law? Part III, 18 Boston U. L. Rev. 715, 748 (1938).

122 Cooper, Higgott & Nossal, supra note 40, at 408.

123 Paul Lewis, U.S. and Britain Insist on Deadline: Tell Soviets Iraq Must Agree to Kuwait Pullout in Days, N.Y. Times, Feb. 21, 1991, at A1.

124 New Peace Plan at U.N., N.Y. Times, Feb. 15, 1991, at A6 (“The latest peace proposal calls for a halt to the allied bombing and the appointment of a Security Council commission to examine [by Feb. 25] ways of ending the fighting…. Diplomats said the proposal had no chance of being adopted because the United States would certainly veto it.”).

125 Statement of Mr. Vorontsov, representative of the Soviet Union, UN Doc. S/PV.2977, supra note 120, at 296.

126 Statement of Mr. Pickering, id. at 303–06.

127 The discussions that took place in the Security Council at the time of the Soviet initiative make clear that a veto would not have been necessary, since many members demanded that Iraq comply with the resolutions and stated that it was for the Council to authorize any change in the actions taken against it.

128 See, e.g., SC Res. 426, UN SCOR, 33d Sess., Res. & Dec, at 5, UN Doc. S/INF/34 (1978) (establishing the United Nations Interim Force in Lebanon (UNIFIL) for an initial period of six months). UNIFIL’s mandate has been extended continuously every six months since the adoption of Resolution 426. See, e.g., SC Res. 701 (July 31, 1991) (extending mandate of UNIFIL for a further interim period of six months until Jan. 31, 1992).

See also UN Doc. S/5575 (1964) (recommending the stationing of a UN peacekeeping force in Cyprus for a period of three months), most recently extended by SC Res. 759 (June 12, 1992); SC Res. 693 (May 20, 1991) (establishing the UN Observer Mission in El Salvador for an initial period of twelve months).

129 SC Res. 687 (Apr. 3, 1991), reprinted in 30 ILM 852 (1991).

130 Report of the Secretary-General pursuant to paragraph 19 of Security Council resolution 687 (1991), UN Doc. S/22559, paras. 4, 5 (1991), reprinted in 30 ILM at 1706.

131 Id., para. 10 (emphasis added).

132 SC Res. 692 (May 20, 1991), reprinted in 30 ILM at 864.

133 Nor would it seem that a permanent member could reassert its veto because of changed circumstances. Article 62 of the Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331, limits the invocation of changed circumstances to situations where the effect of a “fundamental” change “is radically to transform the extent of obligations still to be performed.” Putting aside the issue of whether the treaty in question is the Charter or a resolution, it would seem rare indeed that the requirements of Article 62 could be met. See Georg Schwarzenberger, Clausula Rebus Sic Stantibus, [Installment] 7 Encyclopedia of Public International Law 22 (1984).

134 Conversely, if the permanent members did not have a veto at all, the blocking of any effort to terminate a measure already taken, were it not modified in the manner described above, would require negative votes by six states.

135 In the event, it may not always be desirable for the required number of votes to be higher than nine. Only six votes could be mustered in June 1993 to lift the arms embargo on Bosnia. Richard Bernstein, Security Council Stops Move to Arm Bosnians, N.Y. Times, June 30, 1993, at A4. The higher number of votes required represents a balance between not encouraging strategic behavior by the target state and trusting in the ability of the Council to modify previous actions when appropriate.

136 A related problem is that it is not always clear what is required to end sanctions. “If the Council is so outraged that it imposes coercive sanctions against a State or regime, as in the case of Southern Rhodesia from 1966 to 1980, it might be useful for it to indicate what the offending State or regime must do to be relieved of the sanctions.” Bailey, supra note 61, at 332. The participatory governance that would accompany the maintenance of consensus on sanctions and the like would result in the elaboration of what is sought from the offending state.

137 See Haas, supra note 19, at 190–94.