Part II - Reforming the Central Institutions of the United Nations

4 The General Assembly: Reforms to Strengthen Its Effectiveness

The General Assembly … Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.¹

We reaffirm that democracy is a universal value based on the freely expressed will of people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives.²

This chapter presents an overview of the evolution of the United Nations General Assembly, its most important achievements and remaining weaknesses, and relevance. It argues that the UN Charter should be amended to allow the introduction of a system of weighted voting, to better reflect the relative significance and influence of its 193 members. A particular proposal will be presented, updating the work done by Schwartzberg.³ We discuss its merits and limitations and propose that a gradual system of direct election of Assembly members be introduced. By way of example, we also present the UN Charter’s Articles 9–11 on General Assembly composition, functions and powers and how these Articles could be amended to reflect the new system of weighted voting and the enhanced powers that are envisaged for the Assembly under a revised Charter.

Key Achievements and Weaknesses

It is possible to have a lively debate about how representative the UNGA is, including the reasons why the founders of the United Nations embedded in the Charter the principle of one-country-one-vote for the General Assembly (Article 18(1)); indeed, in Chapter 2 we presented the likely most plausible explanation, reflecting the rather uneven distribution of political power at the time and the desire of the Big Four to ensure a UN that would not challenge their national prerogatives. Article 18(2) identifies a number of questions on which decisions of the General Assembly are to be made by a two-thirds majority of the members present and voting, including “recommendations with respect to the maintenance of international peace and security, the election of the non-permanent members of the Security Council, the election of the members of the Economic and Social Council, the admission of new Members to the United Nations, the suspension of the rights and privileges of membership, the expulsion of Members” and, of course, questions relating to the budget.

Other Articles of Chapter IV of the Charter on the General Assembly envisage a dual role; it shall be a body for high-level deliberation, but it will also have administrative oversight of the UN system. We are sympathetic to the views put forward by Grenville Clark – discussed in Chapter 2 – that the Big Four saw the one-country-one-vote system under Article 18(1) as a natural manifestation of the principle of “sovereign equality” of its members and an attempt to create a body that would play a mainly advisory role to the Security Council, which would be the locus of real power within the organization. As noted in Chapter 2, the one-country-one-vote principle undermined at the outset the credibility of the General Assembly and may have been a deliberate attempt to weaken it with respect to the Security Council.

In the early stages of the United Nations – certainly during the first decade and possibly through the late 1950s – the one-country-one-vote principle did not prevent the emergence of a working majority led by the United States and many of its allies in Europe and Latin America, which easily accounted for more than half of the UN membership. This in turn, resulted in the Soviet Union feeling isolated within the General Assembly and exercising its power through repeated use of the veto in the Security Council. During the first ten years of the United Nations, the Soviet Union exercised its veto no less than 80 times, the vast majority of instances used to reject applications for membership from a large number of countries. In sharp contrast, the United States did not exercise its first veto until 1970, a full 25 years after the creation of the UN.⁴ Article 4 of the Charter establishes the criteria for membership, which, in essence requires countries to be “peace-loving states” that accept the obligations that it contains and makes membership conditional upon recommendation of the Security Council. It is clear that in these earlier periods the Soviet Union and the other members of the Council had very different understandings of the meaning of Article 4. Thus, Spain’s application for membership did not succeed until 1955 because of its earlier collaboration with the Axis powers during World War II. Indeed, only ten new members were admitted during the UN’s first ten years because of the Soviet veto.⁵

The first big push for expanded membership came in 1955 when 16 new states were accepted into the organization, with a second wave of new entrants taking place in 1960–1961 when 22 new countries became members, reflecting a quickening in the pace of decolonization. In time, as United Nations membership expanded beyond its original 51 founding nations, the organization was gradually transformed into a body dominated by economically small and (often) politically less influential states. Thus, an Assembly that already in 1945 did not reflect in a meaningful way the economic size, population and influence of its members saw the problem greatly accentuated as its membership expanded in the following decades, particularly in the developing world. For instance, membership of African countries rose from four in 1945 to 42 in 1969 and 55 today or from 5.9 percent of the membership to 28.5 percent today. Of course, along the way, the United Nations became truly universal, with its current 193 members accounting for over 99 percent of world gross national product (GNP) and this has been a remarkable (and welcome) development in its own right.

The first decade of the United Nations did see some important achievements reflecting the prevailing distribution of power and the working majority led by the United States. The first session of the General Assembly took place in London on January 10, 1946, and it dealt with the issue of nuclear weapons. The UN Charter is silent on the issue of nuclear weapons because the San Francisco Conference where the Charter was adopted was concluded six weeks before the explosions in Hiroshima and Nagasaki. Against the background of the fearsome destructions caused by these bombs there was an intense debate in policymaking circles, in the academic community, and in the pages of the international press about what the advent of nuclear weapons would mean for the newly created organization: in particular, in light of its stated desire “to save succeeding generations from the scourge of war” and the explicit identification in Article 26 of the Security Council’s responsibilities to formulate plans “for the establishment of a system for the regulation of armaments” (see Chapter 9).

Perhaps appropriately, the General Assembly’s first resolution dealt with the problems raised by the discovery of atomic energy and established the Atomic Energy Commission, whose terms of reference include making proposals for the “control of atomic energy to the extent necessary to ensure its use only for peaceful purposes,” and “for the elimination from national armaments of atomic weapons and of all other major weapons adoptable to mass destruction.” In 1947, the Security Council established the Commission for Conventional Armaments to deliver proposals in the area of armaments reduction and delimitation of armed forces more generally. The Commission had limited success. By 1949 the Soviet Union had succeeded in obtaining nuclear weapons of its own and the Cold War entered an intense phase, which saw over the next several decades a substantial accumulation of conventional and nuclear armaments. These developments notwithstanding, the General Assembly did try to strengthen the role of the UN in the negotiation of disarmament agreements. One important achievement was active engagement in the setting up of various fora addressing global disarmament issues, as of the 1950s and early 1960s, including the UN Disarmament Commission (UNDC) and what would eventually become the Conference on Disarmament (CD) in Geneva established in 1978. The precursor body to the CD was initially made up of ten and then 18 members; it had grown to 61 members by 1996 and to 65 members by 2018. The CD in time became the principal venue for the negotiation of various disarmament treaties, including the 1963 Partial Test Ban Treaty, the 1968 Nuclear Non-Proliferation Treaty (NPT), the 1972 Biological Weapons Convention, the 1992 Chemical Weapons Conventions (CWC), and the 1996 Comprehensive Test Ban Treaty, among others (see also Chapter 9).

As a result of these, according to Marin-Bosch “Today over 180 nations are committed, in legally binding, multilateral instruments such as the NPT or in nuclear weapon-free regional treaties, to refrain from acquiring nuclear weapons. And that is very significant.”⁶ A more recent and potentially very important initiative is the Treaty on the Prohibition of Nuclear Weapons adopted by 122 nations on July 7, 2017, which prohibits the development, testing, production, stockpiling, transfer, use, or threat of use of nuclear weapons. This initiative was launched with a General Assembly Resolution issued in December 2016 and the Treaty was negotiated with impressive speed in the three-week period leading up to its signing. None of the nuclear weapons states signed it, nor did NATO members approve it, but the Treaty is an eloquent reaffirmation of the idea that the use or threat of use of nuclear weapons has no moral justification whatsoever.

The various arms limitation initiatives cited above spearheaded by the General Assembly have had other positive collateral implications. For instance, in 1967, the nations of Latin America and the Caribbean signed the Treaty of Tlateloleco, in which they committed themselves not to acquire nuclear weapons and secured a legally binding pledge from the nuclear weapon states (NWS) not to use nuclear weapons against them, thereby creating a nuclear-free zone in the region. This in turn, encouraged the signing of similar treaties for other regions of the world including the 1985 Treaty of Rarotonga (South Pacific), the 1995 Treaty of Bangkok (South East Asia), and the 1996 Treaty of Pelindaba (Africa). These treaties are not particularly well known but are significant nevertheless, and the countries that have signed them have, thus far, fulfilled their commitments and therefore, contributed to slowing down nuclear proliferation. Of particular significance in this regard was the 1968 NPT (which entered into force in 1970), which established a clear-cut distinction between non-nuclear weapon states (NNWS) and the then five acknowledged nuclear weapon states. In 1995 when the NPTs signatories met to review their nuclear weapons commitments, the NNWS parties decided to permanently and unconditionally opt out of building nuclear weapons. This sharply highlighted the gap with respect to the NWS that remain unwilling to give up their nuclear weapons. At the time China, France, Russia, the United Kingdom, and the United States pledged to move toward nuclear disarmament.

In parallel to these efforts, there was also an attempt within the UN system to delineate more clearly the legal underpinnings of the use of nuclear weapons. For instance, in 1993, the World Health Organization, and then the UN General Assembly, sought an advisory opinion from the International Court of Justice on the legality of the use of such weapons, given the widespread and damaging health and environmental effects, so eloquently laid out in Jonathan Schell’s 1982 monumental The Fate of the Earth, which also addressed the moral dimension of the use of nuclear weapons. In its advisory opinion of July 8, 1996, the International Court of Justice concluded that “the threat or use of nuclear weapons would generally be contrary to the [applicable] rules of international law,” and reminded states that “[t]here exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control” (in particular under the terms of the widely ratified NPT).⁷ These initiatives may have contributed to the five NWS feeling increasingly isolated within the UN on questions of nuclear disarmament. By the 1980s the United States and the Soviet Union had opted for conducting disarmament negotiations outside of the UN framework; for instance, the SALT-I and SALT-II treaties were the results of bilateral negotiations between the two superpowers and did not involve any of the established UN mechanisms. Article VI of the NPT imposes an obligation on its signatories not only to conduct negotiations on nuclear disarmament but actually to conclude such negotiations at some point in the not too distant future.⁸

A second example: In 1948, the General Assembly issued Resolution 217 (III), International Bill of Human Rights, which contained the Universal Declaration of Human Rights. As we have noted earlier, whereas the League’s Covenants had been largely silent on issues of human rights, the UN Charter explicitly embedded a range of human rights provisions, such as that contained in Article 55 (c). The Charter calls upon the United Nations to promote “universal respect for, and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” The 1948 Resolution was endorsed by 48 of the then 58 member states. The significance of this Resolution cannot be overstated. It contributed to a major strengthening of the legal framework underpinning the observance of human rights at the global level and led to the negotiation of a wide range of international instruments addressing multiple dimensions of the human rights agenda, including on the status of refugees, genocide, the rights of women, slavery, torture, and several others. It led also to the 1966 adoption by the General Assembly of the International Covenant on Civil and Political Rights, and the International Covenants on Economic, Social and Cultural Rights (see also Chapter 11).

While the General Assembly’s promotion of human rights is, without doubt, one of the most important areas of achievement, the Assembly also played a critical role in the process of decolonization. The UN Charter recognized explicitly the principle of the self-determination of peoples (Article 1(2)) and it was left to the General Assembly to identify territories that were non-self-governing or trust territories under League of Nations mandate. In this respect, the General Assembly had, as early as 1946, identified 74 non-self-governing territories (mainly colonies) belonging to the following UN member states: Australia, Belgium, Denmark, France, Netherlands, New Zealand, the United Kingdom, and the United States. Spanish and Portuguese colonies were added to this list in 1960. The challenge for the General Assembly was how to encourage the implementation of the principle of self-determination against the background of, at times, strong resistance from some members to even recognize that such territories were indeed colonies. For instance, for many years Spain and Portugal argued that territories under their control were “overseas provinces” (e.g., Angola, Sao Tome) and that as such they were subject to the protections embedded in Article 2(7), where the Charter proscribes the UN from “interven[ing] in matters which are essentially within the domestic jurisdiction of any state.” A similar case was made by France in respect of Algeria and some of its other colonies.

It is beyond the scope of this chapter to go into a detailed description of the role played by the General Assembly in the process of decolonization, but suffice it to say that various General Assembly Resolutions, many of them pressing colonial powers to establish clear timetables for the granting of independence to their dependent territories, and firmly restating the legitimacy of peoples’ aspirations for independence, did much to strengthen the credibility of various grassroots political movements aimed at securing independence in various corners of the world. This resulted in a rapid increase in UN membership; by 1969, the United Nations had 126 members with the vast majority of the new entrants being former colonies, particularly in Africa.

The various General Assembly declarations touching upon the theme of human rights and its subsequent efforts to assist in the codification of the associated international law are a very good example of a larger body of work where the Assembly has sought to codify a series of norms pertaining to the behavior of states. The list of norms developed on various themes is long and includes a broad range of subjects, such as the peaceful uses of outer space, the environment and management of the global commons, the Law of the Sea, terrorism, peaceful coexistence of religions and cultures, the elimination of violence against women, elaborations on the importance of peaceful international dispute resolution, the essential elements of democracy, among a vast range of other progressive and humanitarian issues. While some of these initiatives have foundered in terms of implementation because of the absence of adequate enforcement mechanisms and/or the unwillingness of states sometimes to take seriously their commitments to resolutions that they themselves have supported through their representatives in the General Assembly, one must nevertheless recognize that the Assembly has played a useful catalytic role in helping to identify important core principles to guide the behavior of states, akin to the development of much needed Codes of Conduct.

In parallel to these important resolutions addressing issues of global concern, there were also attempts during the first decade to improve the working of the UN against the background of the distortions introduced by the repeated exercise of the veto by the Soviet Union. In this regard, Resolution 377 (V), also known as the “Uniting for Peace” Resolution, attempted to empower the General Assembly with the ability to act when the Security Council’s decision-making machinery had come to a standstill because of the exercise of the veto (in this case, that of the Soviet Union) and there were major issues of peace and security at play. In other words, the General Assembly made an explicit attempt to enter into the power vacuum created by a Security Council that was paralyzed. In particular, the Resolution resolves that

if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibilities for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression, the use of armed force when necessary, to maintain or restore international peace and security.⁹

Additionally, the UN Charter contains as a primary objective the furtherance of the economic and social development of peoples. The Preamble refers to “the promotion of the economic and social advancement of all peoples” as an important objective of the international community. The General Assembly’s record in this area is, in our estimation, considerably more mixed than its achievements in the area of human rights. The Economic and Social Council (ECOSOC) was intended to play the central role in the implementation of these objectives and strengthened the link between the United Nations and its specialized agencies. ECOSOC’s beginnings were relatively auspicious, leading to the creation in 1947 of the General Agreement on Tariffs and Trade (GATT). This set in motion several global rounds of trade liberalization, which contributed to a significant expansion of international trade and to a boost in economic growth for the global economy. The last of these, the Uruguay Round, eventually led in 1995 to the establishment of the World Trade Organization (WTO).

There seems to be general agreement, however, that by the turn of the century ECOSOC’s role in the area of social and economic development was much diminished. Several factors appear to have contributed to this. First, many of the specialized agencies began operating with a considerable degree of independence. For instance, the International Monetary Fund (IMF) and the World Bank (created in 1944 at the United Nations Monetary and Financial Conference in Bretton Woods, New Hampshire) were founded with governing structures based on weighted voting, enabling the larger UN members to influence issues of economic development through their participation in the Boards of these organizations, leading to what became known, sometimes disparagingly, as the “Washington Consensus.” The fact that both the IMF and the World Bank had complete financial autonomy sharply weakened the link with the United Nations and thus with ECOSOC. By the onset of the global financial crisis in 2008, the World Bank and particularly the IMF had decades of experience in crisis management, and in the promotion of policies intended to tackle poverty and to encourage better economic management. Not surprisingly, both organizations played a major role in addressing the impact of the crisis, with ECOSOC very much on the sidelines, both conceptually and operationally.

The second factor for the loss of ground by ECOSOC in the economic development space was the emergence of a large number of UN conferences convened by the General Assembly and with the extensive participation of civil society organizations on a range of global issues including population (1994), the environment (1992, 2012), social issues (1995), women (1995), and human rights (1993), which shifted the locus of debate beyond ECOSOC itself. ECOSOC credibility and legitimacy and its ability to occupy a significant position in the economic and development space may have been undermined by the fact that, like the General Assembly, it operates on the basis of a one-country-one-vote system. This in practice has meant that small developing countries had an outsize influence, prompting the larger members to channel their concerns through the WB and the IMF where they had in practice much greater influence. The presence of a large contingent of small developing countries representing a significant proportion of the world’s population in the General Assembly did also at times lead to polarization over the priorities of economic development between those defending global economic interests and those calling for more social and economic justice. An example of this are the debates that took place leading to General Assembly Resolutions on the “New International Economic Order,” which never took off in any operationally meaningful way, and it is probably accurate to say were largely ignored by the leaderships of the IMF and the World Bank. Not surprisingly, with the empowerment of smaller states within the General Assembly, the principle of sovereign equality has become deeply entrenched.

An interesting indicator of this phenomenon is provided by the assessed contribution to the budget of the lowest-income UN members, which was set at 0.04 percent in 1946 but had been reduced to 0.001 percent by the 1990s, or 40 times less. Furthermore, Switzerland’s contribution to the budget (1.151 percent) exceeds the cumulative contributions of the 120 countries with the smallest assessed shares. Indeed, the cumulative contribution of the 129 members with the lowest assessed shares, which is the minimum number of countries required for a two-thirds majority, is 1.633 percent. This is only slightly higher than the contribution of Turkey (1.371 percent) and lower than the contribution of Spain, the country with the next highest contribution (2.146 percent). A body organized on the basis of a principle that equates the voting power of China with a population of close to 1.4 billion people with that of Nauru having a population of about 13,000 (or over 106,000 times less) was fated to be less effective, and this distortion manifested itself in a number of ways. First and foremost, given the powers granted to the Assembly by the Charter over budgetary matters, is the perverse way that budget discussions, practices, and procedures evolved over time (discussed in detail in Chapter 12).

Another factor in the marginalization of the General Assembly stems from the nonbinding nature of Assembly resolutions, which by 2018 exceeded 18,000; the vast majority of them with no tangible operational repercussions on the ground. It is thus difficult to disagree with statements such as

[a]lthough the Security Council regained prominence after 1990 as a forum for managing international conflict, the General Assembly’s inability to break with its mind-numbing routine of debating and adopting resolutions (often multiple resolutions) on the same long list of topics contributes greatly to its continued obscurity… . Today it is overshadowed even within the UN not only by the more active Security Council but also by the series of UN global conferences and summits on particular issues.¹⁰

Moving to a System of Weighted Voting

Amending the UN Charter to introduce a system of weighted voting has been the subject of extensive discussions over the years. It figured prominently in Clark and Sohn’s World Peace through World Law, where they presented detailed proposals on how to distribute the voting power among its members, and has been the subject of extensive research since then. We present a proposal in this chapter and comment on the challenges of devising a sensible system of representation. The motivation is not purely to create a voting structure that more closely resembles what currently exists at the World Bank and the International Monetary Fund, which have operated on the basis of weighted voting since 1944 and, therefore, more clearly represented members’ economic and political power. It is actually principally about empowering the General Assembly to discharge more effectively the responsibilities given to it by Article 10 under the Charter, which grant it fairly wide discretion to discuss and make recommendations on a wide array of issues. Although Article 12 specifically gives the Security Council jurisdiction over interstate disputes and matters of international peace and security, the General Assembly can play, and has at times played, a role on such issues, particularly when the Security Council has been blocked or unable to act because of the exercise of the veto. (See for instance, the discussion above on the “Uniting for Peace” General Assembly Resolution and the factors that prompted it.) In such instances, an Assembly with a voice that more fairly represented the relative size of its members could speak with a greater measure of credibility that has generally been lacking under the one-country-one-vote system. In time, a reconstituted Assembly could be given the power to issue resolutions that are binding on its members and carry the force of international law. Expanding the powers of the General Assembly by turning it into a budding world legislature – the global equivalent of the European Parliament, with a more narrowly defined set of prerogatives and substantive jurisdiction – will never happen unless countries feel that there is broad correspondence between the size of the country and its voting power. But the issue goes well beyond redressing what has been perceived as a quaint (not to say unfair, given that the major powers in 1945 actually wanted it this way) system of representation. In fact, it overwhelmingly has to do with creating a body to occupy at least part of the space in the power vacuum that exists today to deal with urgent global problems for which we do not have the problem-solving mechanisms and institutions to address them.

In the paragraphs that follow we will present several options for a system of weighted voting. We agree with Schwartzberg that such a system should be based on a set of valid principles and objective criteria, applied to all members in an even-handed way. It should also be flexible enough to allow for evolution over time, to reflect changes in the data underpinning the indicators. It goes without saying that it should deliver a set of weights that is perceived by members as being realistic and fair.

A Modified Schwartzberg Proposal

Schwartzberg has put forward a proposal that uses three variables to arrive at a set of weights for membership in the General Assembly.¹¹ Each of these variables tries to capture some key principle, seen to be central to the creation of an equitable system of weighted voting. In particular, population size, to reflect each member’s accumulated demographic history and the idea that countries with larger populations represent a larger cross-section of humanity. The size of the member’s economy is a second variable, on the grounds that it is the driving factor determining the size of each country’s absolute contribution to the United Nations’ budget. While, as noted in Chapter 12 presenting a new funding mechanism, each country contributes a fixed share of their gross national income (GNI), their financial contributions differ markedly and clearly larger countries have a correspondingly larger impact on UN operations. Schwartzberg chooses to label this second variable “contributions to the UN budget” but this is a purely semantic distinction, since these contributions are exclusively dependent on a member’s GNI. The third variable is intended to capture the “legal/sovereign equality of nations principle, according to which all nations are counted equally.” All factors are weighted equally and are calculated, respectively, as percentages of the total population of all 193 members, their share of world GNI and their current voting power in the General Assembly, meaning that each country is allocated a 0.5181 percent share (e.g., 1/193). We will discuss this latter principle later in this section and examine its ramifications. Table 4.1 presents the results of applying this methodology, with updated data for all the variables but with an important modification. We believe this modification is justified on methodological grounds, and also to allay potential concerns on the part of many countries, particularly in the developing world, that the formula is not biased against them by the choice of metric used to assess economic size. Whereas Schwartzberg uses GNI at market prices, we use the weighted average (with equal weights) of gross domestic product (GDP) at market prices and GDP at purchasing power parity (PPP) rates.¹²

Table 4.1 Updated General Assembly voting shares under a modified Schwartzberg proposal

					Scenarios
Country	Assessed share1	Population2 in %: P	GDP share3 in %: C	Membership share4 in %: M	I: W share5 in %	II: W share6 in %
Top 20 contributors
USA	22.000	4.350	19.981	0.5181	8.283	8.956
China	12.005	18.515	16.947	0.5181	11.993	10.346
Japan	8.564	1.693	5.238	0.5181	2.483	3.592
Germany	6.090	1.104	3.990	0.5181	1.871	2.571
United Kingdom	4.567	0.882	2.817	0.5181	1.406	1.989
France	4.427	0.896	2.765	0.5181	1.393	1.947
Italy	3.307	0.809	2.142	0.5181	1.156	1.545
Brazil	2.948	2.795	2.588	0.5181	1.967	2.087
Canada	2.734	0.490	1.748	0.5181	0.919	1.247
Russian Federation	2.405	1.930	2.592	0.5181	1.680	1.618
Republic of Korea	2.267	0.329	1.775	0.5181	0.993	1.157
Australia	2.210	0.687	1.331	0.5181	0.726	1.019
Spain	2.146	0.622	1.534	0.5181	0.891	1.095
Turkey	1.371	1.078	1.406	0.5181	1.001	0.989
Netherlands	1.356	0.229	0.889	0.5181	0.545	0.701
Mexico	1.292	1.725	1.704	0.5181	1.316	1.178
Saudi Arabia	1.172	0.440	1.137	0.5181	0.698	0.710
Switzerland	1.151	0.113	0.636	0.5181	0.423	0.594
Argentina	0.915	0.591	0.769	0.5181	0.626	0.675
Sweden	0.906	0.134	0.545	0.5181	0.399	0.520
Other countries
India	0.834	17.885	5.404	0.5181	7.936	6.412
Poland	0.802	0.507	0.778	0.5181	0.601	0.609
Indonesia	0.543	3.526	1.932	0.5181	1.992	1.529
Iran	0.398	1.084	0.929	0.5181	0.844	0.667
South Africa	0.272	0.757	0.525	0.5181	0.600	0.516
Nigeria	0.250	2.549	0.683	0.5181	1.250	1.106
Egypt	0.186	1.303	0.627	0.5181	0.816	0.669
Pakistan	0.115	2.631	0.614	0.5181	1.254	1.088
Lesotho	0.001	0.030	0.004	0.5181	0.184	0.183
Liberia	0.001	0.063	0.004	0.5181	0.195	0.194

1. Assessed budget contributions for the period 2019–2021 as determined by the General Assembly.

2. P is each country’s population share in the total population of all 193 UN members, 2017.

3. C is calculated as the weighted average of a country’s GDP share at market prices and GDP at PPP, for all 193 UN members, using 2017 numbers.

4. M is current voting power in the General Assembly (1/193), in percent.

5. W = (P+C+M)/3.

6. Based on 2019–2021 assessed budget shares.

In particular, we use the International Monetary Fund’s World Economic Outlook database for both GDP metrics for 2017, as opposed to 2009 in the Schwartzberg proposal. Two scenarios are presented in the Table 4.1. In Scenario I, the size of the economy variable is set as a percentage of each country’s share in world GDP, as calculated per the above method. So, for China for instance, this is set at 16.947 percent. In Scenario II, the size of the economy variable is captured by the actual assessed contribution rates established by the General Assembly for the period 2019–2021. This scenario is useful for comparison purposes, in the event that members did not accept to have contribution rates equal to the same fixed proportion of their GDP (as in Scenario I) and the current ad hoc arrangements prevailed which, as noted in Chapter 12, involve measures of GNI and a multiplicity of other factors, such as the burden of external debt, and so on. The table presents data for 30 countries; the top 20 contributors, which account for 83.83 percent of the total assessed budget (and a larger share if one were to include voluntary contributions) and several others deemed to be of interest, including a few small members for comparison purposes. In Scenario I, which embodies a new funding mechanism for the budget, the ten largest voting shares in the General Assembly are held by China (11.993 percent), the United States (8.283), India (7.936), Japan (2.483), Indonesia (1.992), Brazil (1.967), Germany (1.871), Russia (1.680), the United Kingdom (1.406), and France (1.393). Small countries such as Kiribati, Lesotho, and Liberia, all of which at present enjoy the lowest assessed contribution rate to the budget of 0.001 percent, have voting shares of 0.173, 0.184 and 0.195 percent, respectively. Table A1 in the Annex presents the voting shares under Scenario I for all 193 UN members. The results in Scenario II show somewhat smaller voting shares for China, India, Indonesia, and Russia and somewhat bigger shares for the United States, Japan, Germany, Brazil, the United Kingdom, and France. The voting power of the smallest countries is virtually unchanged, given their very small contributions to the budget.

It is interesting to note that in Scenario I the voting shares of Russia, the United Kingdom, and France, the three veto-wielding members of the Security Council other than China and the United States, are the 8th, 9th, and 10th largest in the General Assembly and are all under 2 percent.¹³ Perhaps few things express more eloquently the irrationality of the veto power in 2018 than these numbers. A credible mechanism to allocate voting power in the General Assembly on the basis of sensible principles may run up against a perceived diminished stature in the world of these three countries in particular, with respect to the positions occupied in 1945 at the San Francisco Conference. In 2017, for example, Russia’s GDP was roughly equivalent to the size of Spanish GDP, which itself is less than 8 percent of the size of the US economy. Of course, the solution to this problem is not to confer the power of the veto to India, Japan, Indonesia, Brazil, and Germany, but to do away with the veto altogether, as we argue in Chapter 7 on the creation of the Executive Council. The voting privileges within the Security Council remain an unreasonable anachronism.

The merits of the above proposal notwithstanding, it is not wholly exempt from criticisms. An argument can be made that it introduces incentives whereby UN members gain voting power by boosting economic and population growth above the global average. If governments are intent on the pursuit of high-quality economic growth that might be mirrored in a sustainable environment and improved income distribution metrics, as opposed to simply higher GDP, or stabilizing or even slowing down population growth, their voting power in the General Assembly could be eroded over time. We feel these concerns are legitimate and would thus consider the updated Schwartzberg proposals presented above as a major improvement over the one-country-one-vote system, but as a transitional arrangement, pending the arrival of better economic metrics, which more intelligently capture measures of human welfare and sustainability.

Furthermore, the above arguments notwithstanding, it is also possible to have some misgivings about the third factor in the Schwartzberg proposal, based on the “sovereign equality of nations” principle which attributes a one-third weight to each country’s voting share in today’s General Assembly based on the practice of one-country-one-vote. At a purely methodological level, the effect of introducing this third factor is to increase the voting shares of the smaller countries and reduce the voting shares of the larger ones. Viewed as a political and transitional factor, introduced to entice the smaller countries to vote for an amendment to the UN Charter that would move the General Assembly to a system of weighted voting, it could make good sense. It would signal to members that voting shares in the General Assembly are not purely based on relative size factors – such as population and the size of the economy as embedded in the GNI/GDP – but include an additional factor that confers some value to the concept of nationhood and the importance of diversity, regardless of the size.

One could also argue that such proposal could be sold to member countries as delivering a system that builds upon the existing one-country-one-vote structure, in operation since 1945 and that would be part of a comprehensive set of reforms that would deliver multiple other benefits to members, including the smaller countries, as noted elsewhere in this volume (e.g., the introduction of a more genuine international rule of law and a system of collective security that would allow a redirection of budgetary resources to more productive ends).

But it is also possible to argue the opposite case. The one-country-one-vote principle could be considered undemocratic, although it has at times given a stronger voice to diverse states and peoples who might not normally be heard or considered influential, arguably to the benefit of the whole organization. However, its application (coupled with the veto power in the Security Council) has turned the United Nations into a less effective organization and the General Assembly, in particular, into a body given too often to political posturing and to the issuing of resolutions that carry the weight of nonbinding recommendations. They do not yet have adequate international democratic legitimacy, as they give the citizens of large countries such as China and India a tiny fraction of the voice given to the citizens of microstates. One could also argue that, other things being equal, it would discourage countries from granting independence to territories with ethnically distinct populations, or from political union as they would lose out voting share. Czechoslovakia doubled its General Assembly voting power when it split into Slovakia and the Czech Republic in 1993.

Embedding – even with a one-third share – the one-country-one-vote practice into a new system of weighted voting might also have other undesirable long-term implications. In the US senate, the state of Wyoming (with a population of slightly more than half a million) has the same number of senators (2) as the state of California, with more than 39 million people. When the US Senate votes to approve an international treaty, for instance, as it did in 1945 when it approved the UN Charter, the weight given to a citizen of Wyoming is 70 times larger than that given to a citizen of California. So, the principle of even-handedness of treatment or the application of the same criteria to all members is considerably strained in this version of the Schwartzberg proposal.

One key argument put forth by those who think that significant reforms are needed at the United Nations is that, in an interdependent world in which the meaning of national borders is being eroded through the forces of globalization, we need to strengthen our mechanisms for international cooperation. We need to join forces and work across national boundaries to address major global problems that take scant notice of notions of nationhood and sovereignty. To address the challenges of climate change, for instance, we need to think and act like world citizens, not in the traditional ways that put the national interest above everything else and which, it must be said, have been largely responsible for our failure to take meaningful actions to mitigate its impacts.

The challenge, in designing a proposal for weighted voting in the General Assembly, is one of balance. The principle of “sovereign equality” has in this context generally been damaging to the United Nations’ credibility. One can argue that individual humans – regardless of their nationality or other distinguishing feature such as ethnic origin, gender and so on – should be regarded as equal in terms of their rights and responsibilities, and that we should develop global governance systems that are based on the principle of equality of opportunity, the fundamental principle of the inalienable dignity of the individual human person, and the essential unity of the human race. However, a demographic measure, by itself, could give the most populous countries a de facto power of veto over major decisions of the General Assembly that require a two-thirds majority.

Using a measure of the weight of the economy such as the share in world GDP can seem logical in terms of relative contributions to the UN budget (who pays the bills calls the tune), but it could also be argued that giving the rich and powerful a bigger voice than the poor because they have more money is fundamentally unjust.

The sovereign equality principle (based in part on the principle of self-determination of peoples), while it may seem antidemocratic, acknowledges that the great diversity of nations in size, culture, forms of governance, and experience within the global system needs to be reflected in, and contribute to, global deliberative processes, to enrich them in a way that purely quantitative representation cannot. Minority perspectives can shed additional light on issues that might not at first be apparent to the majority, and decision-making can be strengthened as a result.¹⁴ Our proposal aims at a just balance between these different perspectives.

An Updated Clark and Sohn Proposal

In World Peace through World Law (1966) Clark and Sohn made a strong case for the introduction of a system of weighted voting in the General Assembly. Clark, in particular, as we saw in Chapter 2, had played an active part in the debates leading to the creation of the United Nations and advocated for a stronger role for the General Assembly, seeing it as the seed of a global legislature with powers in a narrowly defined set of areas, mainly to do with peace and security questions. In framing their proposals and suggesting a particular set of voting shares they faced a number of challenges that are no longer present today. In 1960 there were 99 United Nations members that had joined the organization as fully independent states, but there were close to 100 million people living in non-self-governing and trust territories that, in their view, should also be represented. They also would have faced onerous data collection problems, both as regards coverage across countries and in terms of the quality of the sparse information available, for instance on internationally comparable measures of national income, particularly for developing countries. In setting the criteria for determining voting shares they considered a number of variables but felt that “the introduction of any such other factors would raise so many complications and involve such uncertain and invidious distinctions that is it wiser to hold to the less elaborate formula herein proposed,”¹⁵ which was to link voting shares to population but in a way that created population groupings (e.g., the four largest nations, the next eight largest nations, the next twenty largest nations, and so on) and allocated the same voting share to all countries within each one of these groupings. They did this in a way that allocated proportionally fewer shares to the most populous states, an early application of the principle of digressive proportionality. In their discussion of voting shares Clark and Sohn laid out some principles to guide the determination of voting shares, including that every nation should be entitled to some representation no matter how small, that there should be a reasonable upper limit on the voting share of the most populous countries and that no factors other than population should be considered. Additionally, it was important to have a General Assembly that would not be very large and unwieldy. So, in their proposed allocation, the four states with the highest populations – China, India, the Soviet Union, and the United States – each would be entitled to 30 representatives in a Chamber comprising 568 members, equivalent to a 5.282 percent voting share each. Clark and Sohn’s application of the principle of digressive proportionality meant that the 12 largest nations with a 1960 population of 2,186 million people would be allocated 240 representatives, while the remaining 87 nations with a population of 891 million would be entitled to 311 representatives. Clark and Sohn spent considerably more time discussing how representatives to this body would be chosen, what would be the length of service and the relevant areas of legislative authority. Table 4.2 presents an updated Clark and Sohn proposal for the current 193 members that reflects the spirit of their original allocation. It is possible to generate variants of this proposal that distribute voting shares in a way that is somewhat more generous with countries with high populations.

Table 4.2 Updated General Assembly voting shares under modified Schwartzberg proposal and updated Clark proposal

Country	Modified Schwartzberg proposal1	Updated Clark proposal2
Top 20 contributors
United States of America	8.283	5.277
China	11.993	5.277
Japan	2.483	1.319
Germany	1.871	1.319
United Kingdom	1.406	0.660
France	1.393	0.660
Italy	1.156	0.660
Brazil	1.967	2.639
Canada	0.919	0.528
Russian Federation	1.680	1.319
Republic of Korea	0.993	0.660
Australia	0.726	0.528
Spain	0.891	0.660
Turkey	1.001	1.319
Netherlands	0.545	0.396
Mexico	1.316	1.319
Saudi Arabia	0.698	0.528
Switzerland	0.423	0.264
Argentina	0.626	0.660
Sweden	0.399	0.396
Other countries
India	7.936	5.277
Poland	0.601	0.528
Indonesia	1.992	2.639
Iran	0.844	1.319
South Africa	0.600	0.660
Nigeria	1.250	2.639
Egypt	0.816	1.319
Pakistan	1.254	2.639
Lesotho	0.184	0.264
Liberia	0.195	0.264

1. From Table 4.1.

2. Allocates voting shares in relation to population using thresholds set at 300, 160, 70, 40, 20, 10, and 1 million people.

In light of the above discussion and mindful of the various limitations identified for each of the two proposals, we would like to side with the modified updated Schwartzberg proposal. On balance, we think this is the one that better captures the multiple factors that must be considered in coming up with a system of weighted voting in the General Assembly that is fair and transparent, striking a broadly acceptable balance between giving larger countries greater voice, while ensuring that smaller nations maintain an adequate level of representation. Although both proposals – Schwartzberg’s and Clark and Sohn’s – are a major improvement over the current system, it is, of course, possible to imagine alternative methodologies to come up with a set of country weights. One should, in any case, see these proposals as transitional arrangements, and as more sensible options to the current one-country-one-vote system, but likely to evolve in time as better data become available.

The Box at the end of this chapter presents Articles 9, 10 and 11 of the current UN Charter on the General Assembly composition, functions and powers. By way of illustration we also present amended versions of the same Articles to be consistent with the updated system of weighted voting proposed here and the enhanced functions and powers of the General Assembly, in light of other proposals made in subsequent chapters. These proposals and revisions concern only the peace and security functions in the UN Charter. A new but similar article will be needed to define the legislative functions and powers of the General Assembly concerning the management of the global environment.

Selection of Members

We propose a substantial revision of the powers, composition and method of voting of the General Assembly, as initially laid out in the revised Articles 9–22 of the UN Charter. In the first instance, the General Assembly would be given some powers to legislate with direct effect on member states, mainly in the areas of security, maintenance of peace and management of the global environment, with other issues (e.g., surveillance of global financial policies) remaining under the purview of the relevant specialized UN agencies and other international bodies. The General Assembly would take on further legislative powers in progressive steps subject to review of such powers every five years by its members. Powers delegated to the General Assembly would be explicitly laid out and enumerated in the revised Charter which would also contain – in a revised Article 2 on Purposes and Principles – clarity as to what powers would remain vested with member states to protect national autonomy and would not be delegated to the Assembly, following, for example, the EU model of subsidiarity (and proportionality), and/or a clarification of the proper division of powers as seen in systems characterized by federal forms of government. The General Assembly would retain its considerable powers of nonbinding recommendation in any areas deemed to have an impact on the welfare of the world’s people.

In respect of the manner of selection of the Assembly’s representatives we propose the gradual introduction of full popular vote, in three separate stages. In the first stage – lasting eight years or two four-year terms of the General Assembly – representatives would be chosen by their respective national legislatures or, in their absence, according to procedures within other duly constituted governance structures. In the second stage, at least half of the deputies would be chosen by popular vote within a given country; this stage would also last eight years. Finally, in the third stage all deputies would be chosen by popular national vote. Such elections would have to be certified by an impartial international elections board, according to international standards of free and fair elections, before the representative could be confirmed for service in the Assembly. While it may seem a stretch that all countries of the world would be expected to eventually elect their international representatives by popular vote, it has been noted that, in parallel with the wide array of statements emanating from UN bodies affirming the importance of democracy (see those mentioned in Chapter 5, below), as of the 1990s on the international plane, an emerging global “consensus” has been observed that democratic societies might be the “sole feasible social structure.”¹⁶ As regards voting procedures within the General Assembly, decisions would be made by a majority of representatives present and voting, with particularly sensitive issues requiring potentially larger majorities and including, in some cases, at least two-thirds of the representatives of the 19 most populous nations.

Current UN Charter

The General Assembly Composition

Article 9

1. 1. The General Assembly shall consist of all the Members of the United Nations.

2. 2. Each Member shall have not more than five representatives in the General Assembly.

Functions and Powers

Article 10

The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.

Article 11

1. 1. The General Assembly may consider the general principles of cooperation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments, and may make recommendations with regard to such principles to the Members or to the Security Council or to both.

2. 2. The General Assembly may discuss any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations, or by the Security Council, or by a state which is not a Member of the United Nations in accordance with Article 35, paragraph 2, and, except as provided in Article 12, may make recommendations with regard to any such questions to the state or states concerned or to the Security Council or to both. Any such question on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion.

3. 3. The General Assembly may call the attention of the Security Council to situations which are likely to endanger international peace and security.

4. 4. The powers of the General Assembly set forth in this Article shall not limit the general scope of Article 10.

Revised Articles 9, 10, and 11¹⁷

The General Assembly Composition

Article 9

1. 1. The General Assembly shall consist of Representatives from all the member nations.¹⁸

2. 2. The number of representatives in the General Assembly shall be directly proportional to each member nation’s voting share. The voting share shall be determined as the arithmetic average of each member’s world population share, world GDP share, and a membership share which shall be equal for all members.

3. 3. The apportionment of Representatives pursuant to the foregoing formula shall be made by the General Assembly upon the basis of world censuses and GDP estimates as compiled and published in the World Bank’s World Development Indicators. The first census shall be taken within ten years after the coming into force of this revised Charter and subsequent censuses shall be taken in every tenth year thereafter, in such manner as the Assembly shall direct. The Assembly shall make a reapportionment of the Representatives within two years after each such census.

4. 4. Until the first apportionment of Representatives shall be made by the General Assembly upon the basis of the first world census, the apportionment of Representatives in the Assembly shall be based on the latest and most authoritative figures compiled by the United Nations Population Division.

5. 5. Representatives shall be chosen for terms of four years, such terms to begin at noon on the Third Tuesday of September in every fourth year.

6. 6. For the first two terms after the coming into force of this revised Charter, the Representatives from each member nation shall be chosen by its national legislature, or, in the absence of such a body, by the government through a process of consultation to ensure broad representation, except to the extent that such legislature may prescribe the election of the representatives by popular vote. For the next two terms, not less than half of the representatives from each member nation shall be elected by popular vote and the remainder shall be chosen by its national legislature, unless such legislature shall prescribe that all or part of such remainder shall also be elected by popular vote; provided that any member nation entitled to only one Representative during this two-term period may choose its Representative either through its national legislature or by popular vote as such legislature shall determine. Beginning with the fifth term, all the Representatives of each member nation shall be elected by popular vote. The General Assembly may, however, by a two-thirds vote of all the Representatives in the Assembly, whether or not present or voting, postpone for not more than four years the coming into effect of the requirement that not less than half of the Representatives shall be elected by popular vote; and the Assembly may also by a like majority postpone for not more than four years the requirement that all the Representatives shall be elected by popular vote. In all elections by popular vote held under this paragraph, all persons shall be entitled to vote who are qualified to vote for the members of the most numerous branch of the national legislatures of the respective nations, with the results being subject to international electoral certification.

7. 7. Any vacancy among the Representatives of any member nation shall be filled in such manner as the national legislature of such member nation may determine. A Representative chosen to fill a vacancy shall hold office for the remainder of the term of his predecessor.

8. 8. The Representatives shall receive reasonable compensation, to be fixed by the General Assembly and to be paid out of the funds of the United Nations.

9. 9. There will be a limitation of three four-year terms on the length of service of Representatives.

Functions and Powers

Article 10

The General Assembly shall have the power:

1. a. to enact legislation binding upon member nations and all the peoples thereof, within the definite fields and in accordance with the strictly limited authority hereinafter delegated;

2. b. to deal with disputes, situations, threats to the peace, breaches of the peace, acts of aggression and matters relating to management of the planetary environment, as hereinafter provided;

3. c. to make nonbinding recommendations to the member nations, as hereinafter provided;

4. d. to elect the members of other organs of the United Nations, as hereinafter provided;

5. e. to discuss, and to direct and control the policies and actions of the other organs and agencies of the United Nations, with the exception of the International Court of Justice; and

6. f. to discuss any questions or any matters within the scope of this revised Charter.

Article 11

1. 1. The General Assembly shall have the primary responsibility for the maintenance of international peace and security, and for ensuring compliance with this revised Charter and the laws and regulations enacted thereunder.

2. 2. To this end the General Assembly shall have the following legislative powers:

   1. a. to enact such laws and regulations as are authorized by Annex I of this revised Charter relating to universal, enforceable and comprehensive national disarmament, including the control of nuclear energy and the use of outer space;

   2. b. to enact such laws and regulations as are authorized by Annex II of this revised Charter relating to the military forces necessary for the enforcement of universal and comprehensive national disarmament, for the prevention and removal of threats to the peace, for the suppression of acts of aggression and other breaches of the peace, and for ensuring compliance with this revised Charter and the laws and regulations enacted thereunder;

   3. c. to enact appropriate laws defining the conditions and establishing the general rules for the application of the measures provided for in Chapter VII;

   4. d. to enact appropriate laws, as needed, establishing what acts or omissions of individuals or private organizations within the following categories shall be deemed offenses against the United Nations: (1) acts or omissions of government officials of any nation which either themselves constitute or directly cause a threat of force, or the actual use of force by one nation against any other nation, except that no use of force in self-defense under the circumstances defined in Article 51 of this revised Charter shall be made such an offense; (2) acts or omissions of any government official or any other individual or any private organization which either themselves constitute or directly cause a serious violation of Annex I of this revised Charter or of any law or regulation enacted thereunder; (3) acts or omissions causing damage to the property of the United Nations or injuring any person in the service of the United Nations while engaged in the performance of official duties or on account of the performance of such duties; and (4) acts or omissions of any individual in the service of any organ or agency of the United Nations, including the United Nations International Peace Force, which in the judgment of the General Assembly are seriously detrimental to the purposes of the United Nations;

   5. e. to enact appropriate laws:

      1. (1) prescribing the penalties for such offense as are defined by the General Assembly pursuant to the foregoing subparagraph (d);

      2. (2) providing for the apprehension of individuals accused of offenses which the Assembly has defined as sufficiently serious to require apprehension, such apprehension to be by the United Nations civil police provided for in Annex III or by national authorities pursuant to arrangements with the United Nations or by the joint action of both;

      3. (3) establishing procedures for the trial of such individuals in the courts administered by the United Nations, provided for in Annex III; and

      4. (4) providing adequate means for the enforcement of penalties.

3. 3. No such law shall, however, relieve an individual from responsibility for any punishable offense by reason of the fact that such individual acted as head of state or as a member of a nation’s government. Nor shall any such laws relieve an individual from responsibility for any such offense on the ground that he has acted pursuant to an order of his government or of a superior, if, in the circumstances at the time, it was reasonably possible for him to refuse compliance with that order.

4. 4. The member nations agree to accept and carry out the laws and regulations enacted by the General Assembly under paragraph 2 of this Article, and the decisions of the Assembly made under this revised Charter including the Annexes; provided, however, that any member nation shall have the right to contest the validity of any such law, regulation or decision by appeal to the International Court of Justice. Pending the judgment of the Court upon any such appeal, the contested law, regulation, or decision shall nevertheless be carried out, unless the Assembly or the Court shall make an order permitting noncompliance, in whole or in part, during the Court’s consideration of the appeal.

5. 5. As soon as possible after the coming into force of this revised Charter, the Executive Council shall negotiate with any state that may not have become a member of the United Nations an agreement by which such state will agree to observe all the prohibitions and requirements of the disarmament plan contained in Annex I of this revised Charter, and to accept and carry out all the laws, regulations, and decisions made thereunder, and by which the United Nations will recognize the right of any such state and of its citizens to all the protection and remedies guaranteed by this revised Charter to member nations and their citizens with respect to the enforcement of Annex I and the laws, regulations, and decisions made thereunder. If a state refuses to make such an agreement, the Executive Council shall inform the General Assembly, which shall decide upon measures to be taken to ensure the carrying out of the disarmament plan in the territory of such state.

5 A World Parliamentary Assembly: A Catalyst for Change

The assembly’s very existence would also help promote the peaceful resolution of international conflicts. Because elected delegates would represent individuals and society instead of states, they would not have to vote along national lines. Coalitions would likely form on other bases, such as world-view, political orientation, and interests. Compromises among such competing but nonmilitarized coalitions might eventually undermine reliance on the current war system, in which international decisions are still made by heavily armed nations that are poised to destroy one another. In due course, international relations might more closely resemble policymaking within the most democratic societies in the world.¹

Richard Falk and Andrew Strauss

The United Nations is not a world government, but it is our primary forum to discuss issues and risks of global significance in an increasingly interdependent world. Whether it is perceived as being imbued with a strong dose of democratic legitimacy matters a great deal for its effectiveness, credibility, and ability to become a problem-solving organization. For all of these reasons, and for those expressed below, we suggest the establishment of a significantly reformed General Assembly as explained in Chapter 4. Until such significant reforms are realized, in this chapter we also sketch out the possibility of an interim “World Parliamentary Assembly” that could serve as an advisory body to the General Assembly, acting as a type of “second chamber,” and greatly enhancing the legitimacy of the UN as a global decision-maker as soon as possible.

This is particularly important because the United Nations General Assembly itself on a number of occasions has expressed its unambiguous support for democratic forms of governance for its members. For instance, General Assembly Resolution 44/146 (1989) on

Enhancing the effectiveness of the principle of periodic and genuine elections [stressed] its conviction that periodic and genuine elections are a necessary and indispensable element of sustained efforts to protect the rights and interests of the governed and that, as a matter of practical experience, the right of everyone to take part in the government of his or her country is a crucial factor in the effective enjoyment by all of a wide range of other human rights and fundamental freedoms, embracing political, economic, social and cultural rights.²

And General Assembly Resolution 55/2 (2000), one of the more substantive resolutions issued in recent decades, also known as the United Nations Millennium Declaration, states: “We consider certain fundamental values to be essential to international relations in the twenty-first century.” These include: freedom, equality, solidarity, tolerance, respect for nature, and that “democratic and participatory governance based on the will of the people best assures these rights.”³ Clearly the United Nations voice in these important matters would carry considerably more weight if it were seen itself as being imbued by adequate levels of democratic legitimacy.

The idea of establishing a second chamber at the United Nations has existed since the organization’s inception. Grenville Clark and Louis Sohn wrestled with the issue as they worked on World Peace through World Law in the 1950s. While not actually recommending the creation of a bicameral UN, they stated: “We hold no dogmatic views on this difficult subject, the essential point being that there must be some radical, yet equitable, change in the present system of representation in the General Assembly as a basis for conferring upon the Assembly certain essential, although carefully limited, powers of legislation which it does not now possess.”⁴ The idea is certainly older than the UN; the founders of the League of Nations for a time considered adding a people’s assembly as part of the League’s initial organizational structure.

One key motivation was to enhance the democratic character of the UN by establishing a firmer linkage between the organization and the peoples it was meant to serve. The preamble to the UN Charter starts with “We the peoples” and highlights our determination to “save succeeding generations from the scourge of war” and to achieve other noble ends. But, in time, the General Assembly, which comes closest among the UN’s existing agencies to representing the will of the people, falls far short of this. The men and women who serve on the General Assembly are diplomats representing the executive branches of their respective governments and there is generally no meaningful, direct linkage between them and the people they are supposed to represent. In fact, in many countries, there is no linkage between the governments themselves and the people they rule over because they are not working democracies. In his open letter to the General Assembly of October 1947 Albert Einstein stated:

the method of representation at the United Nations should be considerably modified. The present method of selection by government appointment does not leave any real freedom to the appointee. Furthermore, selection by governments cannot give the peoples of the world the feeling of being fairly and proportionately represented. The moral authority of the United Nations would be considerably enhanced if the delegates were elected directly by the people. Were they responsible to an electorate, they would have much more freedom to follow their consciences. Thus we could hope for more statesmen and fewer diplomats.⁵

In time, rather than bring a measure of democratic legitimacy to the General Assembly by providing for the direct election of its members – an innovation that would require amendments to the UN Charter, as outlined in Chapter 4 – proposals emerged that put forward the creation of a second chamber, a World Parliamentary Assembly (WPA), complementary to the General Assembly, which would continue to be the main locus of government-to-government interactions. The WPA would help bridge the democratic legitimacy gap that arises when an organization, through its actions (e.g., the drafting of Conventions, decisions to intervene or not on behalf of the international community in various conflicts, the actions of its various specialized agencies and related organizations) can affect in tangible ways people’s welfare, but those affected by these decisions have little input in how they are formulated, arrived at, and implemented, thereby creating a disconnection between citizens and the United Nations.

In Chapter 4 on the General Assembly we argued in favor of giving the General Assembly greater powers to legislate in a narrow set of areas, to empower it to actually begin to deliver on the main aspirations embedded in the UN Charter. We think that this idea would gain greater acceptance and better outcomes would be ensured if the UN moved, as quickly as possible, to establish interim mechanisms that also represent peoples more directly, not just governments and/or states. Governments’ main interest at the UN to date, by and large (either consciously or through the power of inertia), is the preservation of a system overly reliant on a too-narrow conception of the sovereign state. With the possible exception of the member states of the European Union, they are mainly motivated by the belief that “a nation-state cannot be subjected to, or made accountable for the decisions of any authority beyond itself.”⁶ This may have been a convenient ideological foundation for the UN for the major powers in 1945 but it has increasingly turned into an absurdity – close to 200 sovereign states operating in an interdependent world increasingly in need of a global rule of law, but bound by a chaotic patchwork of different, at times contradictory, sets of rules.

Representing the interests of the global citizenry, a new WPA, advising the current UN General Assembly, could bring in a fresh global perspective on the broad array of unresolved problems that we currently confront. It would be in a stronger position to promote higher levels of international cooperation because its members would be called upon to see such problems through the lens of humanity’s better interests rather than narrow national considerations. The WPA also could be a much more effective catalyst for advancing the process of reform and transformation at the United Nations itself because, as we shall explain below, its members would have a much looser linkage with their respective governments and their specific national – as opposed to global – priorities. In the 2010 version of his original paper making the case for the establishment of a United Nations Parliamentary Assembly, Heinrich notes that such a body could also play a role in reinforcing democratic tendencies in many corners of the world and foster “a new planetarian ethos by symbolizing the idea of the world as one community.”⁷

Setting up a World Parliamentary Assembly

Article 22 of the UN Charter states: “The General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions.”⁸ It is likely that the creation of a WPA would be seen in the spirit of the “important questions” identified in Article 18 of the Charter, which require a two-thirds majority of those members present and voting for approval, but would not require the approval of the permanent members of the Security Council. So, building public and governmental support for a General Assembly resolution putting in motion the establishment of a WPA would be the first step in what would likely be a multi-stakeholder process, involving wide consultations. However, this process will not start from zero. The creation of a WPA has already received strong endorsements from a number of major organizations and bodies. In 1993 the Canadian House of Commons Standing Committee on External Affairs and International Trade recommended that “Canada support the development of a United Nations Parliamentary Assembly.”⁹ In 2005, with the support of the Committee for a Democratic UN – now known as Democracy without Borders – 108 Swiss Parliamentarians sent an open letter to UN Secretary General Kofi Annan calling for the establishment of a WPA.¹⁰ That same year the Congress of the Liberal International followed suit by calling “on the member states of the United Nations to enter into deliberations on the establishment of a Parliamentary Assembly at the United Nations.”¹¹

Also in June 2005 (and again in July 2018) the European Parliament issued a resolution that called for “the establishment of a United Nations Parliamentary Assembly (UNPA) within the UN system, which would increase the democratic profile and internal democratic process of the organisation and allow world civil society to be directly associated in the decision-making process,” also stating that “the Parliamentary Assembly should be vested with genuine rights of information, participation and control, and should be able to adopt recommendations directed at the UN General Assembly.”¹² These declarations were given further stimulus in 2007 with the establishment of the International Campaign for a United Nations Parliamentary Assembly, an umbrella organization that, as of 2018, has brought together over 150 civil society groups and 1540 parliamentarians from 123 countries. It defines itself as:

a global network of parliamentarians, non-governmental organizations, scholars, and dedicated citizens that advocates democratic representation of the world’s citizens at the United Nations. A United Nations Parliamentary Assembly, UNPA, for the first time would give elected citizen representatives, not only states, a direct and influential role in global policy.¹³

The World Federation of United Nations Associations issued a resolution at their World Congress on October 21, 2018, stating that it “supports steps towards the creation of a United Nations Parliamentary Assembly” and that the UN “must address the democratic deficit within global decision-making processes” if it is to be successful “in the pursuit of creating a better world for all and ensuring that no one is left behind.”¹⁴ A similar resolution was issued in May of 2016 by the Pan-African Parliament.¹⁵

Despite these initiatives and prominent statements, it is reasonable to assume that there will be some opposition. The obstacles are likely to be of at least two kinds. First, there may well be resistance within some of the member states of the UN, for whom institutional inertia is a defining characteristic. This might be particularly the case for some of the larger states, including those with veto power in the Security Council, which might hesitate to introduce institutional innovations that could upset internal power relationships or that might introduce a degree of unpredictability – or simply change – in the management of UN affairs. For that reason, it will likely be necessary to approach this project in a multistaged way. In the first instance, the WPA would, as described above, be set up as a consultative body, with the power to make recommendations on issues of international concern but with no effective political power; an adjunct institution to the General Assembly with responsibilities that would be difficult to perceive as a threat to the established political order. Learning from past experience, it would be useful to continue to support the building of a civil society coalition that would make the case for the establishment of such a body and would seek to obtain the support of sympathetic governments to play a catalytic role within the General Assembly, building a critical mass of support. In this regard, governments such as that of Canada and the European Parliament could be potentially important allies.

There is, moreover, a useful model to guide the future evolution of the WPA. The European Parliamentary Assembly was established by the six founding members of the European Economic Community (EEC) (Belgium, France, Germany, Italy, Luxembourg, and the Netherlands) and met for the first time on March 19, 1958. It initially had 142 members drawn from the parliaments of the EEC’s six members, with the Assembly subsequently changing its name to the “European Parliament” in March 1962. In the early years, members of the European Parliament served in a dual national and European capacity, but at a Summit Conference in Paris in December 1974 the decision was taken to move to direct election of members by universal suffrage, with the first such election taking place in June 1979. With the accession of Denmark, Ireland, and the United Kingdom in 1974, the number of members of the European Parliament (MEPs) was increased to 198. Successive enlargements took place with the accession of Greece in 1981, Spain and Portugal in 1986, and other countries in later years. The Treaty of Lisbon in 2009 capped the number of MEPs at 751.

More important, however, than these membership enlargements, reflecting the growth of the EU from 6 to 28 members over the past several decades, has been the expansion of its powers. The Treaty of Luxembourg significantly expanded the powers of the Parliament in budgetary matters in April of 1970, to coincide with a shift in the sources of funding of the EEC, from member state contributions to its own resources. The 1987 Single European Act made accession and association treaties for prospective new members subject to parliamentary approval. The Maastricht Treaty in 1992 expanded the powers of Parliament by making the membership of the Commission subject to parliamentary approval, de facto giving it control over the EU’s executive functions. These powers were further expanded with the Treaty of Amsterdam in 1997, which devolved to the European Parliament certain powers from national governments to other areas such as legislation on immigration, adopting European legislation in certain areas of civil and criminal law, and foreign and security policy. The Treaties of Nice (2001) and Lisbon (2009) saw further expansion of the Parliament’s powers, with the latter adding some 45 areas where the Parliament would essentially share a codecision role with the Council of Ministers.

From its humble beginnings as a parliamentary assembly in 1958, the European Parliament has moved over the past decades to the center of decision-making on issues of concern to the European Union and has attained a large measure of democratic legitimacy. Interestingly, its members are not grouped by nationality but by broadly shared political persuasions or beliefs, suggesting that shared ideas and values are now considered more important that political geography. A European Parliament model, with stages of incremental and progressive development (e.g., by initially establishing a parliamentary advisory body at the UN under Article 22 of the Charter), however, is not the only proposal on the table for the setting up of a WPA at the UN. Some have suggested an amendment to the UN Charter under Article 109 to establish a more robust legislative body in the first instance (see Chapter 4) which, however, requires the approval of two thirds of the UN’s members and the assent of all permanent members of the Security Council, a high barrier to clear.¹⁶

Launching a WPA under the power given to the General Assembly under Article 22 to establish subsidiary organs may be a more promising approach than seeking an amendment to the Charter. Indeed, the case can be made that getting 129 members of the General Assembly to support a WPA resolution would not be an insurmountable obstacle since there is, in general, broad awareness that, as currently constituted, the United Nations is no longer “fit for purpose” and there is a need to narrow the governance gap associated with our collective inability to confront serious global problems. If anything, this sense that our current global order is in need of significant repair might well intensify in coming years, under the onslaught of a multitude of unresolved global problems.

A possibly more promising and speedier approach than persuading 129 members of the General Assembly to launch a WPA could be through a standalone treaty which might get the WPA off the ground with the participation of some 30 members, representing a broad spectrum of the UN’s membership. This could set a process in place for the subsequent ratification by other members. A similar procedure was followed, of course, for the creation of some of the UN’s leading and/or long-standing organizations, such as the World Health Organization (WHO) and the International Labor Organization (ILO).

In any event, as the above discussion makes clear, there are multiple paths to the establishment of a WPA. Another possibility would be to follow the model used in the negotiations of the Land Mines Treaty; a “single negotiating text method” could be adopted for the creation of the WPA, with first discussions taking place outside UN structures. Initial efforts to establish the WPA in this scenario could include consultations between like-minded, sympathetic stakeholders and could be enabled by the support of a core group of supportive states. While desirable, it would not be essential to have the consent of all or even the majority of nations to get this institution off the ground. Any state could join this initiative and it is expected that citizens would urge their governments to support the WPA. In time, as the WPA gained democratic legitimacy, it could be integrated into the international constitutional order, attached as an advisory body to the General Assembly, consistent, as noted earlier, with Article 22 of the UN Charter that empowers the Assembly to create “subsidiary organs.”

It is not unreasonable to expect that WPA members, given their closer links to national parliaments and their constituents, might then see themselves less bound to national interests and priorities. Diverse coalitions might then emerge and the WPA’s very existence would contribute to finding creative solutions to global problems. The power, ingenuity and efficacy of coordinated transnational civil society movements, including “smart coalitions” with like-minded states, have proven themselves in the recent remarkable successes of, for example, the creation of the International Criminal Court (ICC) and the Land Mines Treaty (see Chapter 21 for more information on transnational civil society coalitions and “citizen diplomacy”).

A second kind of objection or obstacle to the establishment of a WPA, as discussed in Chapter 4 in relation to a significantly reformed General Assembly, would likely stem from a potential lack of agreement on the basic architecture of such an organ. Who would be its members? What would be the criteria for representation in a community of member nations ranging in population size from China and India to Palau and Nauru? How would one address the issue of the nondemocratic nature of many of the members of the UN? Would countries’ participation in the WPA be based on the principle of one-person-one-vote or some other principle that could be applied consistently across all members? Might democratic nations object to the participation of nondemocratic/authoritarian regimes in an institution that would have as a key primary purpose to bring to the UN a measure of democratic legitimacy?

These are central questions, but they are amenable to sensible proposals and solutions that will be useful in planning the broader UN reform. Obviously, the design of the WPA’s architecture would have to employ a consultative process and involve a broad cross-section of humanity. A high-level panel, or expert group, within or external to the UN could be set up to review existing answers to the above questions and to suggest, as needed, alternative avenues. In the pages that follow we put forward two alternative proposals, one that builds on the work done in this area by Dieter Heinrich¹⁷ and Joseph Schwartzberg¹⁸ and another which was originally proposed by Richard Falk and Andrew Strauss.¹⁹ These proposals are distinctive from those set out in Chapter 4, as they are relevant for an Assembly at first constituted by members appointed or chosen from members of national parliaments or similar bodies.

A Modified Heinrich/Schwartzberg WPA

Heinrich and Schwartzberg envisage a WPA made up of members appointed by or chosen from members of national parliaments of UN member states, a proposal very much in the spirit of the formation of the European Parliament. Neither is opposed to the direct election of members, but both consider it as being premature; a complex undertaking for which, given the diversity of the UN membership and the different political regimes currently in existence, the international community is not yet ready for. It is, of course, a desirable goal for the future, a natural conclusion to an evolutionary process that would have several intermediate stages. As a start, national parliamentarians as members of the WPA would certainly bridge in a clear way part of the democratic deficit at the UN. They would in general be more representative of the populations of their respective countries than unelected government bureaucrats and/or diplomats serving their countries at the United Nations. As they would generally do in their home countries, members of the WPA would see themselves as representing their countries’ citizens and could play the role of advocates for the United Nations in their home countries. Their participation in the WPA should also broadly reflect the distribution of political power in the national parliament across the different political parties and persuasions (e.g., right, left, green, etc.). Furthermore, we would strongly favor the introduction of some gender quota system, to ensure sufficient gender diversity in the WPA. At the moment, according to data compiled by the Interparliamentary Union, on average the share of women in parliaments worldwide in 2019 stands at slightly more than 23 percent. There is credible evidence from a range of studies about the benefits of higher participation of women in village councils, national parliaments, corporate boards in publicly listed companies, and other such decision-making bodies; introducing approximately a 40 percent quota for women in the WPA, therefore, would be highly desirable.^{20, 21}

There would be no obligation for countries to participate in the WPA; member country governments could opt out if they wished. Countries could also be given the option to choose distinguished citizens (e.g., former members of national parliaments, retired judges, eminent citizens at large) as WPA members if they felt that the double burden of serving in the national parliament and the WPA might represent an excessive claim on their time, particularly if, as could be expected, the WPA would be available for business and deliberations during a not insignificant portion of the calendar year. By the same token, countries that felt they had the institutional machinery in place for the direct and credible election of WPA members from the outset could not reasonably be prevented from opting to do so, in a voluntary fashion. The activities of the WPA would be funded from the UN budget and the cost of its operations is not initially expected to be onerous. In any event, as we discuss in Chapter 12 on a new funding mechanism for the UN, there would be adequate resources available to finance these activities under the 0.1% of gross national income (GNI) annual funding target we are recommending.

Members could serve for four-year terms, subject to a two-term limit. We think that this would be desirable to avoid the emergence of a professional political class for which long tenures in office can sometimes contribute to a shift in incentives and motivations, with remaining in office at times overriding all other considerations. Deliberative bodies can also benefit from infusions of fresh blood, new perspectives and the energy of younger (and maybe more idealistic) new generations of leaders. One would hope also that the WPA would be good training in the workings of democracy, and this could be an invaluable experience for members from countries with limited, imperfect, or nonexistent traditions of consultative democracy. We also think that there is merit in the idea that WPA members should be provided with legal protections, in particular against possible retaliation from their home governments for taking positions that they might perceive in the global public interest, but which governments might judge as counter to established national priorities and/or policies, as determined by the government then in power.

One early challenge in the setting up of the WPA would be how to manage the participation of nondemocratic and/or authoritarian regimes. Painful tradeoffs are likely. On the one hand, since the WPA is brought into being to imbue the UN with a greater degree of democratic legitimacy, one would favor processes for the election of its members that would exemplify the very principles of accountability, transparency, consultation, and rule of law that underpin accepted norms of good governance (as discussed in Chapter 20 on the principles and values underpinning global governance reforms). On the other, one would wish a WPA that was truly universal in its representation of the human family and this would mean, inevitably, including those parts of the world where citizens, often through no fault of their own, are ruled by autocratic regimes and governments that either do not believe in the periodic legitimization of rule through the ballot box and/or would not wish to put themselves through that test. How to guard against, for instance, China ensuring that all of its (likely several dozen) members to the WPA would be card-carrying members of the Communist Party?

There may be no easy solution to this particular quandary in this first stage of the WPA, where its role will be largely advisory. Laurenti regards the existence of nondemocratic states as being an insurmountable obstacle to the creation of a WPA, because the presence of representatives from these countries (e.g., Belarus, China, Cuba, North Korea, Sudan, Syria, Venezuela, many countries in the Arab world, and a significant number in sub-Saharan Africa) would undermine the WPA’s desirable democratic character.²² We do not wish to minimize the importance of this concern. However, the existence of authoritarian regimes did not prevent the creation of the UN itself and the General Assembly’s membership is made up of fully democratic states, some that are flawed in their democratic character, and many others that are characterized by various shades of authoritarianism.

That is, unfortunately, the state of democracy in the world today. Close to 32 percent of the countries included in The Economist’s Democracy Index 2018 are authoritarian regimes of some form or other.²³ But, as noted earlier, their presence in the General Assembly has not prevented that body from endorsing democratic and participatory forms of governance as the most desirable option for its members. Thus, rather than wait for the time when all members will be democratic (possibly a very long time), we would favor an approach that was broadly inclusive, and that as long as the majority of the WPA’s members were democratic, the Assembly could still function effectively and be a catalyst for change. Laurenti also raises questions, with the possibility of the appearance of this new global institution, about the willingness of citizens to tolerate the stresses that would be placed upon them by the existence of a global “mandatory regime” that would be “dominated by people unlike themselves,” by “aliens” as he calls those of a different nationality.²⁴ We will come back to this issue in the last section of this chapter. Suffice it to say now that, in the early stages, there is very little in our vision of a WPA that is “mandatory” in nature; its role would initially be largely advisory, like the European Parliamentary Assembly set up in 1958.

One possible compromise, for instance, might be for the General Assembly resolution establishing the WPA to set out a list of minimum qualifications that would need to be fulfilled to be accepted into membership. If, for instance, one possible criterion for membership would be that there be no pending legal cases against the member for financial improprieties, 40 percent of the members of the Brazilian legislature would be automatically disqualified. More generally, rather than establishing criteria that would aim for the lowest common denominator, one would wish to encourage the selection of members that were recognized objectively for their integrity and a distinguished life of public service. In this respect, one option worthy of serious consideration would be to ask national parliaments (or similar bodies, where parliaments do not exist) to elect their WPA members by secret ballot, to free voting members from the usual sectarian/partisan, or other pressures that so often stand in the way of electing the most capable and worthy candidates.²⁵ In any case, given the current state of democracy in the world, it is to be expected that the WPA would have a clear democratic majority among its members.

Distribution of WPA Membership

A central issue to resolve is the determination of country membership in the WPA. The principle of one-person-one-vote, at this stage in human history at least, likely poses insurmountable practical challenges. China’s population overwhelms that of most other countries; this would result in highly skewed membership in favor of China, a nondemocratic UN member. Understandably, there might be strong opposition to the creation of a body intended to boost the democratic legitimacy of the United Nations being dominated in its membership by a country with a very limited tradition of democracy. For this reason, Schwartzberg, for instance, goes back to the criteria that he proposed for determining voting power in the General Assembly, consisting of three elements: population share (P), relative contributions to the UN budget (C), which, as noted earlier, is a proxy for the share of the country in world GNI, and a membership factor (M) which is simply 1/193 percent, to represent a country’s current voting power in the General Assembly under the one-country-one-vote system. The arithmetic average of these three shares (P + C + M)/3 = W determines a country’s relative weight or share in the WPA membership.

The total number of seats in the WPA for country j, S_j, will then be determined by the ratio of W_j to D, where D is defined as the weight for the smallest member. Thus, to take the example of China, W_j = 11.993, as derived in Table 4.1. For the 193 members of the United Nations, D = 0.173. So S_j for China would be 11.993/0.173, which rounded to the nearest integer translates into 69 members in the WPA. For Bangladesh W_j = 1.015 from which one can derive that, rounded to the nearest integer, the country would have six WPA members. Table 5.1 below presents a summary of the data, using population and GDP figures for 2017. The WPA would thus have a total of 567 members, with the United States (48), India (46), and Japan (14) having the second, third and fourth largest representations. A total of 107 countries would have one representative each. While these countries account for 5.9 percent of the world’s population, they would nevertheless account for 18.9 percent of the total number of seats in the WPA. This reflects the bias toward small countries which the Schwartzberg proposal builds in deliberately through the introduction of the “UN membership” factor in the determination of the membership weights. Three countries, China, the United States, and India, accounting for 41 percent of the world’s population, would have a total of 163 representatives, or 28.7 percent of the total. Each of the deputies representing countries small enough to have only one WPA member, would represent an average of 4.1 million people, whereas one of the Chinese representatives would represent some 20 million people.

Table 5.1 UN member state representation in a WPA: Modified Schwartzberg/Heinrich proposal

Seats per nation 1	Number of nations	%	Number of seats	%	Population in millions	%	Average population per seat
1	107	55.4	107	18.9	441.08	5.9	4.1
2–3	58	30.1	127	22.4	1422.41	19.0	11.2
4–9	20	10.4	112	19.8	1745.90	23.3	15.6
10–20	5	2.6	58	10.2	827.26	11.0	14.3
21–69	3	1.6	163	28.7	3051.29	40.7	18.7
Total	193	100.0	567	100.0	7487.94	100.0	13.2

1 Seats per nation determined by relative population and GDP shares, as well as UN membership factor as described in text.

The above method could be in operation for four parliamentary terms, lasting a total of 16 years. It is expected that during this period the WPA would gain in legitimacy having joined in or influenced numerous General Assembly resolutions, having taken up for debate and made recommendations on a broad range of matters of international concern, including those issues that straddle national borders, such as climate change, human rights, poverty, income distribution, gender equality, rule of law and the like, and having mobilized public opinion in support of the goal of strengthened international cooperation. As the profile of the WPA expanded, a case could be made to move to a system that determined membership in the body solely on the basis of population, but in a nonlinear way, relying on the principle of degressive proportionality, meaning that smaller states would be entitled to more seats than would be called for under a system that allocated places strictly in proportion to their population. One such option would be the so-called Penrose method which assigns seats in relation to the square root of the country’s population, rounded to the nearest million, subject to the proviso that all countries will be entitled to at least one member. Table 5.2 shows that two countries, China and India, accounting for close to 37 percent of the world’s population, would have a total of 74 members, or slightly over 9 percent of the membership, each of whom would represent some 37 million people. The Penrose method therefore has the effect of reducing further the share allocated to the most populous states, as reflected in the larger number of people represented by each WPA member.

Table 5.2 UN member state representation in a WPA: Seat distribution as per Penrose population¹

Seats per nation	Number of nations	%	Number of seats	%	Population in millions	%	Average population per seat
1	53	27.5	53	6.7	36.81	0.5	0.7
2–3	65	33.7	162	20.4	444.39	5.9	2.7
4–9	60	31.1	344	43.2	2126.18	28.4	6.2
10–20	13	6.7	163	20.5	2154.98	28.8	13.2
21–37	2	1.0	74	9.3	2725.58	36.4	36.8
Total	193	100.0	796	100.0	7487.94	100.0	9.4

1 Penrose population is defined as the square root of a country’s population in millions.

We have presented the above two scenarios to underline that there is a range of possibilities for the determination of membership shares in the WPA. The issue is partly technical and partly political. The European Union does not use a fixed formula to determine the relative representations of national deputies in its parliament; country shares are periodically negotiated and some nontangible factors may enter into the consultations, affecting the ultimate outcome. While it will be necessary to come up with a membership mechanism that will be perceived as reasonably objective, fair-minded, and enhancing the credibility of the WPA before the public, a considerably more important set of issues will be those concerned with the functions of the WPA, its role within the UN system, its relation to the General Assembly, and the role it would play in strengthening support at the global level for the United Nations.

Schwartzberg envisages an ultimate transition for the WPA where membership in it would be completely delinked from the nationality of its members. Abstracting from national borders, one would divide the world into a sufficiently large number of electoral districts and elect members for the WPA in each district, broadly in conformity with the principle of one-person-one-vote. We do not believe that this approach would be feasible in anything like a reasonable time frame as it would likely skew the membership of the WPA toward the more populous states and thus would be resisted by many member states. Even in the European Parliament, already operating under a system of broad degressive proportionality, the criterion for membership is still based on the nationality of candidates. What is likely to happen in the EU – and could thus be a harbinger for the future as regards the whole world – is that with increased intra-EU migratory flows, there will be shifts in the composition of national populations over time with, for instance, a significant proportion of the population of Spain, say, being of non-Spanish origin, mainly from other EU states. Made eligible to vote and to be voted for, one could imagine a situation where Spain’s WPA contingent could have a significant number of non-Spanish members. Something like this, of course, has already happened within national territories; there is no impediment whatsoever for a member of the Spanish parliament representing, say, Madrid, to be a former resident of Barcelona or Bilbao. As of now, the only requirement is that he/she be a Spanish citizen. In keeping with this analogy, one would say that in that distant future, the only requirement for membership in the WPA would be that the person be a world citizen.

One important question to settle over the longer term is whether the WPA would retain indefinitely its role as an advisory body, with the locus of political power remaining firmly in place with the General Assembly, whose members would, as noted earlier, be ultimately elected by popular vote. And, if the answer to this question is no, suggesting in time a more political role for the WPA, how would these powers relate to those already granted, in a revised Charter, to the General Assembly? We do not think that this difficult issue needs to be decided now. There is considerable merit to the idea of introducing within the UN the institutional infrastructure for an advisory mechanism, as soon as possible, that more fully reflects the aspirations and priorities of the people, not just nation states as is the case with the General Assembly today. If the UN Charter amendments that would make it possible to introduce a system of weighted voting in the General Assembly are a longer-term goal, then the coming into being, in a much shorter time horizon, of a WPA with extensive advisory powers is an initiative worth pursuing on its own merits. Whether to grant the WPA powers that transcend the merely advisory is a decision that can be taken after the General Assembly is in operation as a budding world legislature, with narrowly defined powers in the areas of peace and security and management of the global environmental commons, under a system of weighted representation. What is clear, however, is that a WPA in operation would be an excellent preparatory step for the eventual emergence of a General Assembly with legislative powers.²⁶

6 Advisory Mechanisms to Support Global Policymaking

Science and technology, as part of their contribution to economic and social development, must be applied to the identification, avoidance and control of environmental risks and the solution of environmental problems and for the common good of mankind.

Stockholm Declaration 1972, Principle 18¹

We must … base our analysis in credible data and evidence, enhancing data capacity, availability, disaggregation, literacy and sharing.

UN 2014²

On an institutional level, a global entity with a strong scientific advisory capacity is needed to streamline reporting and decision-making processes, including the voices of non-state actors. It must coherently link environmental issues to social and economic priorities, for none of these can advance in isolation.

Bahá’í International Community, 2008³

The legislative function in the reformed United Nations, whether solely in the General Assembly or also with a World Parliamentary Assembly (WPA), will need a number of supporting advisory mechanisms if it is to exercise its broad responsibilities effectively in the global interest (e.g., for specialized scientific, technical, and other expertise). A strong civil society voice including nongovernmental organizations (NGOs) has been shown to contribute constructively to global policymaking. A broad scientific advisory process is also needed to provide authoritative reports on the state of the planet and to prepare reports on emerging or problematic technologies that may require global legislative action. An Office of Ethical Assessment could alert legislators to the ethical implications of issues under consideration.

A Chamber of Civil Society

Richard Falk and Andrew Strauss published an insightful article titled “Toward World Parliament” in the journal Foreign Affairs in which they made the case for the creation of a second chamber, deriving its authority directly from organized global citizenry, within the UN and supporting the UN General Assembly.⁴ The post–Cold War period has witnessed what Jessica Mathews called “a novel redistribution of power among states, markets, and civil society. National governments are not simply losing autonomy in a globalized economy. They are sharing powers – including political, social, and security roles at the core of sovereignty – with businesses, with international organizations, and with a multitude of citizens groups, known as NGOs.”⁵ The Commission on Global Governance, co-Chaired by former U.S. Secretary of State Madeleine Albright and former Nigerian Foreign Minister and UN Under-Secretary-General for Political Affairs Ibrahim Gambari, also called for the facilitation of practical contributions by elements of civil society within a reformed UN system.⁶ The proposal for a Civil Society Chamber or permanent Forum would formalize the May 2000 UN Millennium NGO Forum where Secretary General Kofi Annan invited 1,350 individuals representing a broad spectrum of civil society organizations to consult on critical global problems and to present recommendations to the Millennium Summit of Heads of State, the largest such gathering ever.

The members of this Chamber would not represent their respective states but would rather serve as advocates of particular issues of global concern that transcend national borders, from the environment and management of the global commons, to human rights, to world peace and security, gender equality, and the global fight against corruption, to name only a few. NGOs could be accredited for membership using an enhanced version of current UN accreditation procedures under ECOSOC and other UN bodies/initiatives. Falk and Strauss did not provide specific proposals on how to go about electing the members of this Chamber and how membership would be distributed across thematic areas. But there are currently some 5,000 NGOs with consultative status at ECOSOC and it should not be an insurmountable problem to come up with criteria that might allow choices to be made to elect some 700–800 members to cover a representative spectrum of issues of global concern. For the 2000 NGO Forum the UN invited two groups of NGO representatives: Those from organizations with consultative status with ECOSOC, and those accredited to thematic UN conferences during the 1990s. However, NGO representatives to the Chamber could also be selected by alternative criteria, including possibly by a representative, independent international expert appointment committee, and/or some form of popular vote where such elections could take place freely, without government interference, while also ensuring broad thematic representation.

Such an initiative could begin as a Forum, meeting regularly, and would recognize that solutions to some of our most critical problems require multistakeholder engagement. Over time, it could facilitate the emergence of a Chamber of Civil Society which would also play a central advisory role with respect to the General Assembly.

Addressing Global Catastrophic Risks

The ultimate goal of this dimension of UN reform will be to arrive at an effective decision-making capacity to address global challenges, able to enforce binding policies and legislation necessary to control and hopefully avert them. Such reforms will need sufficient legitimacy to be able to build wide public support for the Chamber’s proposals and decisions, which will need to place the global interest above the particular interests of powerful governments, businesses, and economic actors which may resist such changes in the collective public interest. While it will take time to reach this stage of maturity in global governance, much can be done to prepare the foundations for an effective legislative process.

A Chamber of Civil Society would be one arena for creative and constructive debate to build consensus across a wide range of stakeholders. A number of additional supporting mechanisms will be necessary to support this process, many of which can be created without waiting for reformed mechanisms to be fully in place, and which could even hasten the process. The preparation of reforms and other initiatives in the area of international cooperation requires steps of investigation, exploration of alternatives, consultation with stakeholders, and the preparation of documents capturing the emerging consensus, before it is debated in a decision-making setting. Even when binding understandings are not yet possible, the precise definition of problems and risks can help to push voluntary action by governments and other actors. Advisory bodies would be made up of individuals chosen primarily on the basis of professional credentials and a credible track record of expertise. They could initially mainly focus their efforts and attention on a small set of pressing global catastrophic risks, including climate change and the whole range of issues associated with the deterioration of the environment, nuclear proliferation, and the peace and security challenges this raises, as well as the broader set of economic development problems stemming from poverty and worsening trends in income distribution.

There is an excellent precedent for such an approach in the Intergovernmental Panel on Climate Change (IPCC), created in 1988 by the United Nations Environment Programme (UNEP) and the World Meteorological Organization (WMO) to prepare an agreed scientific basis for actions to address climate change. Its early reports helped to provide the impetus for the adoption of the UN Framework Convention on Climate Change (UNFCCC) signed at the Rio Earth Summit in 1992, and subsequent reports built the momentum for the adoption of the Paris Agreement in 2015. Its experts are nominated by all the world’s governments but participate in their independent capacities as experts. They review all the relevant scientific literature, assess it through open peer-reviewed processes, and their summary conclusions are reviewed and endorsed by all member governments, seeking to ensure that their conclusions represent the consensus on the best science available, as illustrated by their most recent special report.⁷

In the scientific domain beyond the most urgent, global catastrophic risks, the General Assembly would also need a number of general supporting advisory mechanisms to provide additional specialized scientific, technical, and other expertise. For example, a broad scientific advisory process would be required to provide authoritative reports on the state of the planet, building on more specific advisory bodies such as the existing IPCC, and the comparable Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES). For climate change, for example, it will be necessary to determine the planetary limits for greenhouse gas concentrations as the basis for negotiations on the allocations for each country to respect those limits, as only objective science can provide a sufficient basis for the difficult sharing of responsibilities to return within those limits. Similar scientific assessment processes will be needed for other global risks, such as global pollution risks from chemicals and nuclear radiation, the management of plastics and other persistent wastes, the need to remain within other planetary environmental boundaries such as for biogeochemical cycles, and the management and equitable distribution of the planet’s natural resources and sources of energy. Global dimensions of land use, freshwater supplies, the atmosphere and the oceans will eventually need to be covered. This will require groups of experts of the greatest knowledge and confidence, similar to those making up the IPCC, in all the relevant domains, to ensure that decisions are taken and revised as necessary based on the best information available. Such groups could be established for each global domain or risk identified.

A similar advisory process for the risks of new technologies in an Office of Technology Assessment will be needed to prepare reports on emerging or problematic technologies that may require global legislative action, such as geoengineering,⁸ genetic modifications and new creations, nanotechnologies, access to and security of information and communications technologies, the damaging manipulation of public opinion, and uses of artificial intelligence, among others. The combination of information technologies and biotechnologies with artificial intelligence risks marginalizing masses of people and making their jobs irrelevant, while collecting more information about entire populations, making them passive consumers easily manipulated and controlled. The whole process of governance could be transformed, undermining democracies and fostering dictatorships by making extreme centralization possible; yet the development of these technologies is largely in the private sector beyond any regulation or control.⁹ Proper assessment of the risks would support the necessary global legislation to regulate the handling and ownership of data and ensure that technological developments support rather than undermine the common interest.

Even social and economic challenges can present global risks that need to be assessed objectively, far from partisan or ideological considerations, such as the impacts of and solutions to extreme economic inequalities (Chapter 14), or the protection of and assistance to migrants and displaced persons whose numbers will increase dramatically if climate change and resource destruction are not brought rapidly under control (Chapter 17). The inequalities that continue to drive excessive rates of population growth beyond what resources can support need to be addressed so that the human population can be brought naturally back into balance with the carrying capacity of the planet. Authoritative reports on these issues could help to build concerted global action to reduce the risks.

An ethical advisory process in an Office of Ethical Assessment would also be useful to remind decision-makers of the fundamental values and ethical principles accepted by all governments in the various international resolutions, statements, and authoritative reports, and to provide insights on the ethical implications of issues under consideration, such as impacts on the overall security situation, broadly defined, on human rights and on future generations.

One cannot overestimate the impact that a global consultative process operating on the basis of scientific evidence and driven by considerations of the public global interest (rather than allegiance to narrower priorities, which is often the subtext to discussions motivated by national sovereignty) would have in changing the current dynamic of large-scale inertia on the part of governments to rise to confront the critical problems that we face. A WPA and/or Chamber of Civil Society would establish a direct connection between the UN system and the global citizenry, which at the moment either does not exist or is too weak to make a reliable difference. Having a larger measure of democratic legitimacy, its deliberations and recommendations would be imbued with a degree of credibility and urgency that existing organs such as the Security Council and the General Assembly have lacked, at great cost to global welfare and our collective future. This could thus become a powerful catalyst for actual change across the global governance system.

Enhancing UN Legislative Capacity to Consolidate Global Solidarity and Community

In his persuasive case for the establishment of a WPA, Dieter Heinrich sees this body as a powerful catalyst to enhance the quality of the debate about the nature of international cooperation and the extent to which our current global order still serves the interests of humanity. An excessively state-centric ideology, which dominated the debates that took place in the period leading to the founding of the United Nations and that have dragged on since 1945, is not only inherently anarchic but is no longer a reliable basis to confront and to manage the problems that assail the world. In his view, the fundamental question that we need to ask is: Is the world a community of peoples or a collection of sovereign states? And is the only way to serve effectively the interests of citizens – and national communities themselves – in an increasingly interdependent world exclusively through the actions of national governments? The answer to this question is clearly no; this has been reflected in the growing recognition that there are global interests that transcend national borders, and that governments are increasingly impotent to deal with a range of problems that straddle national borders. The state-centric predilections that have underpinned our global order in recent decades can be seen as anti-democratic as they fail to recognize that, ultimately, sovereignty vests in the people – in this case, the global citizenry – rather than in the states that properly should be vehicles of the public trust, committed also to solving international problems.

On the occasion of the 2000 Annual Meetings of the World Bank and the IMF in Prague, Vaclav Havel, the then president of the Czech Republic and one of Europe’s most enlightened political leaders, said that the time had come “to address another restructuring, concerning the system of values on which contemporary civilization rests.” In practice this would mean adopting a system of values that is consistent with the emergence of a rapidly integrating and interdependent community of nations. Havel’s vision of humanity desperately in need of a new concept of global order finds resonance in the writings of anthropologists, for many of whom the notion of “the psychic unity of mankind” is nothing new. George Murdock claimed that “all peoples now living or of whom we possess substantial historical records, irrespective of differences in geography and physique, are essentially alike in their basic psychological equipment and mechanism, and the cultural differences between them reflect only the differential responses of essentially similar organisms to unlike stimuli or conditions.”¹⁰ And Craig Venter, one of the scientists who led the effort to map the human genome, declared that “there is only one race – the human race,”and that if one asks what percentage of our genes is reflected in our external appearance, the basis by which we talk about race, the answer seems to be in the range of 0.01 percent.¹¹

It may yet be many years before the generality of humankind becomes conscious of the scientific basis of its “oneness,” but it is not too early to cultivate the values of shared human identity. We need to develop broader loyalties that correspond to our newly acquired psychic unity. For the benefits of globalization to be fully realized, we need to acquire a sense of solidarity that extends to the whole human family, not just the members of our own particular tribe. Many philosophies and faith traditions have principles that will support the development of this vision. Pope Francis has written: “There has been a growing conviction that our planet is a homeland and that humanity is one people living in a common home … . Interdependence obliges us to think of one world with a common plan [original emphasis].”¹² A central principle of the Bahá’í Faith is that “the earth is but one country and mankind its citizens.”¹³ The English mathematician and philosopher Bertrand Russell spoke of the need to “expand our mental universe” to match the increasingly global vision provided by scientific advancement and discovery. He said that our sense of collective well-being would have to extend to the whole of humanity as it was evident that human society was increasingly behaving as a single organic entity. These observations, made well over half a century ago, are self-evident in the age of globalization. Strengthened supporting mechanisms such as a WPA and a Civil Society Chamber would be a powerful symbol that national borders are, when it comes to our shared global challenges and shared human identity, contingent, that they have contributed to overemphasizing ultimately superficial and artificial distinctions, and that “world citizenship” may in fact be a legitimate and meaningful concept, reflecting a gradually emerging set of broadly shared values. The establishment of these broader solidarities, incarnated in novel international bodies with greatly enhanced effectiveness as described, would be a signal step not only in imbuing the United Nations with a healthier dose of democratic legitimacy than it currently has, but it would also strengthen the architecture of global governance to tangibly improve the lives of all the peoples of the world.

7 UN Executive Council: Beyond an Outdated Paradigm

The proposition, incredible as it may seem, is that any one of the Big Five may, by its sole fiat, paralyze the whole world organization.

Grenville Clark, 1944¹

Perhaps the greatest weakness in the present UN Charter – with respect to its essential function to maintain peace and security in the world – is the Security Council as currently configured, and in particular the right of veto maintained by the five permanent members, the “P5” (China, France, Russia, the United Kingdom, and the United States).² The Security Council is the only UN organ whose decisions are legally binding on all member states, and which can authorize military action and other invasive measures to enforce its decisions.³ Yet it is unfairly constituted, and its essential legitimacy is increasingly called into question. Moreover, the type of geopolitical “power politics” that have often been channeled through the Security Council (incarnated in the very notion of a “P5” group of military/economic powers) is a troubling anachronism. Rather, international solidarity and intensive cooperation among states with disproportionate economic and other resources – such as China and the US – are crucially needed to confront our global challenges.⁴

Older and outdated definitions of sovereignty assert the right to make war to defend “national interests” or to extend power or territory by force. The UN Charter consciously sought to put an end to these aspects of state behavior. However, the five victors at the end of World War II (and in particular the core “Big Three”) insisted on maintaining a type of “absolute” national sovereignty over the new global body with their veto power, inserting a fatal flaw into UN implementation of the concept of collective security, and throughout Charter architecture.

Subsequent rivalries and ideological differences between the permanent members have frequently paralyzed Security Council action when this was deemed to be in the interest of one or more of the P5.⁵ The desire to maintain hegemony, to protect or further self-interest, to destabilize others, to avoid criticism or accountability, have all prevented action for collective security or on other important matters, allowing too many conflicts to flourish and undermining the international rule of law. Fifth High Commissioner for Human Rights Navi Pillay has noted of the Security Council that: “[s]hort-term geopolitical considerations and national interest, narrowly defined, have repeatedly taken precedence over intolerable human suffering and grave breaches of – and long-term threats to – international peace and security,” noting crises in Afghanistan, Central African Republic, Democratic Republic of Congo, Iraq, Libya, Mali, Gaza, Somalia, South Sudan, and Sudan, as illustrating the international community’s systemic failure to prevent conflict. Speaking directly to the Security Council, Pillay noted: “I firmly believe that greater responsiveness by this council would have saved hundreds of thousands of lives.”⁶

The blockage has extended to denying the Security Council (and hence the UN as a whole) effective means to enforce its decisions through adequate international forces ready to respond rapidly to defuse a crisis or to keep the peace. Agreements under Article 43 of the Charter, where all members of the UN were meant to make available to the Security Council armed forces, assistance, facilities and other support to ensure the even-handed maintenance of international peace and security, were never completed: it was the responsibility of the Security Council to lead and facilitate the negotiation of these agreements “as soon as possible.” Hence, “one of the most important innovations of the UN Charter, as compared to the Covenant of the League,” remains unrealized.⁷

As described in discussion of the General Assembly (see Chapter 4), the veto has often been used and misused throughout the history of the UN. For a time in the 1990s it looked as though the permanent members might begin a new pattern of focused collaboration and voluntarily restrain their use of the veto as a first step forward.⁸ There have also been recent initiatives to request the P5 to voluntarily abstain from using their veto power in the context of addressing situations of mass atrocity; a proposal that has been supported by one of the P5 veto-bearing members, France.⁹ UN observers have recently noted, however, that China, Russia, and the United States have shown signs of renewed efforts at geopolitical dominance, with commentators speculating as to a new “Cold War” and/or a possible “Thucydides Trap” (between China and the US),¹⁰ with these countries again beginning to use their veto more frequently, to advance individual agendas or to counter each other.¹¹ There is no sign of this attitude changing in the immediate future.¹² Indeed, a recent Security Council resolution on Syria, calling for a 30-day ceasefire, was ignored with impunity even by members who voted for it, discrediting the Council further.¹³

Any amendments or alterations to the Charter under Articles 108 or Article 109 require ratification by all the permanent members of the Security Council, ensuring that they can block the removal of their right of veto as well as improvements to the UN Charter architecture itself. This ensures that the P5 may regularly give primacy to perceived national interests over the most essential collective responsibilities owed to the United Nations and to the international community generally.

The special status of the permanent, veto-bearing members of the Security Council in fact is in tension with the principle of “sovereign equality” of states as equal subjects of international law, bearing rights and responsibilities, as set out in Article 2(1) of the Charter. This notion was an important and largely novel concept introduced with the establishment of the UN, transcending classical notions of sovereignty founded on unfettered and relative (military) power among states, coexisting or colliding in an essentially anarchic environment. This apparent contradiction within the Charter’s own terms, with the unique position accorded to the P5, has been justified by some on the basis that “states bearing the greatest institutional responsibility should also have the greatest say in critical disputes,” as they undertake exceptional responsibilities in service of the whole international community.¹⁴ Unfortunately, the ideal of impartial service to the international community by a unified P5, in accordance with the purposes and principles of the Charter, has been upheld all too infrequently; the inherent contradiction within the UN system represented by this privileged status has led to an eroded legitimacy and faith in the collective mechanisms established by the Charter, and in the UN itself.

Related to the issue of the legitimacy of the current permanent members of the Security Council are the criteria that have been or might be applied to determine which “special” nations should be part of this narrow group, as shown in the lengthy debates around the potential expansion of the Security Council and its permanent members that have occurred since 1945. The “Big Three” victors of World War II initially formed the nucleus of permanent members, after which an invitation was extended to China (as one of the envisioned “Four Policemen”) and then additionally to France, in a process showing the largely negotiated/ad hoc nature of the Council’s original composition. The precursor League of Nations Council, while consisting of representatives of the Principal Allied and Associated Powers emerging from World War I (France, the UK, Italy, and Japan), allowed for the addition of permanent members according to shifting political circumstances on the international landscape. It would be helpful if such contingent or impressionistic criteria, based on historical events¹⁵ or notions of perceived shifts of sovereign power and influence, were to be replaced with more modern and objective standards of membership (see the proposals below). This evolution would move the international community further beyond an era characterized by fluctuating alliances and anarchic state competition, consonant with a rule-based international order and with the significant enhancements of UN machinery such as those suggested in this book. The goal should be to ensure a principles-based international architecture with checks and balances and strong international institutions to protect against abuses of power by any actor. Brute force has been discredited as a basis of influence or claims to special international privileges,¹⁶ and this norm should be clearly reflected in international institutions.

The origins of this critical flaw in the Security Council have been discussed in detail in the historical Chapter 2 of this book. Only such a weakness at the heart of the system would allow for US Senate approval and satisfy the exigencies of Stalin, whose endorsements of the Charter were essential. However, the vocal opposition to such a configuration was clear among the majority of states at negotiations in San Francisco, and states only agreed to the arrangement based on the inclusion of Article 109(3), which promised a general Charter review conference within ten years of its adoption.¹⁷ Such a general review conference has, of course, never been held. Three quarters of a century later, it is irresponsible to allow such a central flaw to persist in any system of global governance, in particular given the legislative history of this compromise. If it is left as it is, the international community runs a risk – particularly given current trends – of enabling a further regression in international power politics to a more primitive time, giving tacit acquiescence to an outdated paradigm that undermines the rules-based international order that we are meant to be building.

The Security Council at Present

Under the UN Charter as it stands, the enumerated functions and powers of the Security Council are:

• to maintain international peace and security in accordance with the principles and purposes of the United Nations;

• to investigate any dispute or situation that might lead to international friction;

• to recommend methods of adjusting such disputes or the terms of settlement;

• to formulate plans for the establishment of a system to regulate armaments;

• to determine the existence of a threat to the peace or act of aggression and to recommend what action should be taken;

• to call on members to apply economic sanctions and other measures not involving the use of force to prevent or stop aggression;

• to take military action against an aggressor;

• to recommend the admission of new members;

• to exercise the trusteeship functions of the United Nations in “strategic areas”;

• to recommend to the General Assembly the appointment of the Secretary General and, together with the Assembly, to elect the Judges of the International Court of Justice.¹⁸

It is precisely in these areas of proactively maintaining peace and security, resolving disputes, regulating armaments, applying sanctions and taking military action if necessary, that the UN system has so frequently failed to take action when needed, as crises today around the world illustrate only too well.¹⁹ We will elaborate on these issues in the Chapter 8, where we discuss the extent to which the UN has succeeded (or not) in fulfilling its peace and security mandate.

Past Proposals for Security Council Reform

Everyone, it seems, except those most interested, have acknowledged this fatal flaw in the UN Charter. The configuration of the UN Security Council and its permanent members has been a frequent subject of reform efforts within the organization since 1945, with more recommendations for Council reform than any other UN body.²⁰ As the Security Council is a significant central power in the UN, states outside the permanent members have been struggling for many years to acquire similar prerogatives, preferably with permanent seats and possibly with a veto, to acknowledge their importance as contributors to the UN budget or as the most powerful states in their region. This fight for power and prestige, seemingly far from a motivation to create an effective body for the UN’s most important and sensitive function, is fueled by the injustice in the present unbalanced membership.²¹

Calls for reform have been raised, for example, in the General Assembly citing Article 2(5) of the Charter, where all members of the UN are obligated to give the organization “every assistance in any action it takes in accordance with the […] Charter,” with states noting that “the effectiveness, credibility and legitimacy of the work of the Security Council will be enhanced by its improved representative character, its better ability to discharge its primary responsibility and to carry out its duties on behalf of all members,” citing the “special responsibility” of the P5 to further the principles of the UN.²² The General Assembly has similarly expressed frustration with deadlock in the Security Council and its inaction in fulfilling international responsibilities in specific situations, for example, in its 1950 “Uniting for Peace” resolution (see Chapter 4) . In this resolution it took the unprecedented step of suggesting that the GA make “appropriate recommendations to Members for collective measures, including … the use of armed force,” due to lack of unanimity of the permanent members of the Council and thus their failure to act in response to the situation on the Korean Peninsula.²³

The most significant reflection on the issue of Security Council reform within the UN began in 1993, when the General Assembly established an Open-Ended Working Group on the Question of Equitable Representation on and Increase in the Membership of the Security Council. After a lack of progress, the UN Secretary General appointed the High-level Panel on Threats, Challenges and Change in 2003, which proposed two possible reform options in 2004. Various groups of states, pushing their own agendas, have also made proposals, but their conflicting priorities have always prevented consensus on changes and led to the repeated failure of reform efforts.²⁴ For example, a group of African countries (representing the African Union) advocated for two permanent seats with the veto (just like Europe) and consistently refused any compromise, including in 2005 and 2013.²⁵ It has been observed that “[e]ver since the Great Powers gave birth to the United Nations, the veto debate has been extremely emotionally charged. Often the debates have resembled those of a squabbling couple, with both parties – the P5 and other UN Member States – presenting their views and not giving much attention to the validity of the other’s arguments.”²⁶ Between regional rivalries, political disputes, inflexible positions, and the preference of the five permanent members for the status quo, none of these proposals have gone anywhere, leaving five states with blocking power over the whole UN system. A new paradigm, with a principles-based approach, is needed in order to break the impasse, and to ensure an effective UN executive body.

Among the more recent proposals emanating from an academic, Schwartzberg has devoted substantial attention to reforming the Security Council.²⁷ His carefully reasoned proposals focus on a revised Council membership comprising representatives from 12 regions, in which each regional representative casts an objective, mathematically determined weighted vote. He carefully composes regions by both geographic and political/cultural interests, seeking both demographic and economic balance, aiming to increase the attractiveness of his proposals to most, if not all countries, to overcome their resistance to change. He aims to see delegates more democratically elected, with a greater focus on meritocracy and legitimacy.

He also proposes to circumscribe and even phase out the veto, while acknowledging the difficulty in doing so. For example, in a transition period over the first five years, two negative votes by permanent members would be required for a veto, then three for the next five years, and four for the last five years. Another suggestion would be to narrow the range of issues subject to a veto, also progressing over time. This could start by prohibiting the use of a veto when a permanent member is a principal party to any issue, extending then to egregious human rights violations including genocide and ethnic cleansing (following on recent similar proposals), the use of inspection teams and monitors, the application of economic sanctions, and finally, authorization of armed intervention in an area of actual or impending military conflict.

The resistance to change by permanent members of the Security Council with a veto will likely continue to be a stumbling block to the proposals made here, which is why we discuss as a possible alternative the replacement of the UN Charter with a new Charter for a successor organization, by a process escaping from the veto and the paralysis it has engendered (see Chapter 21). While it might be difficult to ignore all the present permanent members in implementing such a change, moving forward without one or two in the short term might be sufficient to bring them to the table. A severe crisis might also catalyze an acknowledgment that the advantages of a legitimate, representative and functional UN executive body outweigh those of current anachronistic privileges, which breeds deadlock and dissatisfaction within the international community.

Another argument for fundamental reform of the Security Council provisions of the UN Charter relates to the overall systemic reform proposals set forth in this book, which seek to adapt the UN institutions to the challenges of the 21st century. The permanent need for a Security Council as the central authority in the UN system assumes that nations will always want to make war, and that the most important role of global governance will always be to prevent war between nations. The other mechanisms proposed in this book seek to create the conditions necessary for effective governance, with binding legislation that is commonly accepted, a judiciary able to resolve differences and impose its decisions on disputing parties, and an executive with sufficient force at its disposal to employ proportionate coercive measures against a recalcitrant government. With these measures in place the threat of interstate war will gradually fade even further, to be replaced by a new wave of positive efforts to build a prosperous, cooperative international order. The notion of a Security Council as currently incarnated should become as obsolete as the Trusteeship Council is now, although its functions will likely need to be retained for a transitional period. We therefore suggest that a renewed UN system do away with the Security Council in its name and current form and implement a set of adjusted executive functions, eliminating the concept of permanent members and the veto at the same time.

Successor Organ: UN Executive Council

Our proposed Charter reform would replace the Security Council with an Executive Council composed of 24 members. As the General Assembly would itself be reformed to become a more balanced and representative body of all the governments and peoples of the world, it would become the main seat of power in the reformed UN. The Executive Council, in a range of matters, would operate in cooperation with and under the jurisdiction of the General Assembly, and its main focus would be shifted to implementation, management and effective operation of the United Nations, with collective security implementation as only one of a range of executive functions.

The composition and organization of the Executive Council would reflect the principles used in determining the national composition and representation of the reformed General Assembly (see Chapter 4). This means that each country’s voting power in the Executive Council would be determined as the arithmetic average of three factors: its share in total world population, its share in world gross domestic product (GDP) and a membership share that is the same for all countries, set at 1/193 percent. Membership in the Executive Council would therefore be of two types: the United States, China, India, the European Union and Russia each would be allotted one seat. The other 19 seats would be allocated to the other 161 members, clustered regionally and consulting among themselves on an on-going basis in relation to the matters before the Executive Council. Each seat would have the same weighted voting power as its governments have in the reformed General Assembly. So, for instance, drawing from the data in Table 4.1 in Chapter 4 and Annex Table 1, the United States would have a voting power of 8.283 percent, China’s would be 11.993 percent, Russia’s would be 1.680 percent and the European Union’s would be set at 14.374 percent. These weights would be revised every ten years, to reflect changes in world population and a country’s relative GDP share, as noted in the revised Article 9(3) presented in Chapter 4.²⁸ All governments would therefore have a voice in the Executive Council.²⁹

Other proposals for representation on the UN’s apex executive body have been put forward for consideration, such as the elaborate representation by regions proposed by Schwartzberg for the Security Council, as described above.³⁰ An election of Council members by the General Assembly was also proposed by Clark and Sohn at a time when the UN was much smaller, with the three most populous states being continuing members and eight of the next 16 largest nations represented in rotations of four years.³¹ The remaining 13 members would be chosen by the Assembly from the other member nations, also in 4-year rotations. Whatever the formula chosen for a re-constituted UN Executive Council, careful thought should be given to ensure depoliticization, fairness and functionality.

The paralyzing veto of the five permanent members of the Security Council should be eliminated.³² Instead, decisions of the Executive Council on important matters as defined in an amended second paragraph to Article 27 of the UN Charter, would be by a two-thirds majority of the voting power of all members, possibly including a majority of the eight members of the Council with the highest populations, and a majority of the 16 other members of the Council. For normal business, decisions would be taken by consensus or by majority vote, as necessary. Subject to its ultimate responsibility to the General Assembly, the Executive Council, as the executive arm of the new United Nations, would have broad authority to monitor, supervise and direct various aspects of the work program in the areas of security, conflict prevention and management of the global environment in particular, as well as other areas of priority identified by the General Assembly. The Secretary General could serve as the chair of the Executive Council, to provide coherence and continuity within the UN system, and to link to the UN Secretariat.

The Executive Council could take over certain specific current functions of the Security Council, such as recommending the admission of new members (as appropriate) and recommending to the General Assembly the appointment of the Secretary General. Its primary function, however, would be general organizational oversight and ensuring good governance, transparency, efficiency and coherence of an effective new UN system, including through administrative and other system-wide reforms. As one of its first tasks, it could conduct an executive review of the present multiplication of specialized agencies and convention secretariats, and propose consolidation or coordination, where necessary, while ensuring continuity in functions.

A related specific issue for the Executive Council could be to review (in consultation with relevant UN specialized agencies and other bodies) and, where appropriate, consolidate or replace the many different intergovernmental meetings, governing councils, conferences of the parties, and commissions that have proliferated across the intergovernmental system.³³ The latter has led, among other things, to the same governments sometimes taking incoherent and even contradictory decisions in different bodies with equal standing. There is clearly a place for regional debate, and a need for technical intergovernmental expertise and guidance in specific areas, but, where possible, the form and mandate of these intergovernmental mechanisms should be rationalized, along with the legislation that underlies them. Based on such reviews, the Executive Council could also recommend any necessary legislative changes to the General Assembly in its narrowly defined areas of responsibility for international security and the environment, aiming for coherent/consolidated global legislation to replace present ad hoc measures, international conventions and other multilateral agreements.³⁴ Some functions of intergovernmental debate and decision-making in these areas could be folded into the General Assembly’s own responsibility, and others continued in well-defined contexts through subsidiary bodies and mechanisms. Particularly small and developing states are disadvantaged with the requirement to be represented at so many meetings and would benefit greatly from systemic reforms to the present intergovernmental machinery.

As the Executive Council will focus on management of the UN System and the implementation of programs and policies as determined by the legislative branch, a transition should be organized to transfer the Security Council’s primary functions for peace and security to the General Assembly. The reformed General Assembly as a legislative body may be too cumbersome, especially at the outset, to respond rapidly in a crisis,³⁵ and even the Executive Council may not initially be well adapted to this role, requiring strong subsidiary, supporting bodies building on those already existing under the current Security Council and within the UN Secretariat.

The usual channel of governments bringing issues of peace and security to the Security Council has too often been framed by political or ideological biases that make consensus difficult. To improve management and the capacity for neutral response, initial review of security issues by the Executive Council could be supplemented by a smaller, expert-centered body (at arm’s length from political actors), within which no party to a conflict would have a decision-making role, in order to preserve its neutrality and to be able to make swift and transparent recommendations for rapid intervention for collective security or humanitarian protection in nascent conflicts before they get out of hand—just as police intervene to prevent or stop illegal acts within nations and communities. Such a body could have at its disposal powers to recommend or oblige a range of means of conflict resolution according to particular circumstances, from regional engagement/cooperation, investigation and trust-building, through binding judicial resolution or arbitration, to sanctions and enforcement by collective use of force.³⁶ This could be in addition to active supervision of the enforcement of decisions of the Executive Council, including those ensuring the enforcement of rulings of the International Court of Justice or other conflict-resolution bodies.

This could, for example, be the role of a new, consolidated Office for Peace and Security within the Secretariat with independent powers of investigation and reporting to ensure that the Executive Council has access to the best neutral information concerning any dispute. It would operate under the overall supervision of the Executive Council, and within the context of any additional legislation for this purpose adopted by the General Assembly. It could include restructured peace-keeping and peace-building functions as well as investigative and observer capacities and could manage the International Peace Force discussed in Chapter 8, with another branch of the Secretariat allotted the specific responsibility to formulate plans for the establishment of a system to regulate armaments (see Chapter 9).

In reassessing the current Security Council’s peace and security function, as defined under the present UN Charter, consideration could be given to creating a number of specialized offices for security to advise the Executive Council beyond the Office for Peace and Security. These offices would address other priority global responsibilities of the renewed United Nations: one for environmental security³⁷ and the other for social justice and security, including mass human rights violations, where intervention within or between states, according to strict criteria, may be required in the global common interest.³⁸ Although there may be overlap in these issue areas in practice and in specific situations, the three areas require quite different knowledge bases and technical responsibilities, and could each provide the action arm for a major global component of the UN, at least during a transitional period while interstate conflicts, cross-boundary impacts, and recalcitrant actors continue to contribute to international crises. Each would be able to either make authoritative recommendations, and/or to take certain binding decisions with relevant means of enforcement, subject to review as necessary by the Executive Council in consultation with the General Assembly. The possibility to submit a dispute to binding arbitration/adjudication, or to appeal to the International Court of Justice on legal questions, would be assured, but would not be suspensive in cases of urgency. It would be anticipated that the level of international conflicts would gradually decline under the new international system, rendering the security function progressively less necessary.

Well-known history (see Chapter 2) highlights the concerns already expressed at the time of the creation of the UN, by Grenville Clark and by many other influential political actors and commentators, that the concept of the Security Council as it currently stands was fundamentally flawed from the outset, only embraced in order to protect the prerogatives of the great powers, but leaving the organization itself hamstrung. The troubled history of unaddressed conflict, unimplemented provisions of the UN Charter under Security Council responsibility, and international deadlock on a range of humanitarian crises since the founding of the United Nations is a warning to correct this flaw and to create a more rational, coherent international executive body.

8 Completing the Collective Security Mechanism of the Charter: Establishing an International Peace Force

Here, then, is the problem which we present to you, stark and dreadful and inescapable: Shall we put an end to the human race; or shall mankind renounce war?… The abolition of war will demand distasteful limitations of national sovereignty. But what perhaps impedes understanding of the situation more than anything else is that the term “mankind” feels vague and abstract. People scarcely realize in imagination that the danger is to themselves and their children and their grandchildren, and not only to a dimly apprehended humanity. They can scarcely bring themselves to grasp that they, individually, and those whom they love are in imminent danger of perishing agonizingly … We appeal as human beings to human beings: Remember your humanity, and forget the rest. If you can do so, the way lies open to a new Paradise; if you cannot, there lies before you the risk of universal death … There lies before us, if we choose, continual progress in happiness, knowledge, and wisdom. Shall we, instead, choose death, because we cannot forget our quarrels? … We invite this Congress, and through it the scientists of the world and the general public, to subscribe to the following resolution: “In view of the fact that in any future world war nuclear weapons will certainly be employed, and that such weapons threaten the continued existence of mankind, we urge the governments of the world to realize, and to acknowledge publicly, that their purpose cannot be furthered by a world war, and we urge them, consequently, to find peaceful means for the settlement of all matters of dispute between them.

The Bertrand Russell–Albert Einstein Manifesto, July 9, 1955.¹

In this chapter we begin by highlighting the fact that proposals for the creation of an international security or peace force were actively discussed around the time of the establishment of the League of Nations and were taken up again in the period leading to the creation of the United Nations. We note that the UN Charter contains core, explicit undertakings in the area of peaceful settlement of international disputes (see Chapter 10) and what is now referred to as “peace enforcement,” and then describe the various instruments that were developed over time as the UN sought to give operational meaning to the peace and security principles embedded in the Charter. In this respect, we analyze the experience with peacekeeping operations and some of the lessons that can be drawn from their mixed success. We then analyze the extent to which there has been a fairly dramatic erosion in the effectiveness of the uses of warfare and violence to achieve particular national strategic objectives and argue that the current system of global security is absurdly costly in relation to the meager security benefits it confers. We then present a proposal – based on the work done by Grenville Clark and Louis Sohn in the 1950s/1960s – for the creation of an International Peace Force, to be established in parallel to a process of comprehensive international arms control (Chapter 9), and ensuring adequately strengthened mechanisms for the peaceful settlement of disputes(Chapter 10). Our proposal includes a discussion of a number of operational issues that emerge when considering the establishment of such a Force, many of them based on an assessment of several decades of experience with peacekeeping.

Early Attempts

The creation of an international military force to empower the League of Nations to secure the peace was actively discussed in the period leading up to the adoption of the League’s Covenant. A draft of the Covenant drawn up by former French Prime Minister Leon Bourgeois specified in considerable detail the military sanctions that would be applied against countries that disturbed the peace.² The Bourgeois Committee called for the creation of an international force or, as a second option, the setting up of a force made up of national contingents to be at the service of the League. A permanent international staff would provide for the organization and training of the force or coordinate the training of the national contingents and would be responsible for implementing whatever military action was ultimately endorsed by the League. Furthermore, the staff would also be given responsibility for monitoring the armaments of League members and the extent to which these were consistent with the Covenant’s disarmament provisions; it was understood that in this they would act with equanimity and independence.

According to F.P. Walters influential segments of public opinion in France “refused to believe that the League could ensure the world’s peace unless it possessed at least the rudiments of military power.”³ Although other countries supported the Bourgeois proposal, they were not willing to take an uncompromising stance on the issue, given adamant opposition on the part of the British and American delegations. President Wilson, in particular, had argued that public opinion in America would not accept foreign inspections of the American military establishment, a point shared by the British representative, Lord Robert Cecil. In the end, the idea was abandoned, not because in and of itself it lacked merit, but mainly because the strongest advocates of the League felt that domestic political considerations would not allow for this more ambitious vision of the League’s role in the maintenance of international peace. Bourgeois’ ideas, however, were not set aside entirely. Not only was he awarded the 1920 Nobel Peace prize for his ardent support of the League, but, at the 1932 Disarmament Conference held in Geneva the French Minister for War, Andre Tardieu, proposed that all major weapons systems of all member countries be set aside and used only under a League mandate and that an international police force be placed under the jurisdiction of the Council of the League of Nations, in a regime that would also involve compulsory arbitration and a more robust sanctions regime.

The French proposal, often associated with French Prime Minister Edouard Herriot, elicited a warm response from Albert Einstein, who on November 18, 1932, issued a statement in which he made a number of compelling points: “I am convinced that Herriot’s plan represents an important step forward with regard to how, in the future, international disputes should be settled. I also consider Herriot’s plan to be preferable to other proposals that have been made.” He then went on to say that in the search for solutions the framing of the question to be addressed was essential. Rather than asking “under what conditions are armaments permissible and how wars should be fought” he argued that the starting point must be whether nations were “prepared to submit all international disputes to the judgement of an arbitration authority,” which had been established by the consent of all parties seeking to establish security guarantees. He thought that:

the renunciation of unlimited sovereignty by individual nations is the indispensable prerequisite to a solution of the problem. It is the great achievement of Herriot, or rather France, that they have announced their willingness, in principle, for such a renunciation. I also agree with Herriot’s proposal that the only military force that should be permitted to have truly effective weapons is a police force which would be subject to the authority of international organs and would be stationed throughout the world.

He then went on to identify two ways in which the Herriot proposals could be improved. First, he thought that “the police formations should not be composed of national troop units which are dependent on their own governments. Such a force, to function effectively under the jurisdiction of a supranational authority, must be – both men and officers – international in composition.” Second, in respect of the French call to train militias he indicated that:

the militia system implies that the entire population will be trained in military concepts. It further implies that youth will be educated in a spirit which is at once obsolete and fateful. What would the more advanced nations say if they were confronted with the request that every citizen must serve as a policeman for a certain period of his life? To raise the question is to answer it. These objections should not appear to detract from my belief that Herriot’s proposals must be gratefully welcomed as a courageous and significant step in the right direction.⁴

The Bourgeois proposals, progenitors of the subsequent Herriot plan, had been put forward at a time when the outlines of the Covenant were still being formulated and thus could, at least in theory, be considered to have some viability. The French proposals in 1932 had little likelihood of being accepted as they would have involved a rewriting of the Covenant, something that the major powers were unwilling to contemplate. Furthermore, in putting forward these proposals and reviving the idea of an international police force, the French may have been partly motivated by their growing concerns about German militarism and the need, as they saw it, to continue to keep Germany tied to the stringent Versailles Treaty restrictions. Germany in fact soon left the League in 1933 and embarked upon a process of rapid military build-up.

In his comprehensive account of the League’s history Walters does point to the one and only – remarkably successful – international force assembled by the League in late 1934, to monitor and supervise the holding of a plebiscite in the Saar territory; a basin that had been part of Germany but had become a League mandate after the end of World War I. A contingent of some 3,300 troops made up of British, Italian, Swedish, and Dutch soldiers reached the Saar in December of 1934. Walters notes that:

From that moment all fear of disorder was at an end. The mere presence of the troops was all that was needed, and they were never called upon to use their arms. The relations between the different contingents were excellent throughout. Relations with the Saarlanders were also good: the local Nazi leaders tried at first to organize a boycott, describing the Force as a new army of occupation and ordering their followers to avoid all fraternization. But their efforts were a total failure. The troops enjoyed a popularity which they well deserved.⁵

The next instance of an active debate on the possible creation of an international security force was in the period leading up to the adoption of the UN Charter in 1945. We have already discussed in Chapter 2 how a bolder vision of the United Nations considered before the October 1943 Moscow conference had to quickly adjust to the requirements of the Soviet Union under Stalin and, increasingly, to perceptions of what, in due course, would be acceptable to the US Senate, whose ratification was essential to ensure the participation of the United States in the United Nations. Three individuals that made important contributions to this debate during this period and in the years immediately following the establishment of the United Nations were Granville Clark, Albert Einstein, and Bertrand Russell. In a way that was not the case during the discussions around the League’s Covenant, the draft UN Charter generated a great deal more informed debate, from individuals who were not necessarily aligned with particular governments, but were sympathetic to the efforts of President Roosevelt and his team to bring into being an international organization to secure the peace. The motivations varied, but very much at their center was the feeling that, with the arrival of nuclear weapons, the context for warfare had changed in a fundamental way. Nations had gone to war in decades and centuries past, or had threatened to do so, assured that the costs could be maintained within acceptable levels due to the implicit constraints imposed by the state of prevailing weapons technologies.

In his discussion of the rise and fall of the “war system,” Schell gives several fascinating (and not so well-known) examples of the inexorable logic of warfare in the pre-nuclear age. In 1898, France and Britain were, for several weeks “at the edge of war over a fetid swampland, which neither country valued,” a worthless piece of land in a remote area of Sudan called Fashoda. “The disparity between the puniness of the prize and the immensity of the war being risked in Europe disturbed even the most pugnacious imperialists” observes Schell.⁶ Since Fashoda, like Egypt, was on the road to India and India was the heart of the British Empire, the war logic dictated that it must be defended at all costs. In the end, though war orders were sent to the English fleet in the Mediterranean, conflict was averted at the last minute because the French backed down.⁷

A second example pertains to a Franco-Russian alliance negotiated in 1894 which envisaged all-out war against Germany in the event of an attack but did not specify what the aims of such a war would be. Clausewitz had taught that absolute war always needed to be subordinated to the strategic requirements of policy, but the treaty underpinning this particular alliance put forward the idea of war as an end in itself. This is how Schell puts it: “And when General Raoul Mouton de Boisdeffre, the principal architect of the treaty on the French side, was asked what Frances’s intentions regarding Germany would be after a victory, he replied, ‘Let us begin by beating them; after that it will be easy.’⁸ Regarding the war’s aim, Kennan concluded: ‘There is no evidence, in fact, that it had ever been discussed between the two governments.’”

Within a few weeks after the bombing of Hiroshima and Nagasaki, in an interview given to a United Press reporter on September 14, 1945, Einstein had expressed the view that “as long as sovereign states continue to have separate armaments and armaments secrets, new world wars will be inevitable.”⁹ A few weeks later Russell – who, over the years, maintained an active correspondence with Einstein – rose in the House of Lords on November 28 and said:

We do not want to look at this thing simply from the point of view of the next few years; we want to look at it from the point of view of the future of mankind. The question is a simple one: Is it possible for a scientific society to continue to exist, or must such a society inevitably bring itself to destruction? It is a simple question: but a very vital one. I do not think it is possible to exaggerate the gravity of the possibilities of evil that lie in the utilization of atomic energy. As I go about the streets and see St. Paul’s, the British Museum, the Houses of Parliament, and the other monuments of our civilization, in my mind’s eye I see a nightmare vision of those buildings as heaps of rubble with corpses all round them. That is a thing we have got to face, not only in our own country and cities, but throughout the civilized world.¹⁰

As noted earlier in this book, with his typical mathematician’s logic, Russell, in an article for The American Scholar in 1943/44 had written: “Wars will cease when, and only when, it becomes evident beyond reasonable doubt that in any war the aggressor will be defeated.”¹¹ Meaning that with an international security force effectively having a monopoly on the use of military power, no nation would use force against another nation because it would not have the means to confront a multinational response. Moreover, beyond responding to such a threat, many nations have increasingly internalized the values and principles of peaceful coexistence and the norm of international nonuse of force with the advent of the 1945 Charter (see Chapter 10); such an internalized value should continue to be consolidated in the future, making violations of international law in this respect an even more deeply held taboo.

Einstein expanded upon his earlier interview in a radio address on May 29, 1946, by stating:

The development of technology and military weapons has resulted in what amounts to a shrinking of our planet. Economic intercourse between countries has made the nations of the world more dependent upon one another than ever before. The offensive weapons now available leave no spot on earth secure from sudden, total annihilation. Our only hope for survival lies in the creation of a world government capable of resolving conflicts among nations by judicial verdict. Such decisions must be based upon a precisely worded constitution which is approved by all governments. The world government alone may have offensive arms at its disposal. No person or nation can be regarded as pacifist unless they agree that all military power should be concentrated in the hands of a supranational authority, and unless they renounce force as a means of safeguarding their interests against other nations. Political developments, in this first year since the end of the Second World War, have clearly brought us no closer to the attainment of these goals. The present Charter of the United Nations does not provide either for the legal institutions or the military forces which would be necessary to bring real international security into being. Nor does it take into account the actual balance of power in the world today.¹²

He then went on to suggest that the United States and Russia as the main victorious war powers could, by themselves, create the legal framework that would ensure universal military security.

Clark was no less active. As the main adviser to US Secretary of War Henry Stimson, Clark had been involved in most important decisions on the conduct of the war and had seen up close the dire consequences – human, economic, political – of global warfare. In the summer of 1944, when it became increasingly clear that the Allies would emerge victorious, Clark, who had spent several years in Washington as an unpaid public servant, staying with his wife at a suite at the St. Regis hotel, decided to return to law practice in New York and was told by Stimson: “Grenny, go home and try to figure out a way to stop the next war and all future wars.”¹³ Clark’s A Plan for Peace, published in 1950 contains a first set of fairly detailed proposals for the creation of a Peace Force attached to the United Nations;¹⁴ we will say more on this later in this chapter.

The UN Charter and the Peaceful Settlement of Disputes

The United Nations came into being against the background of over 60 million casualties, the destruction of significant portions of countries’ physical infrastructure, and the associated economic collapse. It is not surprising therefore that the Charter refers in high-minded language to the determination of the international community to “save succeeding generations from the scourge of war,” lays out various principles for the peaceful coexistence of its members and calls for the strengthening of existing mechanisms of cooperation “to maintain international peace and security.” Article 1 of the Charter, in particular, specifically refers to the UN taking:

effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to breaches of the peace.

The principles that are to guide United Nations actions in this area are spelled out in Chapters VI and VII of the Charter on the Pacific Settlement of Disputes (Articles 33–38) and Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression (Articles 39–51), respectively. The Articles embedded in Chapters VI and VII are an attempt to establish a foundation of legal and moral legitimacy to enable a range of UN actions intended to protect the peace. In the paragraphs that follow we will review briefly what mechanisms emerged, in practice and over time, to operationalize some of the noble sentiments contained in the Charter in this area, so central to what the UN was set out to achieve.

The peaceful settlement of disputes (Chapter VI) was seen as an essential element of avoiding armed conflicts (see also Chapter 10). However, at the insistence of the Big Four during the drafting stage of the UN Charter, Article 2(3) narrowed the scope of dispute settlement to international cross-border disputes, with internal disputes falling within the sovereignty of states.¹⁵ This was done to protect state prerogatives as most governments were unwilling, in 1945, to have an international organization interfering in internal disputes. Initially, this sharply curtailed the sphere of action of the UN, given that the overwhelming majority of conflicts in recent decades have been of an internal nature.¹⁶ And it also added an additional layer of complexity to potential UN responses given the nature of such internal conflicts, with the fighting often taking place between militias, armed civilians and guerrillas with ill-defined front lines and with civilians often being the victims of the brunt of the violence. These internal conflicts also proved to be destructive of state institutions in a way that traditional interstate conflicts with well-defined frontlines were not.

Article 33 of the Charter identifies the various mechanisms that are to be used by the parties to a dispute seeking to peacefully settle their differences. Article 51, however, allows for the interim use of countermeasures and a narrow but inherent right of self-defense by states, with an obligation to report such cases immediately to the Security Council so that it may take the necessary measures to secure international peace and security, in line with its authority and responsibility. In time, the United Nations developed a range of instruments aimed at resolving conflicts between and within states entailing aspects of preventive diplomacy, peacekeeping, disarmament, sanctions, and the like. It also sought to define and operationalize some of these instruments in a formal way, typically in the context of General Assembly resolutions. For instance, members could enter into negotiations to address various types of conflict – political, social, legal and so on. Negotiations are limited to the states concerned, which are empowered to “shape its outcome to deliver a mutually agreed settlement.”¹⁷ For their success, negotiations assume the willingness of states to compromise, but may imply the imposition of solutions on the weaker party. Thus, to take an example, a negotiation between China and the Philippines on the status of various small islands in the South China Sea might not lead to results satisfactory to the latter party, given the lopsided nature of both parties’ relative strengths.

In an inquiry or process of fact finding, the parties may initiate a commission of inquiry to establish the facts of the case, but the recommendations would not usually be legally binding. Mediation generally involves the good offices of a third party to assist in finding a resolution and to prevent escalation. It is seen as perhaps the oldest and most often used method for peaceful settlement and was enshrined in The Hague Conventions on the topic of 1899 and 1907. Conciliation is a combination of fact finding and mediation to propose a mutually acceptable solution to parties in dispute. Conciliation proposals are not binding, but parties may accept them unilaterally or through agreement; many international treaties contain provisions for the referral to disputes to compulsory conciliation. GA resolution 50/50¹⁸ of 1995 establishes the UN framework for conciliation. Arbitration, first set out in The Hague Conventions of 1899 and 1907, employs settlement by arbitrators of the parties’ choice, in a manner intended to be consistent with prevailing legal standards. Parties agree to abide by the outcome, which is binding. Arbitration has been used in territorial disputes or, for example, when parties may differ in their interpretations of bilateral or certain multilateral treaties. International tribunals refer mainly to the International Court of Justice (ICJ) and the range of other international courts and tribunals, most of which have been established since the adoption of the Charter. The decisions of the ICJ are final and cannot by appealed.¹⁹ International tribunals, which have proliferated in the modern era, are used, for example, to clarify or settle interpretation and application of treaties, border disputes among states, matters related to the Law of the Sea, the international use of force, the application of cross-border investment agreements, and individual liability for war crimes, among other things.²⁰

The Charter encourages the involvement of regional agencies in the settlement of disputes under its Article 52. Such regional bodies may include the Arab League, the Association of Southeast Asian Nations (ASEAN), the Organization of American States (OAS), the African Union (AU), the Council of Europe, the Organization for Security and Co-operation in Europe (OSCE), the European Union (EU), as well as others. An important challenge in the effective operation of regional mechanisms has been how to harmonize their work with that of the United Nations itself. However, when regional efforts fail, the situation may be referred to the Security Council, where the most vital question then becomes whether the dispute threatens international peace, thus falling within the Security Council’s mandate.

Development of the Concept of a Standing Force

Article 43(1) of the UN Charter states: “All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.” Article 43 was considered, by the drafters in San Francisco, to be absolutely fundamental to the new centralized collective security mechanism of the Charter. However, remarkably, these Chapter VII provisions were never implemented and thus, the Security Council had not actually had, armed forces at its disposal even though Article 24(1) establishes that the Security Council bears “primary responsibility for the maintenance of international peace and security” when parties are unable or unwilling to settle their disputes peacefully, or other situations arise. Faced with a host of conflicts and destabilizing situations in various parts of the world, a number of initiatives have emerged from within the UN to bridge the gap between its peace and security mandate and the absence of appropriate instruments to carry it out.

For instance, in 1948 Secretary General Trygve Lie proposed the creation of a “UN Guard Force” of up to 5,000 soldiers to be recruited internationally, mainly to assist in the administration of truces, protecting the transparency of plebiscites and other duties of a limited nature, not unlike those of a constabulary nonparamilitary force. Lie made it clear that his proposal was not intended as a substitute for the armed forces that were to be made available to the Security Council “as soon as possible” under Article 43, but still encountered strong opposition from the Soviet Union representatives, who did not feel comfortable with an even minimalist interpretation of the commitments made in that Article. Although Lie went out of his way to emphasize that it would not be a striking force, that it would be at the disposal of the Security Council and the General Assembly, and that it would be largely used in the administration of plebiscites and in the supervision of truce terms, he was forced to water down his proposal to an 800-person UN Guard. According to Roberts, even the United States, the United Kingdom, and France had expressed reservations about the scale of such a force, with the US representative stating that, “[w]e are inclined to think that the original proposal was somewhat too ambitious, and that it did encroach somewhat on the military theme.”²¹ This stands in sharp contrast to the initial thinking within the US government in discussions leading to the ratification of the UN Charter when, according to Urquhart, “the United States estimate of the forces it would supply under Article 43, which was by far the largest, included twenty divisions – over 300,000 troops – a very large naval force, 1,250 bombers and 2,250 fighters.”²² This swift change in attitude seems to have been precipitated by the onset of the Cold War and Soviet demands that all the great powers make equal contributions, irrespective of their relative size.

Lie, however, was persistent and he took advantage of the outbreak of the Korean War in June of 1950, the UN’s authorization for a US-led force to repel North Korea’s attack and the General Assembly’s call in its Uniting for Peace resolution alluded to previously (see Chapter 4) – which called on its members to keep forces trained, organized and equipped for UN service²³ – to propose the creation of a UN Legion made up of volunteers. But, by 1954 Lie’s successor, Dag Hammarskjold, withdrew such proposals from further consideration and the issue itself retreated as the patterns of the Cold War became entrenched and significantly intensified.

Dag Hammarskjold sought to make a distinction between “quiet diplomacy,” consisting mainly of the involvement of the Secretary General in bringing together the parties in conflict, and “preventive diplomacy” which consisted in developing and nurturing the infrastructure for peacekeeping operations. Article 98 of the Charter had granted the Secretary General the right to “perform such other functions as are entrusted to him” by the various UN organs and Hammarskjold was proactive in projecting the role of the UN as peacekeeper in a number of instances, such as during the 1956 Suez Canal crisis and in the early 1960s in the Congo, not always with the full support of the membership.

After 1956 peacekeeping forces and the infrastructure around them developed gradually through the introduction of so-called standby arrangements, which Roberts defines as “national contingents which were made available for particular UN operations through specific agreements with the troop-providing governments.”²⁴ The debate about replacing these with a standing force took place largely in the academic community, with proposals such as that put forth by the Carnegie Endowment for International Peace in 1957,²⁵ and the more substantive and ambitious work done by Clark and Sohn in 1958 and in the following years.

The end of the Cold War prompted a more active approach to peace enforcement and conflict management and prevention by the UN. In particular, it boosted in a major way the role of the Security Council in this area and led to a sharp increase in the number of peacekeeping missions mandated by the Council. With the collapse of tightly centralized control in countries such as the Soviet Union and Yugoslavia, festering, long-repressed conflicts – often with an ethnic or religious underpinning – suddenly came to the fore, which was reflected in a much larger number of peacekeeping operations deployed. For instance, while in early 1988 there were ten such operations in place involving about 9,600 military personnel, by the end of 1994 there were 34 operations employing 73,400 troops. (As was noted in Chapter 12 on funding the United Nations, spending on peacekeeping operations rose from under $30 million in 1971 to close to $9 billion in 2017.) Furthermore, the Security Council has broadened the scope of its attention beyond conflict prevention and management to include humanitarian issues, monitoring human rights abuses, terrorism, democratization, the promotion of gender equality, the building up of court systems, and so on. The General Assembly’s role has become more muted in contrast to the pre-end-of-the-Cold War era where it at times occupied the space created by Security Council gridlock, brought about by the frequent use of the veto.²⁶ Article 99 gives a role to the Secretary General in the area of the maintenance of international peace and security, and various secretary generals over time have taken an activist role in this area, often serving as mediators in a range of conflicts or coming forward with various initiatives that would enhance the peace promotion mandate of the UN.²⁷ Examples include important roles played by secretary generals in conflicts in the Middle East, Southern Africa, the Iran–Iraq war, Soviet involvement in Afghanistan in the 1980s, and Namibian independence, to name a few.

An Agenda for Peace 1992 was an early attempt to give new life to the United Nations’ role in this area, with Secretary General Boutros Boutros-Ghali putting forth a range of proposals, including a possible return to the spirit and the letter of Article 43. While admitting at the outset that readily available armed forces on call “may perhaps never be sufficiently large or well enough equipped to deal with a threat from a major army equipped with sophisticated weapons … they would be useful, however, in meeting any threat posed by a military force of lesser order,”²⁸ the Secretary General put forth the idea of creating “peace enforcement units” to support the work of peacekeepers in maintaining ceasefires. Their mandate would be clearly defined and would be made up of troops who had volunteered for such service.

Brian Urquhart, a former Under-Secretary General of the UN published an influential piece in the New York Review of Books in 1993 in which he argued that the time had come to revive Trygve Lie’s 1948 idea. The problem with the Security Council was now less the abuse of the veto by the major powers and more its inability to carry through on its decisions, with this flaw having tragic real-life consequences on the ground, such as in Rwanda and Bosnia. With reference to Bosnia in particular, he argued that “a determined UN peace enforcement force, deployed before the situation had become desperate, and authorized to retaliate, might have provided the basis for a more effective international effort.”²⁹ Urquhart identified flaws in the UN’s peacekeeping arrangements that have largely remained unchanged in the 25 years since he made his case, provoking spirited debate. Key among existing flaws is the unwillingness of governments to put their troops in harm’s way for conflicts perceived to take place in distant lands that could at times be both violent and open-ended. Because peacekeeping forces not only report to the UN command but also to their own country’s military commands, the authorities at home have a built-in bias not to intervene, in the interests of minimizing casualties, among other reasons. Over time, this has resulted in massive tragedies, such as Srebrenica in 1995 when, as noted by Autesserre, “the Dutch commander of a peacekeeping battalion, outnumbered and outgunned, had his soldiers stand by as Serbian forces rounded up and killed some 8,000 Muslim men and boys.”³⁰

But this was not the only problem. Peacekeeping forces are often poorly trained and equipped. They are put together in response to the emergence of conflicts and often, as in Rwanda, arrive too late to make a difference. A standing force of volunteers would address the problem of training by providing this on an ongoing basis; hence the use of the equivalent term “rapid reaction” to highlight a state of readiness that is not to be found in forces that are put together in calls to members by the Security Council, which then has to await for offers of help from interested parties. In this respect, by strengthening the ability to prevent conflicts, such forces could help minimize the terrible human and social costs (not to mention economic and financial inefficiencies) of late interventions. The volunteer nature of enhanced arrangements, likewise, could be expected to deflect the possible political ramifications associated with contingents that are drafted by their respective governments into peacekeeping roles. As we shall see below, these issues are all addressed in the proposals we put forward for an International Peace Force.

Perhaps no other failed UN intervention highlighted the weaknesses of current approaches to peacekeeping than the events in Rwanda in 1994 when, over a period of slightly more than four months 800,000 people were killed. This large-scale genocide of primarily Tutsis was at a time when, in the consensus of experts and subsequent inquiries made to assess what had gone wrong, a modest-sized international force could have prevented much of the killing.^{31, 32}

Upon taking office in early 1997, Secretary General Annan placed conflict prevention at the top of the UN agenda and spoke of shifting the United Nations from a “culture of reaction to a culture of prevention,” stating that “one of the principal aims of preventive action should be to address the deep-rooted socio-economic, cultural, environmental, institutional, and other structural causes that often underlie the immediate political symptoms of conflicts.”³³ Peaceful settlement was thus seen as being closely linked to conflict prevention, with the latter also aiming to address the deeper causes of conflict – poverty, inequality, corruption, lack of opportunity, human rights violations, to name a few (see discussion of addressing these issues more systemically at the global level in Chapters 13–18). Therefore, conflict prevention at UN missions and by bilateral and multilateral actors should address the interconnections and the tensions between security and economic and social development.

In July 2006 Annan further widened the scope of conflict prevention by referring to “systematic prevention,” taken to mean “measures to address global risks of conflict that transcend particular states.”³⁴ The Rwandan Genocide played a catalytic role in these discussions and in the negotiation of the Rome Statute for the International Criminal Court (ICC), which entered into force in 2002, allowing for the prosecution of war criminals; its explicit intention to battle against impunity for grave international crimes was expected to play an additional role in deterring conflict and abuse (see Chapter 10).

Efforts since the end of the Cold War to operationalize the UN’s conflict prevention mandate have not been free of controversy. Some have argued that because preventive diplomacy could involve the use of force, the Security Council should focus its efforts on funding UN peacekeeping and enforcement rather than the less well-defined issue of conflict prevention. Very often states come to the Security Council after the crisis has erupted and the opportunity for prevention is long gone. Some countries see prevention as a justification for intervention; furthermore, developing countries saw a trade-off between a peace and security focus and, in a world of constrained resources, a lack of focus on social and economic development needs. And finally, it was not always clear what “conflict prevention” meant in practice and this has complicated countries’ involvement. In his Supplement to An Agenda for Peace, issued in 1995 on the occasion of the Fiftieth Anniversary of the United Nations, Secretary General Boutros-Ghali noted that “when in May 1994 the Security Council decided to expand the United Nations Assistance Mission for Rwanda (UNAMIR), not one of the 19 Governments that at that time had undertaken to have troops on stand-by agreed to contribute.”³⁵ Indeed, this situation was repeated when, in the aftermath of the genocide, the Secretary General issued appeals to 60 governments for troops for a peacekeeping force to protect 1.2 million Rwandan refugees in camps in Zaire and he received a total of zero responses, again underscoring the fatal flaw associated with the absence of a permanent standing force.

Peace Enforcement: Further Considerations

There are significant differences in the types of UN operations that have emerged in the context of the application of the principles contained in Chapter VII of the Charter. One issue that has emerged is the asymmetric nature of peace enforcement operations under this chapter, which in recent decades have involved mainly events in poorer, developing countries as the main threats addressed by the peace and security mandate of the United Nations. This asymmetry is not unlike that which exists in International Monetary Fund operations, with the Fund having considerable leverage in shaping national domestic policies for those countries (generally in the developing world) that borrow from it, and the organization having little influence in helping reverse unsustainable policies in countries that are systematically important and that may pose threats to the global economy (see Chapter 15). A prime example of this is the 2008–2009 global financial crisis, which eloquently revealed the inability of the IMF to coerce some of its largest shareholders into adopting regulatory regimes for their financial sectors that might be consistent with global financial stability.

Peace enforcement operations have generally been delegated to governments or groups of countries working as part of a coalition, with such operations a way in which the Security Council seeks to impose its will via military or economic actions. These operations may involve the protection of supplies in war-torn areas, ensuring freedom of movement, or securing agreements against various parties that may be seeking to undermine the peace. The Security Council has sought to use a combination of economic and military power with the relative importance of each depending on individual country circumstances. The first Chapter VII operation took place in Korea in 1950 and was only made possible by the absence of the Soviet Union from the Security Council at the time. Article 47 of the UN Charter calls for the establishment of a Military Staff Committee to “advise and assist the Security Council on all questions relating to the Security Council’s military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament.” This initiative fell victim to the onset of the Cold War in the late 1940s and the Committee has never played the role foreseen in the Charter and, thus, Chapter VII operations remained dormant for several decades.

The next Chapter VII interventions came in 1991 with the invasion of Kuwait by Saddam Hussain’s Iraq and authorization in 2001 for the establishment of an International Security Assistance Force (ISAF) in Afghanistan. Peace enforcement operations have not been free of controversy, with many critics stating that the distinction between pacification and militarism has been blurred over time. Such critics point, for instance, to the fact that until relatively recently (up to the time of the failed Somalia intervention in the early 1990s) the US military itself did not unambiguously identify the differences between “war,” peace enforcement, and peacekeeping. In any case, none of the above interventions involved the United Nations at the operational level but were largely based on US political leadership and military deployment, with no UN input to speak of. This may have reflected an established tradition that saw UN soldiers (“The Blue Berets”) as an element of peaceful diplomacy with strict controls on the use of fire, typically limited to cases of self-defense. One further limitation or drawback of interventions led by a country or group of countries – in the absence of a UN force under the jurisdiction of the Security Council – is that an impression can be created that the operations are mainly serving the strategic interests of the country or countries contributing troops and equipment, rather than the interests of the international community as reflected in the will of the United Nations. This, in turn, may contribute to undermine the legitimacy of the intervention. This particular problem would, of course, be addressed in the context of a UN International Peace Force where the command and control would be wholly under UN auspices; we will say more on this in the sections below.

The 1960 Congo mission was the first where UN peacekeepers were allowed to enter into military action but found themselves poorly prepared. This early intervention experience succeeded in eroding the consensus for peacekeeping, with states henceforward seeking short mandates to be renewed only if not vetoed by the Security Council. In other instances, peacekeepers (e.g., Cambodia, 1992–1993) relied on the consent of the government and were required to withdraw even in the face of limited opposition.

The failures in Somalia, Yugoslavia, and Rwanda in the first half of the 1990s, in turn, greatly undermined the credibility of traditional peacekeeping. A permanent tension emerged between the objective of peacekeeping and peace enforcement despite UN efforts to update existing mandates, as was the case in Somalia. At times Security Council resolutions could not be implemented because of the lack of adequate ground force capability to either put a stop to the conflict or to protect safe areas. An example of this tension was French President Chirac’s proposal to retake Srebrenica, which was opposed by the British who argued that the UN force had no mandate to go to war. Or the position taken by the United States, the United Kingdom, and France that prevented the Security Council from rescuing Tutsis during the Rwandan genocide and the associated denials that genocide was in fact even taking place. Indeed, in the case of France, critics have pointed to the fact that the country supported the Hutus on account of strong historical, political, and economic links, largely turning a blind eye to the killing. A third example of a failed, ineffective UN operation concerns Darfur, where the UN and the African Union “decided that respecting Sudanese sovereignty was more important than conducting a military response capable of protecting the civilian population.”³⁶

UN action to secure the peace has been obliged to operate against the background of the constraints imposed by narrow interpretations of Article 2(7) of the Charter, which states that “nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.” Given that, as noted earlier, most conflicts over the past half a century have largely been internal in nature, the end result has often been an approach to peacekeeping and peace enforcement that is overly timid and, hence, ineffective. States in the middle of a conflict have often been reluctant to accept UN involvement, reflecting the primacy of national sovereignty over security and/or humanitarian considerations, and the the organization has itself contributed to the creation of a culture that embodies the belief that “the United Nations cannot impose its preventive and peace-making services on Member States who do not want them.”³⁷ These attitudes, in turn, led to the emergence of a set of overly limited “principles” of peacekeeping which included such concepts as the consent of the parties, neutrality, and the nonuse of force except in cases of self-defense. The idea that the UN should remain neutral between warring parties without a mandate to stop the aggressor and impose a cessation of hostilities flow from a design flaw in the UN Charter, reinforced by the Big Four’s desire not to grant the UN any concrete and effective (as opposed to theoretical, “on paper”) responsibility to actually deliver on the peace and security ideals of its Charter. As we will see below, in our proposals for the creation of a United Nations International Peace Force, there is an urgent need to move to a system of genuine collective security and conflict prevention, where the primary aim of the United Nations is to secure the peace and protect citizens from the effects of violence in an impartial manner, as opposed to entrenching a too-narrow view of state sovereignty, to the detriment of all.

In many cases of UN intervention a key question has often been: Can peace enforcers challenge the sovereign right of domestic authorities to do as they please, which may often involve persecutions, killing, and other forms of massive human rights violations? Can humanitarian motives in fact be grounds for international enforcement action? The Somalian failure very much brought humanitarian justification into the center of the debate on the nature of UN peace enforcement. Secretary General Boutros-Ghali made the argument that in chaotic domestic environments characterized by massive abuses, the need for humanitarian interventions should take precedence over concerns about state sovereignty. Later on, Secretary General Annan made a case for a redefinition of state sovereignty that was consistent with the rights of individuals to peace and security. This thinking underpinned the justification used by NATO for its intervention in Yugoslavia in 1999, with peace enforcement for the protection of populations leading to the development of the concept of the “responsibility to protect” (“R2P”), reflected in the 2005 World Summit Outcome Document of global leaders.

The remarkable high-level acceptance of the R2P doctrine was preceded by the 2001 International Commission on Intervention and State Sovereignty (ICISS), established by the Canadian government, with Gareth Evans, former Foreign Minister of Australia, and Algerian diplomat Mohamed Sahnoun, serving as cochairs.³⁸ In a nutshell, the commission report recommended “three pillars” to the R2P doctrine, with principled collective military action employed only as a last resort. The ICISS underlined, first, the primary responsibility of every state to protect its own populations from atrocity crimes (e.g., genocide, war crimes, ethnic cleansing, and crimes against humanity), in accordance with their national and international obligations, with a second, parallel responsibility of the international community to encourage and support states in fulfilling their responsibilities. Only when a state is manifestly failing to protect its population should the international community take collective action, first employing appropriate diplomatic, political, humanitarian means, and then, if necessary, military means, in accordance with the Charter. The R2P norm has been the object of very substantial civil society engagement and support, with a convened International Coalition for the Responsibility to Protect (ICRtoP).³⁹ The doctrine has informed multiple resolutions of the Security Council and other UN organs since its adoption by the World Summit in 2005.⁴⁰

One challenge faced by the UN in Chapter VII operations has been, as noted above, the generally low level of enthusiasm by UN states to participate in enforcement operations. Many states seem to be of two minds as regards their collective responsibilities under Chapter VII as UN members and their propensities to zealously safeguard notions of domestic sovereignty regardless of circumstance. In An Agenda for Peace in 1992 the Secretary General recommended that under Article 40 of the Charter the Security Council consider using peace enforcement units in clearly defined circumstances, but the veto-wielding members showed little interest. Recourse to regional organizations has also not produced the desired results because these have generally been poorly equipped in operational military capacity for multilateral roles. A related problem pertains to the difficulties faced by parties involved in a military intervention in maintaining adequate levels of impartiality. Michael Pugh argues that “the concept of peace enforcement remains an extremely underdeveloped area of military doctrine – even though it is perhaps most needed.”⁴¹

The International Evolution of War and Violence: A Story of Diminishing Returns

At the same time and in parallel to these incomplete and rather erratic efforts at the United Nations to give reliable operational meaning to Chapter VII Charter commitments, there have been significant changes in our understanding of the use of violence to achieve political ends. One need not be naïve about the future of warfare to understand the constraints that have emerged in recent decades on the use of violence as a result of developments in technology and the process of economic integration. International warfare in centuries past was characterized by great disparities of power, with conquering nations enjoying a superior technological advantage, which could be used to overwhelming effect. Hernan Cortes subjugated the vast Aztec civilization with a grand total of 500 men, 10 bronze cannons and 12 muskets. A similar story can be told about Francisco Pizarro and his band of adventurers and religious fanatics in respect of Atahualpa and the battle in Cajamarca where fewer than two hundred Spanish soldiers, with horses and some firearms, overcame an army of 80,000 Incas.⁴² Whether we refer to the arrival of Robert Clive in India, the opium wars in China, Commodore Perry’s sailing into Japanese waters to compel the Japanese to trade with the rest of the world, or the excesses of African colonization, military might in centuries past was extremely effective in delivering (ill-gotten) economic and political power, in subjugating other peoples, and empowering and enriching those that had the technological advantage.

But that period is long gone and what has emerged is a rapid and irreversible erosion in the ability of military power to deliver the spoils of the past. The arrival of nuclear weapons and the spread of democratic forms of governance, plus a greater recognition by people everywhere of what the anthropologist Robert Murdock calls “the psychic unity of mankind,” the sense that the differences between various cultures and nations – which have frequently figured prominently as justifications for war – are sometimes artificial and often skin-deep, have contributed to shift in a dramatic way the trade-off between the utility of violence and the costs of violence.⁴³ And thus, we have a growing list of examples of some of the most powerful states in the world – often endowed with nuclear weapons and the ability, at least in theory, to totally obliterate their adversaries, having to face military humiliations. Schell points to nuclear-armed Britain failing to achieve any of its strategic objectives in the Suez crisis of 1956 against Egypt; France was not able to retain control of Algeria during its war of independence; the United States and the Soviet Union failed utterly in Vietnam and Afghanistan, respectively, and China had its own unsuccessful border disputes with Vietnam in 1979 and the ensuing years.⁴⁴ The presence of the Soviet Union and China in this list suggests that one cannot appeal to the argument that there is something inherently decent in democratic regimes that makes the use of nuclear weapons to achieve strategic objectives an impossibility.⁴⁵ The issue here is that the world has come around to agree with President Truman, who once remarked that “starting a nuclear war is totally unthinkable for rational men” and that it will never make any sense to shed the blood of millions for some marginal, perceived strategic advantage.

While it has always been ethically unacceptable (and is now seen as such by many populations around the world), the use of violence as an instrument to promote the national interest has also thus been undermined by the very sharp increase in the costs – economic, human, political – of its use. This, of course, is not to say that the world is protected from the delusions of the powerful. It does not mean that World War III will be forever averted. We have not yet devised a system of governance that permanently protects citizens against the dangers of mentally unstable or irrational leaders (which, by and large, are still overwhelmingly men) from rising to power and misusing that power, too often linking military demonstration with types of national “honor” or prestige. But, the calculus of war has shifted and has shown that the utility of violence as a tool to achieve national ends is a pale shadow of what it was in the pre-nuclear days. Nuclear mass extermination was never and is hardly ever likely to be an attractive political option.

In 2002 the United States released its National Security Strategy. Formulated in post–September 11 days of 2001, it postulated an extremely muscular view of the country’s role in the world, one in which the United States – in the words of the US president – “has, and intends to keep, military strengths beyond challenge, thereby making the destabilizing arms races of other eras pointless, and limiting rivalries to trade and other pursuits of peace,” but also one in which US “forces will be strong enough to dissuade potential adversaries from pursuing a military build-up in hopes of surpassing, or equaling, the power of the United States.” The experience, in practice, however, has been enormously more complicated, and costly. American interventions in Iraq and Afghanistan have been extremely expensive. According to the Watson Institute for International and Public Affairs at Brown University, through the 2017 fiscal year the Departments of Defense, Homeland Security, and Veteran Affairs had spent about $4.3 trillion on the wars in Iraq, Afghanistan, Pakistan and Syria since 9/11.

A large share of this consisted of so-called Overseas Contingency Operations, which are subject to special appropriations and the bulk of which were accounted for by the first two of the countries listed above. This sum – equivalent to some 23 percent of GDP in 2017 dollars – is expected to be augmented by at least another trillion dollars (5.4 percent of GDP) in respect of future health and other benefits expenditures for US veterans. Given the ubiquitous presence of budget deficits in the United States over the past many years (18 years of consecutive budget deficits since 2001 and projected deficits for the foreseeable future), much of the military spending has been associated with a remarkable rise in public indebtedness. It is thus necessary to factor into the costs of Iraq and Afghanistan the burden on the budget of additional interest payments on the public debt, which could easily add another 15 percent of GDP. But these numbers, dire as they are, only capture accounting costs, not opportunity costs and productivity losses. How many net additional million jobs could have been created by redirecting some of the monies allocated to the war effort to investments in healthcare, infrastructure, clean energy, education, and other productivity-enhancing areas?⁴⁶ Would a trillion dollars make a difference in the fight against cancer or the mental illnesses that afflict a growing share of the US population? The questions are too painful to raise.

The above is not to suggest that all the above military spending was an entirely wasted effort. The goal of dislodging the Taliban from power in Afghanistan and, for instance, thereby helping release its 11 million women and girls from the restrictions imposed on them by the mental obscurantism of its men, had considerable support in the countries that eventually joined in the war effort. The point is rather to highlight that, almost 20 years later, there is no certainty that, in the absence of further deployment of financial resources to maintain a military presence there, the Taliban would not, in fact, stage a comeback taking us, full circle, back to the beginning of the war, with little to show that would even closely match the scale of the financial effort, to say nothing of the cost in lives.⁴⁷

Which brings us back to Schell’s principal insights in The Unconquerable World: the utility of violence has dramatically declined in recent decades as a tool for the promotion of the national self-interest and:

violence, always a mark of human failure and a bringer of sorrow, has now also become dysfunctional as a political instrument. Increasingly, it destroys the ends for which it is employed, killing the user as well as the victim. It has become the path to hell on earth and the end of the earth. This is the lesson of the Somme and Verdun, of Auschwitz and Bergen-Belsen, of Vorkuta and Kolyma; and it is the lesson, beyond a shadow of a doubt, of Hiroshima and Nagasaki.⁴⁸

Our current system of governance and our efforts to provide peace and security at reasonable cost fail utterly (see Chapter 9). On the whole, it is a massive waste of public resources because it does not achieve even some of the most elementary strategic objectives established at the outset of the hostilities. And, in the nuclear age (with also a range of other weapons of mass destruction existing or on the cusp of development), it holds the seeds of our potential collective destruction.

The Institute for Economics and Peace, an independent nonpartisan think-tank, estimates that the total economic impact of violence in 2017 was in the order of $14.8 trillion, equivalent to 18.5 percent of world GDP or $1,988 per annum per person. Direct costs associated with violence include accounting losses linked to government spending on the military, judicial systems, healthcare, and police. Indirect costs capture losses resulting from violence perpetrated in the course of the year and would include such items as productivity losses resulting from injuries, foregone economic output resulting from premature fatalities associated with murder, as well as reduced economic growth because of prolonged war or conflict. The report analyses three broad categories of costs: security services and prevention-oriented costs; armed conflict related costs; and costs resulting from interpersonal violence.⁴⁹ The two largest contributors to the costs of containing global violence are military expenditures – accounting for 37 percent of the total cost – and internal security expenditures, which mainly capture preventive actions linked to police, judicial and prison system spending and account for 27 percent of the total. It then follows that the total economic impact of violence is approximately 105 times more than annual Official Development Assistance and exceeds the total net outflow of global foreign direct investment by a factor of eight. It also exceeds by a factor of about 350, total annual lending commitments made by the World Bank. The individual country costs range from over 50 to 70 percent of GDP in countries such as Syria, Iraq, and Afghanistan, to less than 3 percent of GDP in Japan, Switzerland, Austria, Iceland, Canada, and Denmark. Clearly, the establishment and implementation of an effective “International Peace Force,” to centralize and contain global security spending, could have vast security and economic ramifications, releasing substantial resources to promote economic and social development and shared prosperity.

Figure 8.1 Military spending under an international Peace Force (US$ per person per year)

The Establishment of an International Peace Force

Our proposal envisages the creation of an International Peace Force, deriving its ultimate authority from the reformed General Assembly via the Executive Council. As noted earlier, “Security Forces” to be in a state of readiness and available to the UN Security Council for Chapter VII action were envisioned in the Charter through the negotiation of agreements “as soon as possible,” as stipulated in Article 43(3); these agreements were never concluded. Clear terms for the establishment of a new standing force or forces, with parameters of readiness and operation, would at last implement a mechanism envisioned in the current Charter system.

The existence of such a Force does not preclude the presence of national forces necessary to maintain order within national territories, but it does make available to the United Nations effective means for “the prevention and removal of threats to the peace, for the suppression of acts of aggression or other breaches of the peace, and for ensuring compliance with the revised Charter and the laws and regulations enacted thereunder.”⁵⁰ This Force would consist of two components, a Standing Force and a Peace Force Reserve, both composed of volunteers. The Standing Force would be a full-time force of professionals numbering between 600,000 and 1,200,000 as determined by the General Assembly. Under plausible assumptions about salary costs for soldiers, support personnel and weapons systems for an internationally recruited force consisting of 800,000 soldiers, the cost would be roughly US$150 billion per year, or about US$21 per person on the planet per year, compared to US$234 in the current system (see Chart).⁵¹

To establish the legal basis for the creation of an International Peace Force a number of amendments to UN Charter Chapters VI and VII articles would be necessary. Grenville Clark and Louis Sohn in World Peace through World Law proposed several revisions to the Charter to make this possible. Our discussion here does not provide by any means as comprehensive a treatment of the underlying issues as that undertaken by Clark and Sohn, albeit at a different time in international history. Our intent here is twofold: first, to highlight some (but not all) of the key changes to the Charter that would be necessary to empower the UN in the area of peace enforcement; and, second, to identify some of the more practical considerations that would need to be borne in mind in respect of the creation of such a Peace Force and to make it operational.⁵²

One major limitation of the present Charter, in terms of establishing a genuine peace and security system, is the absence of enforcement mechanisms and clear procedural requirements for the international obligation of all states to settle their disputes peacefully, and the lack of compulsory jurisdiction of the ICJ (see Chapter 10 on strengthening the international rule of law). Regardless of how intensely a particular dispute endangers the peace of the world, there is no provision in the Charter or the Statute of the International Court of Justice, which would practically oblige the parties, on a universal basis, to submit to peaceful settlement, including a judicial determination. As proposed in Chapter 10, a key revision to the Charter would establish the compulsory jurisdiction of the ICJ and would require all member nations, as appropriate, to submit international disputes that were amenable to solution through the application of legal principles to a final and binding decision by the ICJ.⁵³ Article 94 of the current Charter on the enforcement of decisions of the ICJ should also be strengthened to clarify that, for example, diplomatic and economic sanctions would be available under a revised Article 41 but also, as a last resort, military sanctions through the International Peace Force under a revised Article 42. The combination of the legal authority granted to the General Assembly or the Executive Council if authorized by the Assembly to direct the:

submission of legal questions for final adjudication by the International Court of Justice, together with provisions for the enforcement of the Court’s judgements, would definitely establish the principle of compulsory jurisdiction in respect of all legal issues substantially affecting international peace, and would constitute a great step forward in the acceptance of the rule of law between nations.⁵⁴

It is useful to present here, by way of illustration, the UN Charter’s version of Article 42 and what this Article might look like in a revised Charter that granted the General Assembly the authority for military interventions to secure the peace:

Article 42 – UN Charter: Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.⁵⁵

Article 42 – Revised UN Charter: 1. Should the General Assembly, or the Executive Council if authorized by the Assembly, consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it shall direct such action by air, sea, or land elements of the International Peace Force as may be necessary to maintain or restore international peace and security or to ensure compliance with this Charter and the laws and regulations enacted thereunder. Such action may include demonstrations, blockade, and other operations; but any such action shall be taken pursuant to the procedures and subject to the limitations contained in the terms of reference of the International Peace Force. 2. In cases in which the United Nations has directed action by the International Peace Force, all the member Nations shall, within the limitations and pursuant to the procedures governing its deployment, make available to the United Nations such assistance and facilities, including rights of passage, as the United Nations may call for.

The significance of this revision – which is largely drawn from Clark and Sohn – is obvious. The United Nations would no longer depend on the willingness of its members to contribute military forces but would have its own Peace Force, ready to be deployed by the General Assembly (or the Executive Council if authorized by the Assembly, consistent with the provisions for qualified majorities specified for important decisions – see Chapter 7) to restore international peace. The revised Article makes reference to an Annex (to be an integral part of the Charter), which lays out the procedures and other arrangements that have a bearing on how the Peace Force can be utilized and under what limitations and parameters. The revised Article changes the wording of the original from “may take such action” to “shall direct such action” with a view to strengthening the authority of the General Assembly in the area of military sanctions. Or, as noted by Clark and Sohn, “the conception is that, if the Assembly (or the Council) has reached a decision that measures short of armed force are or would be inadequate, it should be required to employ the United Nations Peace Force, since otherwise the United Nations would have to confess impotence to maintain peace.”⁵⁶ This revised Article 42 would need to be read in conjunction with a revised Article 11 on the General Assembly’s new functions and powers.

Furthermore, Article 43, which has turned out to be a highly inadequate provision to ensure a functional collective security system, relying, as it does on voluntary agreements between nations to make available to the UN military forces, could be amended in conjunction with the Annex on Peace Force arrangements, so that the United Nations would have adequate means even in extreme emergencies, subject to appropriate safeguards, to maintain or restore peace and to enforce compliance with respect to the revised Charter. This could be done by allowing the maximum limits on the sizes of the standing component and the Peace Force Reserve to be exceeded for a limited period of time.

Beyond the amendments to the Charter that would be necessary to provide the legal basis for UN military actions to secure the peace, it will be necessary as well to lay out the various practical issues that would underpin the establishment and the operations of the Peace Force. The nonexhaustive list in the following box, includes various provisions for the operation of this force, as a starting point for further elaboration. In this list we have drawn from Clark and Sohn’s work, who gave a great deal of thought to such operational concerns which they perceived as important at the time of their writing.

Box: The International Peace Force: Selected Operational Considerations

Objectives

1. 1 In the recruitment and organization of the International Peace Force, the objective will be to create and maintain a highly trained professional force such that it is fully capable of safeguarding international peace.

2. 2 The International Peace Force will never be employed to achieve objectives inconsistent with the Purposes and Principles of the (revised) Charter.

Recruitment and Staffing (Personnel)

1. 3 The members of the International Peace Force and its civilian employees, together with their dependents, will be entitled to all the privileges and immunities provided to UN personnel.

2. 4 The Executive Council will appoint the first members of the Military Staff Committee. The terms of office of these initial members will begin on the same day and expire, as designated by the Council at the time of their appointment, one at the end of one year, one at the end of two years, one at the end of three years, one at the end of four years and one at the end of five years from that date. Later appointments will be for equal term lengths – to be determined from time to time by the Council, but never to exceed five years.⁵⁷

3. 5 The Military Staff Committee will prepare for the recruitment and training of both components and will organize the necessary administrative staff.

4. 6 International Peace Force members will be recruited wholly by voluntary enlistment. The General Assembly will have no power to enact a compulsory draft law; and no nation may apply any sort of compulsion to require enlistment in the Peace Force, except under the exceptional circumstances described in Article 43 of the (revised) Charter and subject to the limitations in paragraph 35 below.

5. 7 The members will be selected through international recruitment under the supervision of the Military Staff Committee based on their competence, integrity and devotion to the purposes of the United Nations, and will receive training on the high purpose of their mission and the ethical principles that should guide all their actions. With the exception of commanders at all levels, they must not be more than 35 years old at the time of initial enlistment.

6. 8 The members will declare loyalty to the United Nations in a form prescribed by the General Assembly. They will be restricted from seeking or receiving instructions from any government or authority external to the United Nations. They will refrain from any conduct that might reflect poorly on their position as members of the Peace Force.

7. 9 The term of service of members of the standing component of the Peace Force will be between four and eight years, determined by the General Assembly.⁵⁸

8. 10 The term of service of Reserve members will be between six and ten years, also determined by the General Assembly. They will receive basic training for between four and eight months during the first three years of their term, and again during the remainder of their term, as determined by the Assembly in consultation with the Military Staff Committee.

9. 11 The Force’s officers will be selected, trained, promoted, and retired with a view to create a peerless officer corps. Opportunities for promotion to officer positions will be provided to highly qualified men and women from the rank and file.

10. 12 The members of both components of the Peace Force will be recruited on as wide a geographical basis as possible, subject, except in extreme emergency (see paragraph 36), to the following limitations:

    1. a. The number of nationals of any nation serving at any one time in either component of the Peace Force cannot exceed 5 percent of the total enlistment of that component.

    2. b. The number of nationals of any nation serving at any one time in any of the three main branches of either component (land, sea and air) cannot exceed 5 percent of the total enlistment of that branch.

    3. c. The number of nationals of any nation serving at any one time in the officer corps of one of the three main branches of either component cannot exceed 5 percent of the officer corps for that branch.⁵⁹

11. 13. Units of the Peace Force will be composed to the greatest possible extent of different nationalities. No unit exceeding one hundred in number can be composed of nationals of a single nation.

12. 14. The Peace Force will, to the extent authorized by the General Assembly, employ civilian personnel for the services and functions that do not need to be performed by military personnel; civilian personnel will not be deemed members of the Peace Force.

13. 15 After being honorably discharged from the standing component of the Peace Force following at least two full enlistment periods, a member and their dependents will be entitled to choose the nation in which they wish to live, and they will be entitled to acquire the nationality of that nation if they are not already nationals.

Administration

1. 16. The General Assembly will adopt the basic laws necessary to provide for the organization, administration, recruitment, training, equipment, and deployment of the Peace Force’s Standing and Reserve components.

2. 17. The General Assembly will have authority to amend and enact the basic laws and regulations referenced in paragraph 16, and those deemed necessary for the organization, administration, recruitment, discipline, training, equipment, and deployment of the Peace Force.

3. 18. If the General Assembly determines that the economic measures provided for in Article 41 of the (revised) Charter are inadequate or have proved to be inadequate to maintain or restore international peace or to ensure compliance with the (revised) Charter, and that the Peace Force has not reached sufficient strength to deal with the situation, the Assembly will direct such action by part or all of the national forces which have been designated in paragraph 35 as it deems necessary. This action will be taken within the limitations established in paragraphs 27–32.

4. 19. The General Assembly will have authority to enact the laws and regulations deemed necessary for the strategic direction, command, organization, administration, and deployment of the national forces designated in paragraph 34 when action by any such national forces has been directed pursuant to paragraph 18.

5. 20. The Military Staff Committee will have direct control of the Peace Force. The Executive Council may issue instructions to the Committee as it deems fit.

6. 21. The expenses of the Peace Force and of the United Nations Military Supply and Research Agency (see paragraph 24) will be borne by the United Nations. The General Assembly will determine the compensation and allowances of the Military Staff Committee. After receiving a report from the Committee and the recommendations of the Executive Council, the General Assembly will determine the pay and allowances of the personnel of the Peace Force. The annual budget of the Peace Force will be prepared by the Committee, subject to the approval of the Executive Council. The annual budget of the Military Supply and Research Agency will be prepared by the Agency’s management, subject to the approval of the Executive Council. Both budgets must be submitted to the General Assembly for consideration and approval.

Logistics

1. 22. The standing component of the International Peace Force will be stationed at military bases of the United Nations, which will be spread around the world to enable prompt action in cases approved by the General Assembly, or the Executive Council if authorized by the Assembly. In order to ensure adequate regional distribution, the world will be divided by the Assembly into between 11 and 20 regions. Between 5 and 10 percent of the total strength of the standing component will be stationed at bases located in each of these regions, except when the Peace Force is taking action to maintain or restore international peace or to ensure compliance with the laws and regulations of the (revised) Charter.

2. 23. The military bases of the United Nations will be obtained from or with the assistance of the nations in the relevant region. The bases will be acquired on long-term leases, by agreement and, as needed, by compensation.

Weaponry⁶⁰

1. 24. The International Peace Force will not possess or use any nuclear, biological, chemical, or other weapons of mass destruction.⁶¹ The Peace Force will acquire its initial arms and equipment (including airplanes and naval vessels) through transfers from national military forces during the disarmament period specified in the (revised) Charter. Any further arms and equipment will be produced by the United Nations in its own production facilities. These facilities will be administered by the United Nations Military Supply and Research Agency and will be established by General Assembly legislation. The facilities will be initially equipped with machines, appliances, and tools discarded during the disarmament period. Further needs will be manufactured by the United Nations in its own plants – also administered by the Military Supply and Research Agency. The requirement that the production of arms, equipment, and machines be confined to the production facilities of the United Nations will not apply if the General Assembly declares an extreme emergency (see paragraph 36).

2. 25. The United Nations Military Supply and Research Agency will, to the extent authorized and provided for by the General Assembly, engage in research related to the development of new military weapons, the improvement of existing weapons, and methods of defense against the possible illegal use of weapons of mass destruction and other weapons or modes of attack of concern.

3. 26. The stocks of arms and equipment will be located on the United Nations’ military bases. The facilities of the United Nations Military Supply and Research Agency will be located either on these bases or in areas leased by the United Nations for the purpose. The stocks and facilities will be geographically distributed to minimize the risk that any nation or group of nations might gain a military advantage by seizing the stocks or facilities situated in a particular region; between five and ten percent of the total amount of the stocks and of the total productive capacity of the facilities will be concentrated in each of the regions referenced in paragraph 22.

Action Protocol

1. 27. Plans for possible action by the Peace Force to maintain or restore international peace or to ensure compliance with the (revised) Charter will be made by the Executive Council with the assistance of the Military Staff Committee.

2. 28. When action by the Peace Force has been directed by the General Assembly, or the Executive Council, the Military Staff Committee will be responsible for the final preparation and execution of such plans, subject to the general control of the Executive Council.

3. 29. No action by the Peace Force will be permitted without prior authorization by the General Assembly, or the Executive Council. This provision does not prevent the Peace Force from taking necessary measures of self-defense in case of an armed attack on its bases, ships, or airplanes, or on its personnel stationed outside its bases.⁶²

4. 30. Any action by the Peace Force will be limited to operations strictly necessary to maintain or restore international peace or to ensure compliance with the (revised) Charter. The Peace Force will always avoid any unnecessary destruction of life or property and act in compliance with international humanitarian law. If in the case of a large-scale violation – which cannot be dealt with by more limited means – it is determined absolutely essential to destroy or damage an inhabited area, the inhabitants will be given sufficient warning so that they may evacuate in time. Whenever possible, and in particular when action is being taken to prevent rather than suppress a breach of the peace or a violation of the Charter, any use of force will be preceded by naval or air demonstrations, accompanied by a warning that further measures will be taken if the breach or violation does not cease. When a violation consists of the operation of prohibited or unlicensed installations, establishments, or facilities, the action of the Peace Force will be confined to occupation unless the destruction of such installations, establishments, or facilities is absolutely essential to prevent a continuation of the illegal operation.

5. 31. When taking action, the Peace Force will be entitled to pass freely through the territory of any nation and to obtain from any nation assistance with respect to temporary bases, supplies, and transport as is needed. The General Assembly will enact laws regulating the extent of such assistance and the payment of fair compensation.

6. 32. Upon the termination of any action by the Peace Force, it will be withdrawn as soon as possible to its bases.

7. 33. The United Nations will have exclusive criminal and disciplinary jurisdiction with respect to the members of the Peace Force, its civilian employees, and their dependents in any area that the United Nations has leased for the use of the Peace Force. The General Assembly will enact laws specifying the penalties for offenses and providing for the apprehension, trial, and punishment of the accused. If the accused is found outside the area where the offense was committed, the authorities of the nation in which the person is found will assist in their apprehension and return to the area.⁶³

Member Obligations

1. 34 During the transition period toward the establishment of the Peace Force and in coordination with the process of disarmament, each member nation will make available to the United Nations one tenth of its military forces. During this period, one fourth of the combined forces will be maintained in a state of immediate readiness for military action under the direction of the United Nations.

2. 35 If the General Assembly declares the existence of a grave emergency, it will call all or part of the International Peace Force Reserve to active duty according to the following limitations: (i) If the call to active duty is for less than all of the Peace Force Reserve, members of the Reserve will be called in proportion to the number of nationals of the respective nations enrolled in the Reserve; (ii) The period of active duty required under any call must not exceed the period of the emergency, and no member of the Reserve will be obliged to serve after the expiration of the term of service for which they originally enrolled (see paragraph 9).

3. 36 If the General Assembly has declared the existence of a grave emergency and if at that time the authorized strength of the standing component of the Peace Force is below its constitutional limit of 1,200,000 or the authorized strength of the Peace Force Reserve is below its constitutional limit of 2,400,000, the Assembly may increase the authorized strength of the Standing Force to 1,200,000 or of the Reserve to 2,400,000, or of both to these limits.⁶⁴ The Assembly may authorize these increases whether or not it has called to active duty part or all of the Reserve. The Assembly may call upon the member nations to assist in the recruitment of either or both components.

4. 37 If the General Assembly has declared the existence of an extreme emergency and has directed an increase of the strength of the Peace Force beyond the maximum combined strength of 3,600,000 for both components (see paragraph 36), the Assembly may direct the member nations to cooperate in obtaining the needed additional personnel.

Quite aside from providing for security and promoting peace in various parts of the world, the creation of an International Peace Force, firmly anchored in the notion that force may at times be necessary to deliver justice and the rule of law, would address one of the main flaws of our current UN system, namely, the absence of a reliable international mechanism to enforce certain decisions made by the Security Council in service of international peace and security, and to generally ensure compliance with Charter obligations and international law. An additional Charter amendment would enshrine the “Responsibility to Protect” (“R2P”) doctrine for collective security action to protect minority groups and others threatened by mass atrocity or genocide, subject to further elaborated objective criteria, careful procedural control, and the oversight of independent experts. An oversight body could generally set protocols for, make recommendations in relation to, and monitor the implementation of actions of the International Peace Force and its collective security action (including in relation to the R2P doctrine).⁶⁵

Subject to the safeguards identified above, and additional safeguards, as deemed necessary, the International Peace Force could be a vital instrument to enhance the credibility of the United Nations to prevent conflicts and maintain peace and security in the world. An equally important implication of bringing it into being would be the creation of a genuine mechanism of collective security, which would significantly reduce the pressure on countries to maintain extensive and expensive military establishments. Military expenditures are categorized by the IMF as “unproductive expenditures” – often large in relation to countries’ unmet needs and with little beneficial collateral repercussions in terms of productivity and economic efficiency. Reductions in military spending at the national level could be reallocated to other ends, including education, public health, infrastructure, and other productivity-enhancing areas, thereby giving rise to a real “peace dividend.”⁶⁶ During the transition, special attention would need to be paid to the reallocation of military, human, and economic resources to peaceful purposes, as discussed in Chapter 9.

Challenges in Implementation

There is no doubt that the proposals contained in this chapter are bold and ambitious in a way that Secretary General Trygve Lie’s own ideas for setting up a small UN Guard Force in 1948 were not, even though they were so characterized by the major powers at the time, intent on reneging from their Article 43 commitments, against the backdrop of the Cold War. There is no question that there would be major practical challenges in operationalizing a Peace Force of the size envisaged. Indeed, the contents of the Box above are intended to highlight the range of issues that arise in identifying various aspects of the operations of the Force, from recruitment and staffing, to training, financing, logistics, weaponry, action protocols, and the like. However, the very mixed picture that emerges from examining the results of more than half a century of UN peacekeeping operations and international military action underscores the difficulties in interventions intended to enforce the terms of the Charter and international law, prevent the outbreak of conflict, genocide, civil wars, to protect civilians, and to support humanitarian relief efforts. Such examination points convincingly to the United Nation’s failure since its inception to provide for reliable and even-handed peace and security for the peoples of the world as called for in the Charter, and which have resulted in approximately 41 million deaths in wars and conflicts between 1945 and 2000.⁶⁷

We think that in the absence of a large, properly trained and equipped Force, with sufficient legal authority to act on behalf of the international community through the United Nations, we will continue to bear the human and financial cost of our flawed international security arrangements. The proposals presented here address most of the arguments that have been put forward to explain the weaknesses of current peacekeeping and peace enforcement operations. These range from the inability of the United Nations to secure troop commitments within a time frame that would actually make a difference on the ground, to the issue of securing forces that would be appropriately trained and equipped, to the important question of allocating the responsibility for such operations (and the risks they entail) to the United Nations, not the national politicians who make the commitment to subject their national troops to potential hazards in far-off lands. We think that a large force as proposed would be a powerful deterrent to the use of violence to settle disputes; this is the lesson from 800,000 deaths in Rwanda and multiple millions elsewhere through the years.⁶⁸

The concerns expressed at various times throughout the UN’s history about the consequences of strengthening the organization’s military mandate and associating its operations more overtly with the use of military force are understandable, but, in our view, they largely miss the point. Appropriate safeguards and checks and balances in the establishment and employment of such a force to prevent its misuse, can and should be developed and put into practice. We would like to see the further “depoliticization” of the use of force at the international level, and a delinking of bloated military activity from forms of national identity and international prestige, which are anachronistic – and, of course, dangerous – in modern circumstances. Every state should rather seek the prestige of upholding and supporting the international rule of law, and the establishment of secure cooperation systems, based on clear international values and norms and strong institutions with robust checks and balances.

International peace operations and intervention should be a matter of primarily technical, not political, concern.⁶⁹ Currently, we pay a heavy price in human lives and suffer the loss of truly astounding financial resources by having a weak United Nations, hampered by inadequate resources and unable to act on a timely basis to prevent the sort of violence we have seen over the past decades. It seems wholly irresponsible and illogical to limit the UN’s use of occasional force in the pursuit of peace and justice, while standing by helplessly as mass killing gets underway in Rwanda, Bosnia, Congo, Syria, and countless other places. The proposals presented in this chapter are intended to move beyond this moral swamp in which we have lived since 1945 and which has been so costly to the millions who have perished because of our failure to give the United Nations the instruments it needs to carry out its peace and security mandate.

9 Toward Systemic Disarmament: Resetting Global Priorities

The global arms trade, and its accompanying glut of military spending, continues to represent the single most significant perversion of worldwide priorities known today … It buttresses wars, criminal activity and ethnic violence; destabilises emerging democracies; inflates military budgets to the detriment of health care, education and basic infrastructure; and exaggerates global relationships of inequality and underdevelopment. Without massive and coordinated action, militarism will continue to be a scourge on our hopes for a more peaceful and just 21st century.¹

Oscar Arias, Former President of Costa Rica, Nobel Peace Laureate

If we are serious about nuclear disarmament – the minimum technical requirement for real safety from extinction – then we must accept conventional disarmament as well, and this means disarmament not just of nuclear powers, but of all powers, for the present nuclear powers are hardly likely to throw away their conventional arms while non-nuclear powers hold on to theirs. But if we accept both nuclear and conventional disarmament, then we are speaking of revolutionizing the politics of the earth. The goals of the political revolution are defined by those of the nuclear revolution. We must lay down our arms, relinquish sovereignty, and found a political system for the peaceful settlement of international disputes.²

Jonathan Schell

Introduction

Part of a fundamental global transition to the peaceful settlement of international disputes, to a full collective security model replacing the unilateral use of force, and to an international order based on a genuine rule by law, is to design and implement a clear, ambitious and systemic program – the “massive and coordinated action” referred to by Arias, above – of international arms control and disarmament.

The UN Human Rights Council has, for example, affirmed that an equitable and democratic international order requires, among other things, the realization of the “right of all peoples to peace,” stating that:

all States should promote the establishment, maintenance and strengthening of international peace and security and, to that end, should do their utmost to achieve general and complete disarmament under effective international control, as well as to ensure that the resources released by effective disarmament measures are used for comprehensive development, in particular that of the developing countries.³

In this chapter, as well as providing framing background perspectives relevant to tackling the very fundamental international problem of systemic disarmament, we sketch the outline of and starting points for robust new proposals, which would include UN Charter amendment, for the essential restructuring of global practices in relation to the current “glut of military spending.” There have been, indeed, recent calls for the reform or revitalization of Article 26 of the UN Charter, which allotted to the Security Council a responsibility to develop comprehensive and concrete plans for a system for the global regulation of armaments.

In summary, in parallel with the creation of the International Peace Force (IPF), a new, consolidated and empowered Standing Committee on Disarmament should be established to develop, implement, and monitor a binding yet staged global disarmament process, to reduce national armaments to levels needed for self-defense only. During a preparatory period, an inventory of armaments would be undertaken, sites/facilities identified or constructed for their neutralization and decommissioning under UN monitoring and coordination, and the necessary budget and financial allocations organized. This would be followed by a phase of disarmament proper, which would be managed to be simultaneous and proportional among the greater powers in particular. Special attention would be given to nuclear arms and the long-term storage of the resulting wastes at neutral sites, as well as to new and emerging forms of weaponry such as programs for cyberwarfare. Unprecedented intensive global monitoring and verification would be needed to ensure that no arms are hidden or developed for later use.

Such an approach, indeed, forms part of the core of ensuring a stable and operable international collective security system (where the IPF is an effective “global policeman” rather than the “Big Four,” as envisioned at the end of World War II), and adhesion to such a system should be a condition for acceptance of any state by the international community as a “peace-loving nation.”⁴ Such systematic global arms control has long formed one of the core aspirations of the international community (see the following section), and is made ever more urgent given current destabilizing forces, some of which are described in this chapter. The disruptive and unpredictable forces seen today, including in relation to technological developments, make a fragmented and piecemeal approach to arms control and disarmament – which the international community has adopted to date – wholly untenable.

Background

Comprehensive and controlled disarmament among the community of nations has been an aspiration of the international legal project since its very early years. The first Hague Peace Conference of 1899 convened by Nicholas II, Tsar of Russia, had as a main agenda item military and arms limitation among the then great powers (particularly focused in Europe at that time). British Lord Salisbury, in a speech to the London Guild Hall in 1887 reportedly urged Nicholas II’s predecessor, Tsar Alexander III, to convene a major power disarmament conference, in the name of collective social progress.⁵ Pragmatically, it was understood that the unsustainably expensive and destabilizing arms races in Europe (e.g., with a Triple Alliance of Austria-Hungary, Germany and Italy evolving in opposition to the Entente of France and Russia), were prohibitive in cost and risky to all those involved. World War I of course, would bear out these concerns, with the first and second (1907) Hague Peace Conferences proving themselves a failure on the core disarmament issues.

In terms of wasteful and destabilizing expenditures today implicated in the global arms trade, recent numbers are truly staggering. The Stockholm Peace Research Institute estimates world military expenditure in 2017 to have reached more than $1.7 trillion ($1,739 billion), representing “the highest level since the end of the Cold War, equivalent to 2.2 per cent of global gross domestic product (GDP) or $230 per person.”⁶ According to the IMF, military expenditures are “unproductive” in relation to countries’ unmet needs and do not benefit productivity and economic efficiency. The trade-offs or “opportunity costs” of countries’ spending on military versus more productive social expenditures for the national – and international – economy, such as education, health and child care, are dramatic.⁷

The classical “security dilemma” of individual states or alliances explains the danger and the seeming inevitability of intensifying, tit-for-tat arms races, as described by security scholar Christopher Browning:

The idea of the security dilemma suggests that in conditions of international anarchy, where states are ultimately dependent upon themselves for survival, states are necessarily prone to suspicion and worst-case scenarios. The security dilemma is characterized by a situation whereby a state fearful for its security, begins arming itself. Although for the state in question armament may be a purely defensive measure, this may appear unclear to other states who may interpret it as threatening, even despite – or perhaps precisely because – of proclamations otherwise. Indeed, armaments procured for defence can usually also be deployed offensively. Fearful that their own security is being undermined these states may respond in kind, in turn legitimizing the first state’s concerns but requiring a further response later on. In this way a spiral of insecurity can develop, with war looming in the background as an ever-present possibility.⁸

Article 2(4) of the UN Charter prohibits the “threat or use of force” of member nations in their international relations, and the excessive or nontransparent build-up of armaments can present serious problems in this respect. As noted by Browning, it can be difficult to distinguish between the defensive and offensive nature of armaments acquired by a given nation. The International Court of Justice has explored, for example, in an Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, whether a nation possessing nuclear weapons could be considered to be in violation of Article 2(4) of the Charter, by posing a threat of use of force and violating requirements of necessity and proportionality in the deployment of weapons under international law, even if anticipated to be used defensively.⁹

In relation to the overall global system today and the precarity of shifting global power dynamics – in particular but not only in relation to the US–China configuration – various authors have raised the alarm as to the care and focus currently required to navigate these new power constellations, to ensure that war (“cold” or “hot”) is not inevitable.¹⁰ One report notes the contemporary shifting “geostrategic relationships” where bipolar (Cold War) or unipolar (post–Cold War) models are no longer helpful, noting that while “it is clear change is under way, it is not clear what the outcome will be.”¹¹ Given current dilemmas, it is urgent to devise effective, systemic solutions in order to halt spirals of insecurity and arms races, and to put in place a coherent, transparent, thorough and well-designed global security regime for the control and limitation of armaments, as was envisioned in the specific provisions on arms control and disarmament in the current UN Charter (see next section).

Key framing provisions of the 1945 UN Charter were in fact intended to lay the groundwork for a general international enabling environment to build sustainable trust among nations, in order to transcend traditional interstate security dilemmas and maximalist military competition. For example, the goal of the Charter is to create conditions necessary for the respect of international law (Preamble) and the peaceful settlement of international disputes under Chapter VI (to resolve, for example, territorial disputes, which have been a major cause of interstate wars; see Chapter 10), in order to transcend anarchic international conditions, which are the basis of “realist” thinking on the inevitability of war. The Charter requires that all members of the United Nations be “peace-loving” as a condition of membership (Art. 4(1)), should “live together in peace with one another as good neighbours” (Preamble), should “develop friendly relations” (Art. 1(2)), and must fulfill “in good faith the obligations assumed” under the instrument (Art. 2(2)).

All of these provisions, alongside the Charter articles relating to collective security,¹² undergird the contemporary international striving to move beyond anarchic conditions and irrational cultures of unhealthy military competition and opaque mistrust that drove the senseless wars of the past. These are the fundamental tenets of the modern international order that still must be made fully incarnate in state practice and institutions, and in practical, newly ambitious commitments in the sphere of arms control.

The UN Charter Provisions on Disarmament/Arms Control

The UN Charter gives both the Security Council (Article 26)¹³ and the General Assembly (Article 11(1)) specific mandates in the sphere of arms control and disarmament, clearly recognizing that these projects are integral to international peace and security, and also have a diversionary effect on the “world’s human and economic resources” (see also discussion in Chapter 4 on GA engagement in disarmament issues).

The Security Council was tasked with the responsibility of formulating, with the assistance of the Military Staff Committee, “plans to be submitted to the Members of the United Nations for the establishment of a system for the regulation of armaments.” Needless to say, no such plan was developed. Military competition – ironically – between key members of the Security Council intervened. Despite efforts in the later 1940s to begin to attempt to draft such plans, lack of unity among the permanent members of the Security Council, by 1952, essentially arrested these efforts, which have not been revived in a serious way since that time.

The General Assembly was tasked, in parallel, with the power to “consider the general principles of co-operation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments, and may make recommendations with regard to such principles to the Members or to the Security Council or both.” Again, while there have been many excellent and aspirational statements issued by the General Assembly (and admirable piecemeal/incremental progress on disarmament which may be linked to a General Assembly initiative; see Box in this chapter), no significant comprehensive progress as anticipated by the Charter has yet been effected. One independent expert, calling the urgent need to reduce military expenditures worldwide an “endemic” barrier to development, has noted:

The United Nations has adopted countless resolutions reflecting that understanding shared by think tanks and civil society alike. Nevertheless, in spite of accurate diagnoses, there has been little progress in redirecting military expenditures toward peaceful industries. Indeed, one of the challenges faced by the present mandate is precisely how to transform the ethically obvious into the politically feasible. [Continued examination is required of] this vast issue as a component of the overall strategy to overcome obstacles to the establishment of a just international order.¹⁴

Recent Developments in Arms Control

Against this backdrop, there have, however been some notable, positive recent developments in the disarmament field. For example, in relation to efforts to promote the nonproliferation of nuclear weapons, the Treaty on the Prohibition of Nuclear Weapons (TPNW; see Box) was adopted in 2017, as the first binding international treaty comprehensively prohibiting nuclear weapons. Talks had been opened on the negotiation of this treaty in 2016 (mandated by a General Assembly resolution), impelled by the frustration of many states with the lack of progress of nuclear weapons states to make progress on nuclear disarmament in conformity with their obligations under the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT; see Box below). Commentators note the significance of the adoption of the TPNW as follows: “[t]he humanitarian initiative and attendant effort by a large group of non-nuclear-armed states and civil society actors to institute a global ban on nuclear weapons constitutes a process of collective resistance to entrenched power structures that perpetuate the existence of nuclear weapons.”¹⁵ The TPNW, adopted by 122 states (excluding the nuclear weapons states and their allies), is expected to have a normative and longer-term impact on the development of international law and the further stigmatization of nuclear weapons. Additionally, the broad-based civil society and non-nuclear weapon state efforts to convene negotiations and adopt the TPNW may have catalyzed a greater sense of urgency in various areas of global disarmament.¹⁶ For example, there has been some recent movement on a number of topics at the Geneva-based Conference on Disarmament, the only standing international forum for negotiating arms control and disarmament agreements, with a new initiative to break through the gridlock that had left it, since 2009, unable to adopt a work program. The UN Secretary General has also released, in May 2018, a 73-page “non-paper,” Securing our Common Future: An Agenda for Disarmament, outlining possible strategies on a wide range of current international disarmament issues, including an analysis of the deteriorating international security environment, addressing weapons of mass destruction, chemical, biological, outer space and new types of destabilizing strategic weapons, as well as conventional weapons, and challenges posed by new technologies, AI and cyberspace.¹⁷

However, against this backdrop of the apparent “coalition of the many” desiring to move forward proactively in global arms control, there have been worrying developments in particular on the bilateral plane. The United States has announced that it may withdraw from the Treaty on the Elimination of Intermediate-Range Nuclear Forces Treaty (INF Treaty) with Russia, a Soviet–US agreement from 1987, which facilitated the elimination of thousands of Soviet missiles based in Europe and paved the way for the end of the Cold War. Also, neither Russia nor the US have committed to extending the New START (the 2010 Treaty on Measures for the Further Reduction and Limitation of Strategic Offensive Arms), limiting strategic nuclear forces, before its 2021 expiration, nor negotiate additional reductions under the regime. Since the US has withdrawn from the 2015 Joint Comprehensive Plan of Action (JCPOA) for Iran to limit its nuclear program, Iran hesitates to implement the arrangement (as of mid-2019), while the other partners to the agreement, the EU, France, Germany, the UK, China, and Russia, continue to honor the agreement. The US has also, subsequent to its 2018 “nuclear posture review,” begun to manufacture new, low-yield nuclear warheads for Trident missiles, prompting some to suggest that this more flexible weaponry could lower the threshold for the instigation of a nuclear conflict.¹⁸

The current deterioration of the significant post–Cold War achievements in bilateral disarmament among the two involved “great powers” (which helped to make the world a safer place) has prompted Mikhail Gorbachev to write a New York Times opinion piece entitled A New Nuclear Arms Race Has Begun, citing the demise of the INF as the “latest victim in the militarization of world affairs.” He issues the following warning to contemporary leadership’s seeming compulsion to repeat old mistakes:

Yet I am convinced that those who hope to benefit from a global free-for-all are deeply mistaken. There will be no winner in a war of all against all – particularly if it ends in a nuclear war. And that is a possibility that cannot be ruled out. An unrelenting arms race, international tensions, hostility and universal mistrust will only increase the risk.¹⁹

Currently, it does seem that, with an increasingly unstable international security environment where regression to previous patterns is a substantial risk, sober minds are turning their attention to the real, practical need for the international nonproliferation of a wide range of weapons types, existing or yet to be invented, with worrying new weapons technologies on the horizon. Uniquely ambitious comprehensive plans “for the establishment of a system for the regulation of armaments,” that were to be the responsibility of the Security Council under the Charter, should be undertaken, taking advantage of the expertise and technical skill acquired in the field of arms control since the advent of the Charter (see Box). As with the adoption of the TPNW in 2017, a broader and more decentralized collective leadership is currently needed to push ahead on this topic. Early efforts by such bodies as the Commission on Conventional Armaments (CCA), established in 1947 as a subsidiary organ to the Security Council (upon recommendation of the General Assembly) and disbanded in 1952, could serve as an inspiration and starting point for modern efforts. For example, working papers and reports of the CCA began to analyze what it considered to be essential elements of an international system of verification and control of armaments, and also the delineation of the range of basic challenges inherent to the regulation of armaments. New perspectives on “human security” can frame contemporary initiatives, alongside a consolidation and rationalization of the presently fragmented and outdated multilateral efforts developed since the Cold War, that are not fit for present needs and potentials.²⁰

The Challenge

The challenge presented by ambitious and comprehensive global disarmament regimes – unlike anything the world has seen to date in this field – is a significant one, as systemic change in the global acquisition and use of arms would also represent a paradigm shift in social organization and a range of traditional cultural assumptions. A fundamental attribute of national sovereignty, before the era of the Charter’s legal regime and precursor instruments, has been conceived to include the right to wage war on other nations in the defense or advancement of national interests, in a presumed anarchic environment. Apart from some indigenous societies, warfare has been part of human experience since before recorded history; and recorded history is largely the history of wars.²¹ There is a certain “path dependency” in considering war and mass armed conflict to be inevitable.

Furthermore, war, or national war-readiness, as a demonstration of the ultimate use of force and display of power can play to the (mostly masculine) ego,²² inflating the self-worth of autocrats and powerful elites, and even corrupting democratically elected leaders. The pride and glory that can be associated with military parades show this only too well. The instruments of war find their extension in militarized dictatorships, police states and repressive regimes, where the institutions of government are turned to the benefit of those in power rather than to the welfare of the population. Such governments, within a global intergovernmental system, will themselves become obstacles to the functioning of that system in general, and to disarmament in particular, as genuine arms control may threaten the basis of their authority and facilitate their exit from power. An external enemy is important for some governments, and even for the identities which have been cultivated within certain nations.²³ However, such predispositions and historical tendencies only support the argument for strong international initiatives and mechanisms to hold national leaderships to account (for example under international criminal law or in relation to a new international anti-corruption court; see Chapters 10 and 18), to facilitate trust among peoples and nations, as well as intercultural knowledge, and to further shared international norms (see Chapter 20), including democratic and participatory governments at the national level, within a framing “culture of peace.”²⁴

Ending traditional security dilemmas and achieving disarmament are therefore also a human and social challenge, requiring changing minds and hearts, including, importantly, in leadership – and in the public conception of what leadership entails. Outdated political concepts of power as domination, and the control of substantial armies and navies and the power of life and death as instruments of that domination, have attracted certain personality types to leadership positions, often with the ends justifying any means. History is full of such examples. Where such people are in power today, they will cling to outdated notions of national sovereignty as a defense of their association with power. More mature concepts of leadership as service to one’s country and its people (see Chapters 19 and 20), and as responsible, constructive and rational actors on the international stage, will be needed to engage governments in ambitious proposals for the reform of our current international system. More prominent leadership from the representatives of “middle powers,” who may be more committed to and better understand the rational basis for a strengthened international system, are badly needed. Generally, reforms in many national government structures, changes in education, and broad civil society engagement are all necessary to move forward effectively and to reduce the number of countries which may feel threatened by global governance reforms (e.g., which suffer from insufficient democratization or legitimacy of leadership), and the international community must re-double its efforts to assist such countries.

Abolition of War

All this implies that a precondition for successful disarmament will be a general consensus among governments and in public opinion that, as war is prohibited as an anachronistic and unnecessary human institution (one can already see clear signs of this consensus; see Chapter 10), the means for its waging should be eliminated, with global armaments strictly controlled and subject to monitoring, in conformity with Charter norms. Credible alternatives to settle disputes must be available, and processes established to punish violators of key international norms and to bring recalcitrant governments into line. This chapter outlines some approaches that may be necessary to enable this transition and to reap the benefits of a global peace economy. For generations, many have hoped for a world without war, especially after suffering through one. We are convinced that, in the 21st century, this is now a realistic possibility for the following reasons.

First, with modern technology, the nature of warfare and its capacity for destruction have fundamentally changed. Yes, there were times in the past when a city was besieged and overwhelmed, its men and boys slaughtered and its women raped and taken into slavery, but the scale was different. War as combat only between large armies of soldiers or fleets of warships is largely a thing of the past. The distinction between military combatants and civilians has increasingly disappeared. Weakening “the enemy” means firebombing or laying waste to whole cities, targeting hospitals and schools, and driving out entire populations. Some attempts have been made to outlaw chemical and biological weapons, and antipersonnel mines that go on killing long after the end of a conflict, with moderate success. However, with the development of nuclear weapons with the capacity to vaporize whole cities, contaminate the atmosphere and trigger a nuclear winter wiping out most of the human race, war has given us the potential and the risk of collective suicide. The fact that the nuclear powers still contemplate war with these weapons and prepare for it defies logic and underlines the fundamental flaws in national governance as presently practiced.²⁵ Even those who believed that nuclear weapons “were essential to maintaining international security during the Cold War” based on the doctrine of deterrence, have argued that they now pose immense dangers to global society.²⁶

Second, recent technological transformations are changing the nature of warfare in fundamental ways. The latest technologies of autonomous weapons guided by artificial intelligence are further shifting the strategic balance from deterrence to attack, as they make possible the simultaneous destruction of all or most of an adversary’s retaliatory capacity.²⁷ The capacity of computers to process masses of data and to explore options allows them to make decisions almost instantaneously with no human intervention, empathy or ethical values. It may seem logical to program autonomous weapons for particular missions, but it would be impossible to model or control the simultaneous deployment of thousands of such weapons by both sides in a conflict. Such a war would rapidly spiral beyond any human control. As a result, the risk of war, intentional or accidental, is again increasing, in particular given the current unpredictable shifting of the geopolitical tectonic plates.

Third, war is no longer restricted to conflict between nation states or civil wars within a state. Many other actors are now involved, including terrorist organizations, fanatical religious movements, extremist groups situated on the far reaches of the political spectrum, and (transnational) organized criminal syndicates, all of which may be ready to kill and destroy without discrimination to reach their ends. Achieving peace no longer just means settling a dispute between countries, but must involve wider circles of participants and address many more causal factors.²⁸

Fourth, technology has not only created new armaments, but also new capacities to organize for collective good, to communicate and understand multiple perspectives, to search for common solutions, to build wide public understanding and support, and thus to create trustworthy institutions to resolve disputes peacefully and to create and maintain peace. Technology has also given us the means for unprecedented, highly reliable monitoring and oversight for new, internationally-agreed arms control measures.

Finally, for those who believe that we have always made war and shall continue to do so, we can provide the contrary example of various systems evolving to maturity, as for example, noted in studies of aggregate data in relation to the decline in violence generally across societies.²⁹ We should be now striving to reach a point of social maturity at a planetary scale of organization, beyond irrational systems based on ad hoc violence and contested domination, which, indeed are dangerously anachronistic given current interdependence and the global challenges we are facing. One important part of this is to leave warfare behind and to create more rational, civilized forms of dispute prevention and settlement (see Chapter 10). Modern scholars have exposed the constructed nature of international relations cultures marked by mistrust, secrecy and fear, and “competitive strategic mindsets,” noting that “alarmist zero-sum thinking is not inevitable, but a self-fulfilling outcome of the tendency of political and military elites to unthinkingly accept realist worldviews” which consider conflict as inevitable.³⁰ With accelerating, looming environmental crises on the horizon, the only realist worldview today requires devising new “win-win” intensively comparative and collaborative problem-solving strategies at the international level.

Self-Defense

The maintenance of military forces is often justified as necessary for self-defense. In a world where governments cannot be trusted and aggression has been frequent, this is understandable given the anarchic global system without adequate governance mechanisms. At present, there exists under international law (e.g., the UN Charter and precedent-setting international decisions and analysis) a relatively well-defined concept of national self-defense and when it is legitimate and legal in response to an attack or imminent threat by another state or nonstate actor. However, there is no universally binding international rule of law or enforcement, where assessments of actions said to be made in self-defense can be regularly made by a supervising judiciary. Likewise, the current Security Council and its permanent members have latitude, when convenient, not to take preventive action, or to ignore belligerent activities which would cause a threat to a state, or would go beyond the more established definitions of self-defense under international law. A reformed international judicial system with compulsory jurisdiction, including over the international crime of aggression (e.g., universal jurisdiction of the International Court of Justice and the International Criminal Court; see Chapter 10) will largely cure any ambiguity in a definition of self-defense, an ambiguity which indeed may be deployed cynically – or in an over-broad way – by various actors.

Under the current UN Charter, states are entitled to defend themselves until such time as the collective security mechanism of the Charter takes effect (see Article 51). A future amended Charter should include a similar sensible provision, although with the collective security responsibilities shouldered by the UN IPF (see Chapter 8). During a transition period of staged international disarmament (see below), care will be needed to ascertain, based on objective/non-political peace and security expertise, the current, interim and future “self-defense” needs of states given the new paradigm of enhanced collective security. Ultimately, the national possession of armaments should be determined by a new standard of the need for “internal security” rather than for “self-defense,” as a genuine system of international collective security takes root and its institutions mature.

Past Multilateral Disarmament Measures and Proposals

One would think that the suffering from World War II would push the nations most involved into intense efforts at disarmament to prevent future wars, as stipulated by the Charter. Unfortunately, for the military establishments of the victorious countries, the reverse was the case. Particularly between the United States and the USSR in the decades following World War II, disarmament proposals were repeatedly exchanged in the knowledge that they would be refused by the other side. If one side unexpectedly accepted a proposal from the other, it was rapidly withdrawn. The bilateral agreements adopted not infrequently served to authorize continued weapons development and it has been observed that disarmament proposals were generally made in bad faith to placate the public and other states.³¹ This refusal of the major military powers to cooperate in reductions in armaments contrary to their strategic goal of wide spheres of influence continued for many years, with, however, the very important breakthroughs achieved in the late 1980s between the US and the USSR (beginning with the INF Treaty in 1987 signed by Reagan and Gorbachev). As noted above, these achievements are currently under serious threat.

It is in this context that intergovernmental efforts at disarmament, mostly within the framework of the United Nations, need to be evaluated. The Box below, “A short history of multilateral disarmament measures and proposals,” based largely on UN sources, highlights the great efforts that have gone into multilateral disarmament agreements. Very regularly, however, the states with the most – or the most destructive – armaments have refused to cooperate fully, and disarmament efforts remain piecemeal, fragmented and prone to slow or obstructed progress.

Box A short history of multilateral disarmament measures and proposals³²

After the chaos of World War I, the 1925 Geneva Protocol prohibited the use of asphyxiating, poisonous, or other gases (as well as biological weapons) in warfare, but little further progress was made on international disarmament until after World War II. The United Nations General Assembly, in its first resolution adopted January 24, 1946, established a United Nations Atomic Energy Commission and set forth the goal of eliminating all weapons “adaptable to mass destruction.”

The 1963 Partial Test Ban Treaty aimed to end nuclear weapons testing in the atmosphere, underwater, and in outer space, but allowed it to continue underground.

One of the most successful agreements is the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) which opened for signature in 1968 and entered into force in 1970. It may have discouraged some states from developing nuclear weapons, with a few obvious exceptions. On May 11, 1995, the Treaty was extended indefinitely. A total of 191 parties have joined, including the five originally recognized nuclear weapon states. Article VI of the Treaty requires all states parties to negotiate in good faith on effective measures related to the cessation of the nuclear arms race and to nuclear disarmament, as well as on a treaty on general and complete disarmament under strict and effective international control. In 1996, the International Court of Justice issued a unanimous advisory opinion ruling that Article VI of the NPT required nuclear weapon states parties to the Treaty “to bring to a conclusion, negotiations leading to nuclear disarmament.” Four years later, at the 2000 NPT Review Conference, nuclear weapon states agreed to an unequivocal undertaking “to accomplish the total elimination of their nuclear arsenals.” At the 2010 NPT Review Conference, a large number of states supported the idea of beginning work toward a comprehensive nuclear weapons convention. The Conference, however, was unable to reach agreement to pursue negotiations. The 2015 NPT Review Conference was unable to adopt a final document. Despite relative success in non-proliferation, the Treaty has failed to achieve nuclear disarmament.

The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, the Biological Weapons Convention (BWC), a new instrument to supplement the 1925 Geneva Protocol, was opened for signature in 1972 and entered into force in 1975. The BWC has no implementing body and no means of monitoring implementation or verifying compliance.

At the first special session of the General Assembly devoted to disarmament (1978), member states recognized that the “continued arms race” was a “growing threat to international peace and security” and declared that the build-up of arms “threatens to stall efforts at reaching the goals of development” (General Assembly resolution S-10/2).

The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (more commonly called the Convention on Certain Conventional Weapons (CCW) and also known as the Inhumane Weapons Convention) entered into force in 1983. The CCW bans or restricts the use of specific types of weapons considered to cause unnecessary or unjustifiable suffering to combatants or to affect civilians indiscriminately. It has 125 states parties. The specific weapons targeted are described in protocols, which can be added as new risks are identified. They are the Protocol on Non-Detectable Fragments (Protocol I) with 118 states parties, the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended (Amended Protocol II) with 104 states parties, which is the sole legally binding instrument that explicitly covers improvised explosive devices; the Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III) with 115 states parties; the Protocol on Blinding Laser Weapons (Protocol IV) with 108 states parties; and the Protocol on Explosive Remnants of War (Protocol V) with 93 states parties.

In 1987 the United Nations Conference on Disarmament and Development was held without any significant effect.

The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, the Chemical Weapons Convention, was opened for signature in 1993 and entered into force in 1997. The Convention bans the development, production, stockpiling and use of chemical weapons. It requires states parties to destroy all stocks of chemical weapons within 10 years of its entry into force, and has been ratified by 193 states. To ensure compliance with the Convention, the Organization for the Prohibition of Chemical Weapons (OPCW) was established to carry out verification activities.

In December 1993, the United Nations General Assembly adopted by consensus a resolution calling for the negotiation of a verifiable treaty banning the production of fissile materials for nuclear weapons. The Conference on Disarmament (CD), which has been mandated to negotiate the Treaty, has long been considered to be the sole multilateral negotiating forum for disarmament treaties. The CD, however, has failed since 1998 to agree to commence negotiations or formal discussions on any topic. In 2009, the CD adopted a program of work for the first time in more than a decade, but was unable to implement it and remained deadlocked through 2016.

The Comprehensive Nuclear-Test-Ban Treaty, which bans all nuclear-related test explosions, opened for signature in September 1996 but has not yet entered into force.

The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, also known as the Anti-Personnel Mine Ban Convention or the Ottawa Convention, was developed through what has become known as the Ottawa Process, a partnership between civil society, governments, and the United Nations. It was adopted in Oslo, Norway, on September 18, 1997, and opened for signature in Ottawa, Canada, on December 3, 1997, with 122 governments signing the Convention at that time. It entered into force in March 1999 and has 162 states parties.

Small arms in global circulation are estimated to total at least 875 million. The trade in small arms has not been well regulated and is the least transparent of all weapons systems. More than 80 percent of the ammunition trade seems to remain outside of reliable export data. In 2001, two UN instruments on small arms control were agreed upon. Under the Convention against Transnational Organized Crime, countries adopted a Firearms Protocol. On the broader topic of small arms and light weapons, countries agreed on a program of action focusing on preventing the illicit trade in such weaponry. This politically binding instrument encourages all UN member states to adopt measures at the national, regional and global levels to prevent, combat and eradicate the illicit trade in these weapons.

Currently, there are no multilateral treaties that deal with missiles and their proliferation, and discussions about missiles in all their aspects at the United Nations have, thus far, resulted in no concrete policy recommendations. The two existing instruments are the Missile Technology Control Regime established in 1987 with 35 participating states, and the 2002 International Code of Conduct against Ballistic Missile Proliferation (also called The Hague Code of Conduct or HCOC) which has 134 subscribing states.

The Convention on Cluster Munitions, which outlaws the use, development, stockpiling, production, acquisition, retention and transfer of nearly all cluster munitions is the result of what has become known as the Oslo Process, the collaboration among governments, the United Nations, the International Committee of the Red Cross and other civil society groups to address the problem of cluster munitions. The Convention was negotiated and adopted at the Dublin Diplomatic Conference on May 30, 2008, and was opened for signature in December 2008, when it was signed by 108 states. It entered into force August 1, 2010. As of August 2017, 108 states had signed the Convention, of which 102 are states parties.

Until recently, there was no global set of rules governing the trade in conventional weapons. While a variety of national and regional control measures on arms transfers existed, they were too often lax or unenforced. In April 2013, the General Assembly approved the Arms Trade Treaty (ATT), the first-ever global treaty to establish common international standards to guide governments in deciding whether or not to authorize arms transfers. The ATT promotes cooperation, transparency, and responsible action by states in the international trade in conventional arms. The Treaty, which entered into force on December 24, 2014, regulates the international trade in almost all categories of conventional weapons – from small arms to battle tanks, combat aircraft and warships. Ammunition, as well as parts and components, are also covered. By August 2017, the ATT had 92 states parties.

Annually, Improvised Explosive Device (IED) attacks kill and injure more people than do attacks with any other type of weapon except firearms. The UN General Assembly passed a resolution (71/72) in 2016 urging, among other things, that states develop national policies to counter IEDs and take appropriate measures to strengthen the management of national ammunition stockpiles to prevent the diversion of materials for making IEDs to illicit markets and illegal and unauthorized groups.

In 2016, the United Nations convened an Open-ended Working Group (OEWG) taking forward multilateral nuclear disarmament negotiations. Subsequently, based on the recommendation of the OEWG, the General Assembly on December 23, 2016, adopted resolution 71/258, “Taking forward multilateral nuclear disarmament negotiations,” in which it decided to convene a United Nations conference to negotiate a legally binding instrument to prohibit nuclear weapons. Subsequently, on July 7, 2017, the Treaty on the Prohibition of Nuclear Weapons, the first multilateral, legally binding instrument for nuclear disarmament to have been negotiated in 20 years, was adopted. The Treaty prohibits a range of nuclear weapon-related activities, such as undertaking to develop, test, produce, manufacture, acquire, possess, or stockpile nuclear weapons or other nuclear explosive devices, as well as the use or threat of use of these weapons. However, the 122 countries that have adopted it do not include the countries with nuclear weapons or their allies in NATO, for instance.

After all of these efforts, where are we today? Global military spending is currently higher than at any time since the end of the Cold War (upwards of $1.7 trillion or 2.2 percent of global GDP). As of 2017, there were approximately 3,750 nuclear weapons deployed and ready for use globally. About 2,000 of these are reportedly kept on high alert, ready to be launched within minutes. In total, there are an estimated 14,465 nuclear warheads (operational, spares, active and inactive storage and intact warheads scheduled for dismantlement), enough to destroy civilization many times over and destroy most life on earth.³³

The costs related to nuclear weapons (to research, develop, build, maintain, dismantle, and clean up after them) are considerable. The United States spends about $30 billion per year just to maintain its stocks.³⁴ The United States Congressional Budget Office estimates that the total cost to modernize the country’s nuclear forces will be more than $1.2 trillion over the next 30 years (this amounts to $4.6 million per hour for 30 years.) And the United States Department of Energy reports that weapons activities have resulted in the production of more than 104 million cubic meters of radioactive waste.

Notwithstanding the critical, but seemingly momentary, progress associated with the close of the Cold War between the then two world superpowers, the major powers, and other states with military ambitions (also in regional contexts), have generally not signed or become parties to agreements that may limit their military capacity, and many other states have not respected them at one time or another. As a rule, there are significantly inadequate or non-existent international verification and enforcement mechanisms. What has also substantially been lacking, in addition to good faith commitments to the positive mutual goals of disarmament, is trust between states, as the Charter sought to establish. As noted, “security dilemmas” have strong psychological components.³⁵ What good is an agreement if you do not expect your competitors to respect it, and cheating is assumed to be the rule rather than the exception within a culture of cynical, low expectations? The progress made has been based on the good will of a majority of states, but not the most militarily endowed, who are often jockeying for relative power and influence.

Disarmament in Today’s World: Toward Systemic Arms Control and Disarmament

Disarmament is necessarily a complex and expensive process in itself, even apart from the destruction and recycling of arms and military equipment. It involves major industries and, not infrequently, an important part of national economies in countries with a significant military-industrial complex or arms sector. Local communities may be dependent on the spinoffs from the military presence. For millions of people, the military, as currently constituted, may be their profession and life, and millions of others are employed in the arms and related industries. Much research and technological development is funded for military ends and defense. Eliminating or repurposing such infrastructure may add up to some short or medium-term economic losses and a difficult transition for such economies. Disarmament is not just organizing the destruction of arms, but transforming a not insignificant part of society in some countries.³⁶

It is not that the military is an essential part of any government or economy. Costa Rica abolished its army in 1949 to prevent further military coups d’état and has remained peaceful when many of its armed neighbors suffer from chronic violence. It has devoted its resources to more constructive uses and stands out as a model for its region. Why has no other state copied its example?³⁷

As mentioned, disarmament cannot be undertaken if there is not already in place, or well on the way to being established, a binding alternative to war for dispute settlement and a legitimate international force sufficient to ensure collective security (see Chapters 8 and 10). The various processes of strengthening the international system need to be combined and carefully coordinated during a period of transition. Disarmament also needs to be integrated into a larger process of reallocation of national resources, redesign of certain aspects of the economy, and retraining of people. Funding will be necessary to provide both for the disarmament process itself, and for the alternatives to take the place of the military effort. Otherwise transformation may be resisted and the process blocked.

Proposals to Enable Modern Comprehensive Disarmament

At the international level, disarmament will only work to the extent that states feel that they are able to trust the process and objectively verify commitments; thus building trust through a range of the measures recommended here will be a necessary precondition and accompaniment to the disarmament process. “Confidence-building measures” are a necessary and common part of modern disarmament practice and should be employed systematically at the international level.³⁸ Each stage will need to be carefully defined and balanced, and binding in application. Full transparency and regular monitoring and inspection will be necessary to assure governments that there is no evasion of obligations, and all governments are held to objective standards. As noted in Chapter 8, a UN IPF is envisaged to be established in parallel to the process of disarmament, not only so it can, in extreme cases, intervene if any country tries to destabilize the disarmament process to its own advantage, but also to deal with other conflicts and to significantly strengthen the UN’s ability to fulfill its peace and security mandate.

A binding yet staged approach should be applied to the disarmament of all states for a reduction of armaments to those that are strictly necessary for self-defense,³⁹ an obligation that can be deduced from the language and intent of the current UN Charter (i.e., under which international use of force is strictly limited to self-defense or duly authorized collective security action). A revised Charter would make this norm clearer and binding on all states, with the corollary duty for states to disarm to appropriate levels within a certain timeframe. A special Standing Committee on Disarmament would implement and monitor this obligation. It could consist of 24 members representing all UN members. Following the proposal for membership in the Executive Council (see Chapter 7), five members (US, China, EU, Russia, and India) would get a single seat each and the remaining 161 members would be grouped in 19 clusters defined by geographical proximity and, to the extent possible, roughly equivalent voting power. Voting power for each of the 24 members would be identical to that in the General Assembly. Its first task would be to commission a transparent and arms-length scientific analysis by independent experts, without political interference, to determine the self-defense needs of each country, taking into account the existence of the new IPF. It has been noted that a key problem with multilateral disarmament processes to date is the extent to which they rely on consensus negotiations (in which parties try to maximize what they think to be in their own interests, to the detriment of a collective solution) without adequate mechanisms to ensure overall fairness in outcomes.⁴⁰ After the determination of appropriate limits, a staged approach of disarmament to required levels would then proceed, with a preparatory period⁴¹ and then a 10-year (or more) phase of disarmament proper (for most countries, depending on the weapons and equipment in need of decommissioning), all proceeding within the context of a thorough monitoring and inspection system by independent experts empowered by the Standing Committee.⁴² The latest techniques of remote sensing and monitoring/intelligence-gathering should make it possible to ensure that disarmament is proceeding to completion and that no attempt is made to hide or dissemble arms for later use.

Disarmament, particularly of the “great powers,” would have to follow a path of simultaneous execution by all nations, with every nation disarming proportionately. The work of the Standing Committee could consolidate, extend and incorporate, as appropriate, the United Nations Office for Disarmament Affairs, the Conference on Disarmament and other UN bodies or treaties linked to disarmament issues (e.g., the range of arms and weapons related treaties, the International Atomic Energy Agency – IAEA and other relevant bodies).⁴³ It should build on the acquired expertise and norms already agreed upon, while taking into account the new binding obligations of states under the revised Charter and binding commitments in existing instruments.

Nuclear weapons would be universally banned as immoral weapons of mass destruction, as required by the 2017 Treaty on the Prohibition of Nuclear Weapons, recently adopted by the majority of the world’s states. However, as the countries with the most nuclear weapons have been opposed to the Treaty to date, it will take confidence building, delicate diplomacy and firm disarmament commitments set out in modern security regimes to bring all such countries to the table. Biological and chemical weapons have already been outlawed by treaty, but enforcement is difficult since they are so easily manufactured and used; enhanced mechanisms will have to be employed. New and emerging forms of weaponry and warfare, including autonomous weapons, military artificial intelligence systems, nanomaterials,⁴⁴ and cyberwarfare, would have to be anticipated and included. No state should remain with any means at its disposal that would allow it to force its will on other states. In exchange, its rights and security would be guaranteed by the system of collective security, with obligatory alternative peaceful means of dispute settlement.

Such a fundamental shift in a conception of the classical attributes of national sovereignty represented by the military will involve a paradigm shift that is difficult for some. The most difficult cases may be authoritarian governments for whom fear (linked with militarization and types of violence), both internal and external, is a key instrument with which they are able to maintain power. A number of such governments have acquired, or sought to acquire, nuclear arms as the ultimate deterrent against any attempt to overthrow them from within or without. The military may be the principal instrument through which their power is exercised, when it is not the military itself that pulls the strings of government; such governments may see disarmament as prejudicial to their own power. The international community will need a strategy of positive incentives and stepped sanctions, or other coercive measures, if all other attempts to reason with such governments fail. Poor or dysfunctional national governance, in this domain as in all the other areas of the transition, will be a significant obstacle that may slow the application of comprehensive disarmament proposals.

Technical and Financial Challenges

Clark and Sohn considered in detail the main changes that would be needed in the UN Charter for effective disarmament, including a technical annex on the mechanics of disarmament that would be an inseparable part of the Charter.⁴⁵

As mentioned above, the level of and specifics applied to the disarmament of individual states, and a common collective standard for such disarmament, in the light of the new capacities and collective security responsibilities of the IPF, will have to be determined by an independent expert body, which would devote significant study and technical expertise to determining these standards, as well as to standards for the crucial ongoing verification and inspection criteria. Importantly, such an international expert body will have to be insulated from political, entrenched bureaucratic military and other pressures (e.g., those of the business sector presently engaged in the lucrative manufacture of weapons), in order to ensure that its determinations and proposals are truly independent and impartially based on technical expertise. The financing of the transition from a system based primarily on national defense to a genuine international collective security system could also be addressed by such an international expert group, making fair and realistic assessments of the amounts of international funding needed for countries and the international community to transition, and at what points national governments, for example, could start transferring (very substantial, in some cases) national defense expenditures to investments in collective security.

Disarmament is a technically difficult and expensive process. Most military equipment has no other more productive uses, and is too specialized to be modified, and so must be disarmed, dismantled, and recycled. In any case, equipment that could easily be reconverted for military purposes should not be retained. Munitions in particular were never designed to be dismantled, and the explosives within them can become unstable over time. Dumping in the sea was practiced after the two world wars, and created major problems later, so this is not an option. Nerve gases and biological weapons present special challenges requiring highly specialized facilities and precautions to neutralize them.

The military has usually been exempted from environmental regulations; many military facilities and arms factories are highly polluted and will require expensive clean-up. Firing ranges may be contaminated with duds and unexploded munitions. Returning such spaces to civilian uses will be a long and expensive process for which budgeting will have to be arranged.

Nuclear disarmament is a special case because of the dangerousness and toxicity of radioactive materials. The nuclear arms race has created an enormous burden that will inevitably weigh on future generations, producing large quantities of highly radioactive substances, which must be kept isolated from all contact with living things for many thousands of years, while ensuring that there is no risk of contamination over such a long period. The challenge in neutralizing the damaged Fukushima power plant is one example, as is the looming cost of dismantling the many nuclear power plants coming to the end of their useful lives. Adding the much greater quantity of radioactive isotopes from nuclear weapons and the facilities to manufacture them will make the problem much larger, especially since countries are still struggling to find safe places to store radioactive wastes. The risk of accidents is never zero.

It will be necessary to decide whether dismantling arms and storing the resulting wastes would benefit from economies of scale, suggesting the need for centralized facilities under United Nations control, or alternatively the risk of transporting such materials is too great and disarmament should take place close to the present locations of the arms. According to the “polluter pays principle,” the countries that manufactured or purchased the arms should pay for their elimination, but there may be cases where the burden would be more than a country could bear and some sharing of costs would be justified.

Since the financial costs of disarmament will be very high, military budgets should first be diverted to finance the disarmament process and the return of industrial capacity, facilities, and personnel to civilian uses. The peace dividend will not be immediate but will only emerge over time as the disarmament process advances.

Another challenge will be the resistance of the arms industry and defense contractors that have long benefited from the present situation and will shrink dramatically, if not disappear, with substantial, effective disarmament. To the extent that their technologies have other peaceful uses, they should be assisted to diversify in that direction. Another short-term transitional option would be to use them to destroy existing stocks of arms and munitions, military vehicles, aircraft, and naval vessels. It will be important in the long term that no country retains the capacity to manufacture arms and rearm itself rapidly. As noted in Chapter 8, arms production for the IPF would be controlled, monitored, or directed by the United Nations and distributed so that no country could seize significant capacity and turn it to its own uses.

Accompanying Measures

While disarmament would be a specific responsibility under the revised UN Charter, it will have many larger implications that cannot be ignored. A major part of the world economy, and its allocation of financial, industrial, and human capital, is devoted to the arms industry and related supply chains, not to mention the number of people presently employed in the armed services of states. People fight for their jobs, and those who are armed professionally, especially, must be offered alternatives before they will willingly give up their present occupations. As arms factories are closed or transformed, those employed need to be offered equivalent or better options. The disarmament process should be accompanied by a major retooling of the economy toward constructive ends, such as improvements in infrastructure, the transition to renewable energy sources, environmental restoration, resettlement of displaced populations, and other major needs.⁴⁶ In this respect, the global 2030 Agenda and Sustainable Development Goals offer an excellent blueprint to guide reinvestment and retooling of economies worldwide.

As military forces are demobilized or remobilized to work on global common challenges, they should be moved immediately into alternative occupations, with appropriate retraining, making use of existing skills whenever possible.⁴⁷ For some, skills from air forces and navies may be directly transferable to their civilian equivalents, and others will readily find a place in the security, emergency, and medical services. Leadership experience should also be easily incorporated into public institutions and the private sector. Since military personnel have always been paid from public funds, without the military contributing to the more productive economy, it should even be possible for the public funding to continue for a reasonable transition, so that financial security can be guaranteed to the personnel and their families. Similarly, communities that have benefited from the presence of military installations will need assistance in adapting their local economies, unless alternative uses for the facilities can be found immediately.

The Current Cross-Roads and Overcoming Political Obstacles

As noted by Gorbachev, the risks we now face together with respect to renewed – and, in some corners, relatively new (e.g., with increased military spending in parts of Asia)⁴⁸ – arms races are deeply troubling. The 2018 non-paper on disarmament of the UN Secretary General, in its wide-ranging scope and urgency in tone, indeed reflects this reality.⁴⁹ At the same time, we are facing an unprecedented planetary climate change and environmental crisis which has no parallel in human history.⁵⁰ Both the current trends with respect to renewed and new/pending weapons development, and climate change and global environmental degradation suffer from fundamentally incomplete, inadequate and ineffective international governance regimes.⁵¹ To confront the climate crisis, we badly need immediate and coordinated global investment in green technology, a proper green infrastructure to transition to a global negative carbon economy, as well as other mass investments for mitigation and adaptation to changing planetary conditions; all of this requires unparalleled international cooperation rather than a shockingly wasteful, distracting and destabilizing military contest. Indeed, it not only appears that major powers are again irresistibly being drawn into a suicide embrace with respect to weapons of mass destruction, but also in relation to the unabated and accelerating climate and global environmental crisis.⁵² We are truly at a global cross-roads.

The problem of global systemic and comprehensive disarmament must be faced squarely, with new ambitious plans, if we are going to be serious about sustainable international security, and the freeing of requisite resources and energies for urgent needs.

On the positive side, since World War II, we have seen significant advances in arms control and disarmament science and techniques, with a great deal of knowledge and expertise acquired at the international, national and regional levels.⁵³ Also, as noted above, we have seen a proliferation of worthy attempts at international arms control/disarmament (however piecemeal and incomplete), which could form the basis of and be consolidated into new, genuinely comprehensive, binding and universal plans for the international community.⁵⁴ Additionally, there are the recent notable and encouraging successes of transnational civil society efforts and “smart coalitions” (of civil society groups working with “like-minded states”), which have achieved important progress in arms control, including the 1997 Mine Ban Treaty, and the 2017 TPNW on nuclear weapons, among others. It remains to be seen whether the normative “soft power” of civil society actors and coalitions of countries considered to be middle powers might be more willing to take substantial action toward the “ethically obvious,” stepping into an enhanced leadership role for the benefit of the entire international system. As Gorbachev notes, “[f]aced with this dire threat to peace, we are not helpless. We must not resign, we must not surrender.”⁵⁵ Another voice of moral authority, Pope Francis, has recently warned, at an interreligious cooperation event among Christians and Muslims, that the future of the human race is in peril unless religions resist “the logic of armed power … the arming of borders, the raising of walls … . There is no alternative: we will either build the future together or there will not be a future.”⁵⁶ A serious plan for comprehensive international disarmament represents not only an ethical shift from the false and seemingly inexorable “logic of armed power,” but would represent, if well-designed and implemented, a transition to more stable and practical international security, alongside the freeing up of substantial financial and human resources. Moreover, the Charter has laid the foundation and shown the way; it is up to us to complete its system.

10 Strengthening the International Rule of Law

Law is, essentially, an order for the promotion of peace. Its purpose is to assure the peaceful living together of a group of individuals in such a way that they settle their inevitable conflicts in a peaceful manner; that is, without the use of force, in conformity with an order valid for all. This order is the law.¹

Hans Kelsen

In a very real sense, the world no longer has a choice between force and law. If civilization is to survive, it must choose the rule of law.²

Dwight Eisenhower

International Legal Institutions: A Job Half-Done

The realization of the mandatory and systematic peaceful settlement of international disputes, the practical transition to binding adjudication at the international level, and the strengthening of key international legal institutions on a macro scale in service of the same, has, with some exceptions, received vastly inadequate attention in international policy circles and in academia. Yet, as Kelsen notes above, such a concrete transition would be the hallmark of a shift from primitive sociological conditions marked by precarious and unpredictable violence, to a rational system based upon sound international norms, facilitating a global durable peace and accompanying prosperity which could be associated with such a peace.

It would seem obvious that the transition from an essentially “war-lord” system at the international level – or a version of Pax Romana based on the most recent ascendant international hegemon – with war or the threat of war employed as a means to resolve disputes or to further political goals (to paraphrase von Clausewitz), is a significantly inferior approach to international conflicts than would be a viable, effective rule-based international dispute resolution system. War has always been expensive, unpredictable, callous to suffering and wasteful of lives. This is even more the case given the stakes in contemporary times with modern warfare, as noted above by Eisenhower in 1958, and with intensifying salience resulting from recent developments in cyber warfare and “killer robots,” not to mention ongoing nuclear and other threats (see Chapter 9). Moreover, in the current shifting global and regional power contests and the possibility of renewed arms races, it would seem to be in the enlightened self-interest of the vast majority of states to work for a truly rule-based international system with obligatory peaceful dispute settlement and more enforceable international law.

Every country in the world has something resembling a legal system, to varying degrees of efficacy, and is accustomed to the idea of judicial dispute resolution; the imposition of an international rule of law should be no great leap of imagination for any nation. Certainly, multiple UN statements and declarations (see below) testify to a consensus on the merit and centrality of the international rule of law for a viable global order. It is also hard to imagine any international system which could be deemed to be humane or civilized, by any definition, that is not based on the rule of law and duly constituted, legitimate international legal institutions.

The notion of “peace through law” is a key precept embedded at the heart of the modern international order, clearly conceived within the context of a variety of interdependent provisions of the current UN Charter. As the first enumerated purpose of the UN, the Charter sketches its system for the centralized monopoly on the use of force, to be employed only in the collective interest (within UN machinery and according to the principles established), and with the “adjustment or settlement of international disputes or situations which might lead to a breach of the peace [to be resolved] in conformity with the principles of justice and international law” (Article 1(1)). This purpose is interdependent with the setting up of a comprehensive system for the regulation of armaments under Article 26 of the Charter (see Chapter 9). As Louis Henkin convincingly argues, the Charter was in fact meant to outlaw war, noting that the terminology of “war” is only used once in the Charter’s preamble as the “scourge” wished to be prevented. Instead the Charter uses new technical language in the context of the collective security system it establishes, including “threats to the peace,” “breach of the peace,” “acts of aggression,” and “threat or use of force.” Henkin notes that with the Charter, “international law sought to eliminate the word “war,” the legal status of war, the institution of war, and the concept of war.”³

More generally and relatedly, the Charter in its preamble, sets out a key goal of the UN to “establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” More particularly, it encourages and establishes the means for “the progressive development of international law and its codification” (Article 13(1)(a)). The International Law Commission was created by the UN General Assembly in 1947 under Article 13(1)(a) and has undertaken a long series of significant studies in relation to its mandate. As a foundational instrument for a reformed international order, the Charter sketches a rather clear path for the progressive maturation of an international legal order, hopeful that the international community will do its homework.

Yet, despite these fundamental goals embedded in the 1945 Charter and in earlier international governance initiatives meant to establish systems for sustainable peace, today we can still meaningfully ask the question as to “[w]hy are scholars and decision-makers so focused on war and not peace more broadly?”⁴ Part of the answer is that the conditions necessary for peace (both “positive” and “negative,” with the latter being the mere absence of armed conflict and the former involving further integrative cooperation and other salutary features) may be less “observable,” because they are more diffuse and involve more interactions and complex institutional interrelationships than do more discrete and event-based battles or wars, however devastating such conflicts may be.

Designing and ensuring a sustainable peace requires the strengthening of multiple parts of the international system, and in particular, we argue, properly implementing an international rule of law and Chapter VI of the Charter, which has also been seriously neglected. A key, indispensable part of the international system – alongside effective collective security institutions/norms and meaningful arms control/disarmament – are strong international legal institutions (see also Chapters 10 and 18, proposing an International Human Rights Tribunal and an International Anti-Corruption Court).

After some notes on the historical process of the establishment of the war prohibition in international law and notions of “peace through law,” as well as dovetailing perspectives from modern peace research, this chapter turns to several international norms or institutions which, essentially, remain incomplete and inadequate, including Charter Chapter VI, the International Court of Justice (ICJ) and the International Criminal Court (ICC). It also briefly explores the establishment of an international judicial training institute and a possible office of an international attorney general (as proposed in the 1950s/1960s by Clark and Sohn), as further ways to strengthen the basic international legal infrastructure. Such efforts to make the international legal system more viable are interdependent with the ability to move toward a legitimate and effective (rule-based) collective security mechanism (see Chapter 8), and the potential for meaningful, substantial international disarmament, cutting off perennial arms races (see Chapter 9). Such efforts are particularly urgent given contemporary vicissitudes in international power configurations or aspirations.

From Kant to Habermas: In Search of a Broader Perspective

War is mischief upon the largest scale.⁵

- Jeremy Bentham

Philosophers and thinkers since at least Diogenes and Dante (see Chapter 2) have set forth a vision of some sort of globally shared civitas or rationally organized international order, well before Clark and Sohn and those thinkers proximate to the drafting and adoption of the 1945 UN Charter; the latter can indeed be seen as a testament of the soundness of the ideas of earlier philosophers. One should recall this intellectual history with respect to the centrality of the notion of international law and legal order in many of these visions.

It is not always well known that British philosopher Jeremy Bentham, credited, in fact, with coining the term “international,”⁶ set forth a Plan for an Universal and Perpetual Peace in the late 1780s. It proposed “a plan of general and permanent pacification for all Europe” through binding treaties, with military reductions, the renunciation of colonies and “a Common Court of Judicature” to settle disputes between nations.⁷ Immanuel Kant’s 1795 essay on Perpetual Peace is more widely known,⁸ where he sketches various models of unions of states, formed in service of international peace, and the preliminary requirements to create such a union (e.g., a prohibition on the use of force to interfere with the governments of another nation or annexation of another state’s territory, certain laws of war including prohibiting the use of assassins, prohibition of secret reservations to peace treaties where future war is contemplated, the gradual abolition of standing armies, etc.). He also proposes three other conditions he deems as necessary foundations for a deeper, permanent peace among nations, most famously including the republican constitutional nature of their internal governments (as well as entering into a federation of free states and practicing a law of universal hospitality). He describes what he views as the realistic evolution of such a union of states as follows:

For states, in their relation to one another, there can be, according to reason, no other way of advancing from that lawless condition which unceasing war implies, than by giving up their savage lawless freedom, just as individual men have done, and yielding to the coercion of public laws. Thus they can form a State of nations (civitas gentium), one, too, which will be ever increasing and would finally embrace all the peoples of the earth. States, however, in accordance with their understanding of the law of nations, by no means desire this, and therefore reject in hypothesi what is correct in thesi. Hence, instead of the positive idea of a world-republic, if all is not to be lost, only the negative substitute for it, a federation averting war, maintaining its ground and ever extending over the world may stop the current of this tendency to war and shrinking from the control of law.⁹

Aspects of Kant’s vision of a weaker union of states as described has to some extent come true in the “negative” interstate peace generally felt to be established by the United Nations, now embracing essentially all countries of the earth. In terms of the further evolution of the international system, as Kant believed the idea of a genuine and more integrated “perpetual peace” of nations to be a moral and rational ideal (with moral/rational capacities inherent to the human subject), he affirmed its practicality: “[n]ature guarantees the coming of perpetual peace, through the natural course of human propensities; not indeed with sufficient certainty to enable us to prophesy the future of this ideal theoretically, but yet clearly enough for practical purposes.”¹⁰

While the European Enlightenment saw a flurry of “perpetual peace” plans, the intellectual thread has continued, albeit usually not at center stage in international politics, which has tended to be dominated by international relations theorists and what have been called realist thinkers. Austrian jurist and legal philosopher Hans Kelsen wrote a number of works on the international legal system – as it then was and/or how it could or should be – before and around the time of the adoption of the 1945 UN Charter. Like any good jurist, but with a very singular confidence and broadness of view, Kelsen seems to clearly wish to see the international legal system built as a legal system parallel to what we find in functional national systems, advocating for the “slow and steady perfection of the international legal order.”¹¹

Writing Peace Through Law in 1944 just before the adoption of the Charter and seeking to learn from the frailties of the League of Nations arrangement, Kelsen was adamant that strengthening international law was fundamental to preventing new world wars.¹² He advocated for the holding of individuals to account for war crimes and the mandatory settlement of disputes between states at an international court. Conflicts between states should be handled as legal matters, with international court(s) also empowered to develop the law over time, as has occurred in national systems. Kelsen viewed the establishment of mandatory international juridical mechanisms as less controversial than establishing, for example, an international legislature and executive, and more fundamental to the prevention of war and to the creation of a stable international order.

In our time, Jürgen Habermas has taken up the torch, recently criticizing policymakers, within Europe (given certain events occurring at the time of his writing) and beyond, for what he diagnoses as a “[p]anic-stricken incrementalism betray[ing] the lack of a broader perspective” of the civilizational process of global society within which we find ourselves:

The enduring political fragmentation in the world and in Europe is in contradiction with the systemic integration of a multicultural world society and is blocking progress in the process of legally civilizing violence between states and societies.¹³

He sees the need for

a convincing new narrative from the perspective of a constitutionalization of international law that follows Kant in pointing far beyond the status quo to a future cosmopolitan rule of law: the European Union can be understood as an important step on the path toward a politically constituted world society.¹⁴ (See Chapter 3.)

Indeed, at the international level, we now have functioning supranational legal institutions, such as the Court of Justice of the European Union and the European Court of Human Rights (among other important regional courts), which may point the way for further developments at the international level. Moreover, we have a great deal more technocratic and formal expertise developed in relation to the international administration of justice, with a by now very significant developed body of international law (based on International Law Commission work, decisions of the ICJ, the work of various other UN agencies, other treaty regimes, etc.) yet we seem to have far less self-confidence and assurance than thinkers such as Bentham, Kant, and Kelsen – or merely understanding – of the path on which we are on. Technically we are much better equipped to realize these compelling “civilizational” visions, embracing and reflecting the diversity of the whole of humanity.

The Thread of History: Early Efforts at Peace through Law

In order to understand where we currently stand in terms of the evolution of an international legal system, it is also useful to recall parts of the history of the collective thinking, incorporated into early treaty law, which eventually lead to the ideas enshrined in the 1945 Charter. Proposals for a rational, rule-based international order to ensure “durable” peace have, as briefly described, an impressive pedigree of support from major philosophers, and also, a history of vigorous popular transnational civil society advocates who have been active from very early stages of interstate dialogue on international governance and on building a viable international “peace system.”¹⁵ As just one remarkable and illustrative example, women’s organizations composed of thousands of individuals from 18 countries sent written and telegram messages to sister organizations around the world as well as to the governments of major powers convened by Tsar Nicholas II at the 1899 First Hague Peace Conference. Just one of these extraordinary messages reads as follows:

We, the women of the United States, extend to the women of Germany sympathetic and affectionate greetings. We feel profoundly grateful that the women of the world have been aroused to the need of international relationship through their desire to support the initiative made by His Majesty the Czar of Russia in behalf of gradual disarmament.

We of the United States regard gradual disarmament, the object of which the Conference at the Hague is convened, as the first step in a perhaps long but straight path which humanity is destined to walk, and which leads undeniably to the goal of universal peace maintained by universal obedience to the decisions of a permanent Court of Arbitration.¹⁶

As reflected in this telegram, the hope was that international, interstate arbitration – that is, neutral, third-party dispute resolution – along with “gradual disarmament,” would be the vehicle to finally put an end to war. Such early “norm entrepreneurs”¹⁷ included what we would now call “grassroots” civil society advocates, but also international officials, civil servants, and prominent diplomats, both active and retired. For example, recent scholarship has shed further light on the importance of the “Kellogg–Briand Pact” of 1928,¹⁸ so-named for its conceivers, US Secretary of State Frank Kellogg and French Foreign Minister Aristide Briand.¹⁹ The treaty, also known as the Paris Peace Pact, “condemn[ed] recourse to war for the solution of international controversies,” and obliged the contracting parties to “renounce it as an instrument of national policy in their relations with one another” (Article 1). States joining the treaty, which included the US, France, Germany, Japan, the USSR, the UK, China, India, and others (for a total of more than 63 states worldwide and virtually all members of the League of Nations) agreed “that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means” (Article 2).

The Pact has traditionally been assumed to be a failure as it did not succeed in preventing, obviously, the slaughter which was World War II. However, Oona Hathaway and Scott Shapiro have recently contested this view of the Pact, and rather position it as a watershed moment in laying the necessary normative groundwork for subsequent developments:

The Peace Pact was naïve – but not for the reason most think. Outlawing war did work. If anything, it worked too well … . By outlawing war, states renounced the principal means they had for resolving their disputes. They demolished the existing system, which had allowed states to right wrongs with force, but they failed to replace it with a new system. This was in part because there already was an institution – the League of Nations – that seemed poised to resolved disputes. But the League of Nations was built on Old World Order principles. It, too relied on war and the threat of war to right wrongs and enforce the rules. In a world in which war was outlawed, however, the League’s enforcement mechanism was grounded in a power that states were reluctant to wield.²⁰

Hathaway and Shapiro note that while the “Pact repealed the core principle of the Old World Order” it “did not replace it with a new set of institutions,” which would include, for example, a viable collective security mechanism and sufficiently strong peaceful international dispute settlement mechanisms (such as those we are suggesting in this book, building on the first efforts of the 1945 Charter). In the wake of the carnage of World War II and the failure of the League and related endeavors (including the Paris Peace Pact), the 1945 UN Charter constituted the next very significant advance in establishing and fleshing out crucial new international norms, with, also, an attempt to establish and pave the way for new institutions and mechanisms to support these norms. The Charter indeed could be seen to be another quantum leap forward in establishing the binding obligation of peaceful settlement of international disputes and has been dramatically successful in many respects in greatly reducing the incidence of interstate war since 1945 (e.g., see the range of studies cited in Goertz et al.)²¹ What is probably critical to realize at this juncture in history, is that the institutions, procedures, and basic knowledge of the need for a strong collective security system and peaceful international dispute resolution among national decision-makers, in practice, still remains dangerously weak; we are still in the middle of an important institution-building phase (and a phase of understanding the basic logic of the system meant to be established in 1945), as we take forward the “civilizational process” mentioned by Habermas.

Modern Peace Research

Contemporary peace research affirms that important international norms, gaining progressively widespread traction, do matter, as do supranational institutions, which provide opportunities for nonviolent international dispute resolution. In the “first systemic and comprehensive data set on international peace,” Goertz et al. sketch how a normative “tipping point” was reached with the “hugely influential” norms on territorial integrity promulgated in the UN Charter and in the post-1945 era.²² It has been shown empirically that boundary and territorial disputes are a prime cause of interstate conflict or “war,” and Goertz et al. show, based on their comprehensive analysis, how the new international norms and the increasing range of international conflict management mechanisms available, including mediation and adjudication, have indeed led to the remarkable post–World War II “long peace” marked by a very significant statistical decline in interstate war.²³

Hathaway and Shapiro likewise note the dramatic transition with respect to territorial annexation, pointing to an even earlier demarcation of a new international norm “taking hold” from the time of the Kellogg–Briand Pact:

The New World Order is not simply the law. States actually obey it. There have been breaches, of course – for example, Russian president Vladimir Putin’s brazen annexation of the Crimea in 2014. But the disparity between the world before and after the Peace Pact is extraordinary. Russia’s seizure of Crimea is the first significant territorial seizure of its kind in decades … in the century before 1928, states seized territory equal to eleven Crimeas a year on average … the likelihood that a state will suffer a conquest has fallen from once in a lifetime to once or twice a millennium [emphasis in original].²⁴

Goertz et al. note the declining utility of the use of force as a means to tackle modern conflict, confronting “realist” assumptions head on that the use of force is generally the preferable or the common “go to” option.²⁵ In fact, furthering this observation, Azar Gat notes that “[a] map of the world’s ‘zones of war’ strikingly reveals the correlation, and suggests the causal relationship, between modernization and peace.”²⁶ He suggests the reason “is that the violent option for fulfilling human desires has become much less promising than the peaceful option of competitive cooperation … [and] [f]urthermore, the more affluent and satiated the society and the more lavishly people’s most pressing needs are met.”²⁷

However, at the same time Gat warns that

much of humanity is still going through the process of modernization, and is affected by its pacifying aspects, while struggling to catch up and charting various cultural and national paths, some of which are and may remain illiberal and undemocratic… [while at the same time] some parts of the world have so far failed in their efforts to modernize, yet experience many of the frustrations and discontents of that process.²⁸

Such an observation puts in relief the crucial nature of other aspects and purposes of the United Nations (e.g., related to social and economic development), and the international system more generally in facilitating the delivery of sound, participatory governance and a measure of shared prosperity at the national level. Establishing international institutions on a firmer democratic footing (see Chapters 4 to 6 on enhancements to the General Assembly as it currently stands), improving global anticorruption and human rights oversight (see Chapters 11 and 18), and ensuring economic and environmental sustainability (see Chapters 13–16) are all vital initiatives in this respect.

United Nations Work on the International Rule of Law

The unanimously adopted 2015 Sustainable Development Goals exemplify a recent strong example of the international community’s embrace of the central goal and importance of establishing and strengthening the “rule of law” at the international and national levels, across issue areas. In particular, Goal 16 is to “[p]romote peaceful and inclusive societies for sustainable development, provide access to justice and build effective, accountable and inclusive institutions at all levels,” with a specific target to “[p]romote the rule of law at the national and international levels and ensure equal access to justice for all.”²⁹

As mentioned, the UN Charter sought to establish, in 1945, the fundaments of an international order based on the rule of law. Building significantly on this foundation, within the last 20–25 years especially, a host of official international statements issued by various UN bodies and UN members collectively have reiterated an international commitment to the “rule of law” as a key principle in establishing a workable global order, as well as in addressing a range of specific issues of concern. The intensification of references to the rule of law as a governing principle at the global level was likely facilitated by a post–Cold War environment marked by fewer “ideological tensions” and far greater consensus for the governance model of “democratic polity founded on the rule of law,” as reflected in the work of the United Nations (see, e.g., the bold 1996 report, An Agenda for Democratization, submitted by UN Secretary General Boutros Boutros-Ghali to the General Assembly).³⁰

The UN General Assembly first notably considered the ‘the rule of law’ in connection with its 1993 Vienna World Conference on Human Rights, which convened representatives of 171 states, with some 7,000 participants overall, to chart out a new international human rights agenda.³¹ The Office of the High Commissioner of Human Rights was subsequently established, with the Third Committee of the General Assembly also adopting annual resolutions on “strengthening the rule of law” from 1993 until 2002, reaffirming that “the rule of law is an essential factor in the protection of human rights, as stressed in the [Universal] Declaration [of Human Rights], and should continue to attract the attention of the international community.”³² Recent statements of the Human Rights Council have noted that “human rights, democracy and the rule of law are interdependent and mutually reinforcing,” referring to work of the Secretary General to “address[…] the ways and means of developing further the linkages between the rule of law and the three main pillars of the United Nations: peace and security, human rights and development.”³³

The UN World Summit in 2005, and the resulting World Summit Outcome document, adopted unanimously by all world leaders convened, was another prominent occasion where the “rule of law” was highlighted as a key area of shared commitment.³⁴ The Outcome document delineates four areas of priority needing investment in order to “create a more peaceful, prosperous and democratic world”: (1) development; (2) peace and collective security; (3) human rights and the rule of law; and (4) strengthening the UN.³⁵ The world leaders noted that “good governance and the rule of law at the national and international levels are essential for sustained economic growth, sustainable development and the eradication of poverty and hunger.”³⁶ A section of the Outcome document devoted to the rule of law reiterated UN members’ commitment to “an international order based on the rule of law and international law” and recognized the need for “universal adherence to and implementation of the rule of law at both the national and international levels.”³⁷

Following the World Summit, “The Rule of Law at the National and International Levels” was added to the agenda of the Sixth Committee (Legal) of the General Assembly, with a series of Assembly resolutions on that theme from 2006 to 2016, as well as annual reports on “Strengthening and coordinating United Nations rule of law activities” produced by the Secretary General.³⁸ A 2012 High Level Meeting on the Rule of Law was held upon the opening of the 67th Session of the General Assembly, where member states made over 400 pledges to advance rule of law concretely at the national and international levels, and, in their Declaration, among other things, “reaffirm[ed] that human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations.”³⁹

The above is a sample of some of the notable highlights in recent UN rule of law “discourse,” which stretches across a range of bodies and thematic areas, including also, for example, such issues as counterterrorism, transitional justice, gender equality, international development and sustainability, among other matters. The Security Council first introduced “rule of law” language into resolutions in 1996, and has engaged with this concept in a number of ways, including, for example, with the establishment of the special criminal tribunals for Rwanda and the former Yugoslavia, making referrals to the ICC, and passing resolutions in relation to rule of law as a key component in post-conflict peace-building situations.

The Need for an International Cultural Shift

The legitimacy and soundness of the rule of law as the basis for the conduct of international affairs has been clearly recognized in authoritative “top down” international statements, endorsed by global political leaders representing virtually all of humanity, as well as in the incisive prescriptions of major thinkers, civil society advocates and far-sighted diplomats. If there is going to be further concrete progress on this topic and the political will to push through major reforms, there will likely also have to be the further cultivation of the necessary cultural conditions responding, for example, to the sociological/anthropological observation that “[t]he rule of law presupposes the coming together of commitment to common values (which are marked, at the level of custom, by the presence of spontaneous and collective sanctions such as moral disapproval) and of the existence of explicit rules and sanctions and normalized procedures.”⁴⁰ Fortunately, however, we already see such trends in the cultural embrace of key international legal rules, as noted by Hathaway and Shapiro, and Goertz et al., above (see also, for example, the work of Harold Koh and others analyzing why many states might generally obey international law most of the time, despite the absence of vigorous enforcement).⁴¹

Education, therefore remains of supreme importance, certainly of the general public, who may be too easily manipulated by misinformation about more remote international institutions,⁴² but also of the intelligentsia and “elites” of various nations.⁴³ Foreign service, diplomatic, and military personnel and leadership at all levels, too frequently still remain within exclusively military security or geopolitical perspectives in their approaches to international affairs and national security, and often do not have adequate knowledge of the primacy, practical operation, and fundamental purposes of international dispute resolution institutions. There is still insufficient training, at global, regional and national levels, of international diplomats in the peaceful settlement of international disputes and collective security as core aims of the post-1945 world order. Policymakers around the world should better understand the basic logic of why judicial dispute resolution is (far) superior to a “solution” by use or threat of force, for rational, ethical and very compelling financial and practical reasons. The international community is wont to complain of the costs of various international tribunals (for example, international criminal tribunals); but these institutions, if invested in to be significantly more effective, are much cheaper than renewed arms races and “preventative” military expenditures (which, in fact, often have the opposite effect and destabilize relationships or situations in classic “security dilemma” scenarios; see Chapter 9).

Additionally, anthropologists have more recently weighed in in terms of analyzing the social conditions necessary for a durable peace among groups of administrative or “territorial sub-units,” which would include, for example, states at the international level. Douglas Fry, in Science, has set forth a theory where he identifies at least six characteristics of “peace systems” among disparate groups of nations or other human communities.⁴⁴ The characteristics include: an overarching social identity; interconnections among subgroups; interdependence; nonwarring values; symbolism and ceremonies that reinforce peace; and, superordinate institutions for conflict management. Fry’s examples of such systems include the Upper Xingu River basin tribes of Brazil, the Iroquois Confederacy of upper New York State, and the European Union (see Chapter 3 on the latter). Federated states, of course, are also a genre of a stable “peace system,” likely possessing of the requisite characteristics identified by Fry. The international community at present has very substantial interdependence, and perhaps increasing interconnections among subgroups (in particular within various regions), but remains greatly lacking in the other characteristics identified by Fry, including adequate superordinate institutions for conflict management.

An “Utterly Unsatisfactory State of Affairs”: Suggestions for Institutional Enhancements

In comparison with domestic legal systems, notes the great modern Italian jurist, Antonio Cassese, “the position of the international community appears totally rudimentary” in relation to promoting compliance with law and the preventing or settlement of international disputes in a compulsory and binding fashion.⁴⁵ With some exceptions, the international legal system has not yet matured into what might be considered a true rule of law system, and further vital steps should be taken toward remedying what Cassese has termed an “utterly unsatisfactory state of affairs.”⁴⁶ Indeed, since the adoption of the 1945 UN Charter, types of mandatory and binding dispute settlement systems have developed in relation to various specific topics (such as in trade and the international regulation of the law of the sea), which show the international community’s readiness to engage in such binding settlement, and present models that could be drawn upon for reform in other areas.

This section suggests overview perspectives on what we deem as necessary and fundamental enhancement of Chapter VI of the current UN Charter on the peaceful settlement of disputes, including, in particular, the strengthening of the ICJ. We also discuss the ICC as a key institution in the modern international order, the requirement of greatly enhanced international judicial training as a corollary to enhanced institutions, and a possible eventual office of UN Attorney General.

Obligations under Chapter VI of the Charter of the United Nations

Given the key place that the peaceful settlement of disputes was meant to play in the modern international order, Chapter VI on the Pacific Settlement of Disputes, which has not been implemented within the international system to the extent anticipated in 1945, is a notably unrealized attribute of the Charter. As discussed in Chapter 8 on the establishment of an International Peace Force – and as described above, in relation to the evolution of an international system away from the arbitrary and unpredictable use of force – peaceful settlement of disputes among states is a core principle that is also linked to viable collective security, prohibitions on the unilateral use of force, and disarmament; the latter become very difficult to realize without it. Perhaps because of historical biases toward notions of military security (and the mainstream assumption that states will always seek to jockey for “hard power”; contradicted by scholars such as Gat and others), Chapter VI remains largely an afterthought, both in academic and policy circles.

Article 2(3) of the Charter sets out the obligation of all UN members to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” Article 33(1) subsequently sets out a nonexhaustive “menu” of ways states may settle their dispute if it is likely to endanger the maintenance of international peace and security: “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice” (see discussion in Chapter 8). Article 33(2) empowers the Security Council to “call upon” the parties to settle their disputes by such means when it deems it necessary in the interests of international peace and security, with other Articles under Chapter VI also giving the Security Council powers of recommendation in relation to conflicting parties or situations. However, unlike Chapter VII action by the Security Council, the consensus is that such suggestions of the Security Council are not binding on members. It is reported that John Foster Dulles, while serving as the US Secretary of State in the 1950s under President Eisenhower, had considered reforms to strengthen the pacific settlement of disputes as a priority topic in Charter revision, among several other matters, in the scope of a general Charter review conference that was meant to be held within 10 years of its adoption (he eventually abandoned hope of such a conference due to the Soviet position at the time, among other concerns).⁴⁷

In relation to what has been accomplished under this Chapter since 1945, Tomuschat notes that “[a]ll observers agree that the SC [Security Council] has achieved only modest results in implementing Article 33(2) and more generally within the entire framework of Chapter VI,” commenting that “[a]pparently, the institutional pressures exerted upon the parties to a dispute in accordance with Chapter VI are somewhat lacking in persuasive impact.”⁴⁸ Also, if one accepts theories of leading by example, it is telling that currently only one permanent member of the Security Council has accepted compulsory jurisdiction of the ICJ (see the following section on the ICJ).

It seems clear that, due to the importance of this norm, Chapter VI should be transformed into a series of hard obligations, with binding procedures for the peaceful settlement of international disputes between parties, before collective security action or other coercive measures are contemplated. A revised Charter Chapter on the peaceful settlement of disputes could include clear procedures in relation to the sequencing and timing of the range of dispute resolution mechanisms currently listed in Article 33(1) (“negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements”), striking a balance between some flexible choice as to method and an obligation to engage in peaceful resolution in a timely manner.

There now exist a range of models, for example that of the World Trade Organization (WTO), from which such an improvement could take inspiration. The WTO, currently with 164 state members, employs an innovative, multilayered dispute resolution procedure adopted in 1994, which involves first notification and consultation to find mutually satisfactory solutions, followed by employment of good offices or conciliation by the WTO. If this is not successful, a grievance can be escalated to a complaint to a panel of independent experts, which issues both interim and final reports, with opportunity for further comment and consultation in relation to these reports. A party may subsequently appeal to an appellate body (with monitoring of compliance with its report, and the possibility of countermeasures by the aggrieved party), with a final “appeal” to binding arbitration as the last level of dispute resolution.⁴⁹

To facilitate the efficacy of such mechanisms, additional standing bodies or panels of independent experts, such as within the frame of a new global “Mediation and Conciliation Commission,” could also be created, whose recommendations would not be binding, except with the consent of the parties. Clark and Sohn in World Peace Through World Law suggested a “World Conciliation Tribunal” and a “World Equity Tribunal,” with the former performing independent investigation of situations to seek to bring the nations concerned to agreement, and the latter possessing the authority to recommend a solution to a given dispute (while taking care to respect the determination of any crucial legal matters by the ICJ). Such bodies, which could remain complementary to similar bodies at the regional level, were considered to be necessary to ensure conflict prevention and general international or regional stability, and/or to put an end to long-standing and festering conflicts that impede cooperation and further economic and social development. Disputes could be referred to such bodies by the General Assembly or Executive Council, as required, before a conflict or potential conflict has ripened into a destabilizing situation.

In relation to the norms established in Charter Chapter VI, there has been by now widespread (albeit uneven) recourse to and acceptance of peaceful, third-party dispute resolution (primarily, but not exclusively, on a voluntary basis), across a range of important areas, with a truly impressive increase in use of supranational tribunals and other conflict resolution bodies.⁵⁰ Such state practice signals a general acceptance, at the “cultural” level, of these mechanisms, and a maturity of the international system, which can be further consolidated and firmly institutionalized. It is very costly if this main Charter mechanism lags far behind contemporary dispute resolution practice, especially as these provisions are meant to deal with very fundamental issues of international peace and security.

The International Court of Justice

Within the Charter’s Article 33 list of enumerated methods, which states may employ to fulfill their obligations for the peaceful resolution of their disputes, is “judicial settlement.” Again, at the domestic level, every legal system would be endowed with a system of judicial settlement of disputes, central to its operation, ensuring that duly constituted laws are applied and enforced.⁵¹

The preeminent judicial body created at the time of Charter adoption is found under its Article 92, establishing the International Court of Justice (ICJ) to serve as “the principal judicial organ of the United Nations,” tasked with resolving interstate disputes. The ICJ functions in accordance with the statute of the court that is annexed to the Charter. Because the ICJ and its statute are incorporated into the Charter, like various other aspects of the Charter, it has remained largely “frozen in time.” Although there have been many suggestions for (usually modest) ICJ reform throughout its life, emanating from a variety of sources,⁵² reform achievements have been largely confined to “practice directions” and fleshing out supplementary procedural rules relevant to the court’s operation. International dispute resolution at more recent international institutions and under other important multilateral regimes (for example, as mentioned above, under the WTO or the UN Convention on the Law of the Sea (UNCLOS), or at various international criminal law tribunals) has, in the modern era, by now outpaced the ICJ in sophistication of design, functional architecture and rules of procedure and evidence. With the proliferation of international laws and intensifying interdependence among countries, which inevitably gives rise to disputes and legal matters to be clarified, a substantial update of the principal judicial organ of the United Nations is by now long overdue.

All members of the United Nations are ipso facto parties to the Statute of the ICJ under Article 93 of the Charter, which however, does not grant the court automatic jurisdiction over the parties to a given dispute. The ICJ may take jurisdiction over a case upon the agreement of the parties in relation to a specific dispute, based on a compromissory clause in an individual treaty to which a state is a party, based on what may be deemed to be acquiescence in a given situation, or upon special declarations accepting the compulsory jurisdiction of the court under Article 36(2) of its statute. Currently, states accepting the general compulsory jurisdiction of the court number 73 of the 193 members of the United Nations.⁵³ That is, less than 40 percent of the UN membership, and including only one of the permanent members of the Security Council, the United Kingdom. Moreover, states making declarations to accept the general compulsory jurisdiction of the court under Article 36(2) may also declare certain “carve outs” or exceptions to such compulsory jurisdiction of the court, making its jurisdictional mandate sometimes look like a Swiss cheese of obligations.⁵⁴ Such a state of affairs seriously undermines the court’s ability to be a true upholder and enforcer of international law.

With respect to the deficits of the ICJ and the international legal system to function as something akin to a “rule of law” system, Judge Rosalyn Higgins, former president of the ICJ, in addition to noting the curtailment of the court’s ability to adjudicate based on the requirement of state consent and incomplete enforcement mechanisms, also notes that the executive of the United Nations, the Security Council (which is not itself representative of the UN membership as a whole) is not subject to judicial review. Furthermore, there is a lack of clear hierarchy in the application of international law due to the range of modern international courts and tribunals (e.g., without the ICJ or another tribunal clearly serving as a designated apex “Supreme Court”).⁵⁵

Despite these challenges, the ICJ has increasingly been made use of by states, with a noted increase in cases it hears, in particular beginning after the Cold War. At the time of writing, there were 17 cases pending before the Court, and six contentious cases already concluded in 2018. A great range of diverse countries, for example, from Asia, Africa, Latin America, and the Middle East – from all regions of the world – have sought recourse at the court, particularly in recent years. Multiple cases, currently and in past years since the court was established (more than 20 concluded and nine pending), concern territorial and boundary delimitation issues, which, as noted, are, historically, an empirically determined prime cause of interstate war.

Moreover, current cases pending on the ICJ’s docket testify to the court being sought as an arbiter within complex or potentially volatile geopolitical conflicts which may pose a risk to regional or international security, and which have proven in whole or in part immune to diplomatic negotiation or solution. Such cases currently include, for example: Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates); Alleged violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America); Relocation of the United States Embassy to Jerusalem (Palestine v. United States of America). The Marshall Islands, in a series of applications to the ICJ concluded in 2016, on “Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament,” sought to hold the nuclear weapons states of the United Kingdom, India, and Pakistan to account under their international obligations. While these latter cases were narrowly dismissed on a conclusion that “no legal dispute” was found (not uncontroversially), and did not proceed to an evaluation on the merits of the complaints, it shows the potential of even the smallest states to seek justice in the international arena before the court.

A redrafted Chapter XIV should give the ICJ general, compulsory jurisdiction under a revised UN Charter, with the General Assembly or Executive Council (replacing the current Security Council), in a binding fashion, also enabled to submit particular international disputes directly to the ICJ, if extrajudicial dispute resolution processes such as mediation or conciliation have proven unsuccessful or inappropriate. The jurisdiction of the ICJ over international legal disputes would thus be mandatory for all UN members, overturning the current voluntary approach of the court which requires states’ agreement. The ICJ would henceforth have compulsory jurisdiction over all substantive matters pertaining to the interpretation and/or enforcement of international law, thus covering the matters outlined in Article 36(1) and (2) of the Court’s statute, and other matters deemed appropriate within the revised Charter system (for example, judicial review of executive action), including the interpretation and application of a UN Bill of Rights (see Chapter 11) and a revised Charter itself.

Reforms are also needed of both the statute and procedural rules of the ICJ, in order to make it more modern, fair, and effective.⁵⁶ To protect the Court’s independence and impartiality, the tenure of the 15 ICJ judges could be limited to one 9-year or 12-year term and the practice of appointing judges from the Security Council’s “P5” nations, as well as ad hoc judges from the states party to litigation, would cease.⁵⁷ The judges of the reformed ICJ could be elected through strengthened procedures to ensure impartiality and the highest levels of competence; for example, by the General Assembly from candidate lists provided by the International Law Commission (giving due regard to global/regional distribution), after seeking recommendations from members of the highest courts of justice of member states, associations of international lawyers, and prominent legal academics. Other reforms could enhance the Court’s advisory functions (expanding those bodies able to request an advisory opinion); powers to collect evidence and compel testimony; supervise and oblige compliance with provisional or interim orders and final decisions; grant access to additional interested parties beyond states to intervene, submit amicus briefs or to be granted standing in certain contexts; and generally increase the resources of the Court and support for its judiciary. This would include the capacity to employ additional court-management and legal staff having expertise in the diverse, specialized areas of international law which are more frequently coming before the court. Enforcement of the judgments of the ICJ would also be supported by the Executive Council, in consultation with the General Assembly, through enforcement supervision and dialogue, sanctions or other measures deemed necessary to ensure compliance. As the international court system is enhanced, the hierarchies and interactions of the various international courts and tribunals and main organs of the United Nations (e.g., in relation to judicial review of executive action or international legislation passed) will also have to be thought through and coherently mapped.

One important model to explore (and/or improve upon) in the reform of the ICJ is the supranational Court of Justice of the European Union (CJEU), with its evolved architecture and functions (for example, the ability to issue binding preliminary rulings and the possibility of infringement procedures, among other things). Before the CJEU, not only states, but also organs of the European Union and individuals can be admitted as parties in certain circumstances. Such a wider granting of standing, subject to certain thresholds and criteria, as well as other capacities that the CJEU has acquired over time to be a more genuine interpreter and enforcer of European law, should be considered for a renewed ICJ, given the very crucial issues which are addressed by modern international law (e.g., biodiversity and climate among a range of other crucial issues). Efforts should be made to ensure that the ICJ may systematically activate actual implementation and enforcement of international law at the national level.

The International Criminal Court

Among the most dramatic achievements in the updating and enhancement of the international legal architecture in the post-1945 Charter world was the adoption of the constituting Rome Statute in 1998, and the commencement of operations of the International Criminal Court (ICC) some four years later, with its seat in the Hague, Netherlands. The then UN Secretary General Kofi Annan recognized the Statute of the ICC as a “gift of hope for future generations.”⁵⁸ Certainly, since opening its doors, the Court has, in the public imagination, often become synonymous with a tribunal of last resort for civilian populations around the world seeking redress for ills committed by unchecked powerful actors. The Court receives a regular surfeit of communications from civil society actors and others, complaining of general human rights abuses and other malfeasance outside its remit, and it has been argued, for example, that generalized governmental corruption (see Chapter 18) and a crime of “ecocide” should be added to the types of issues it may prosecute, among other matters. However, under its statute, the ICC currently has a mandate to prosecute individuals for the serious international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression, although, as noted, many have called for a wider mandate that could include other well-established international crimes.⁵⁹ Prosecution of the notorious international crimes currently included in the Rome Statute might be considered to uphold the most basic tenets of an international civilization, with, in particular “war crimes,” forming one of the oldest areas of international law found within the corpus of international humanitarian law (the source of those offenses considered to be “war crimes”), dating from at least the first Geneva Convention of 1864.

Such an “international penal tribunal” was also foreseen in the Genocide Convention of 1948,⁶⁰ adopted in the same year as the Universal Declaration of Human Rights. The modern foundations for the establishment of such a permanent international court are usually traced to the Nuremberg and Tokyo Trials of 1945–1948 in the wake of World War II, which were in turn preceded by unsuccessful attempts to prosecute leading figures responsible for World War I.⁶¹ The idea received a further substantial boost when the Security Council took the unique and unprecedented step of establishing two ad hoc, supranational tribunals in the light of the global moral outrage felt in response to the brutal conflicts and humanitarian massacres witnessed in Rwanda and the former Yugoslavia:⁶² In 1993, the International Criminal Tribunal for the Former Yugoslavia (ICTY), and in 1994, the International Criminal Tribunal for Rwanda (ICTR). Other ad hoc tribunals, specific to certain situations, have followed since (for example, the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Special Tribunal for Lebanon (STL), the Special Panels for Serious Crimes in East Timor (SPSC), the State Court of Bosnia Herzegovina (Court of BiH), the Kosovo Specialist Chambers and Specialist Prosecutor’s Office (KSC), etc.).

Rather than focusing on discrete or regional conflicts in an ad hoc manner, the ICC is designed to be a permanent fixture in the international order, open to all states of the world to join. In order for the ICC to take jurisdiction and prosecute a given case, the territorial and nationality principle applies as a general rule:⁶³ Either the state on whose territory the crime in question has taken place or the state whose nationality the alleged perpetrator possesses must be contracting parties to the Rome Statute.⁶⁴ Furthermore, the ICC will only act if national proceedings in relation to a given case do not take place, based on the principle of “complementarity” which gives a priority to domestic proceedings. Only if national authorities are inactive or otherwise “unable” or “unwilling” to genuinely investigate or prosecute a particular case will the ICC step in. ICC proceedings can be triggered by three mechanisms; (1) upon referrals by states party to the Rome Statute; (2) by the UN Security Council, in which case the Court’s jurisdiction is potentially universal; or (3) on the independent initiative of the Prosecutor, subject to judicial authorization. The range of ICC investigations since the establishment of the court have been triggered by all three of these means, with the UN Security Council referring two situations concerning nonparty states, in Darfur, Sudan,⁶⁵ and Libya, to the ICC.

The ICC has managed, to date, to issue 45 public indictments and to secure eight convictions (including four contempt of court convictions) and two acquittals, while several cases have been terminated (due to death of the suspect, insufficiency of evidence, or a transfer of the case to the national level), with upwards of 15 suspects remaining at large. This latter statistic illustrates, among other things, the difficulty often found in bringing indictees into custody, in particular if they are highly ranked political figures or powerful warlords. Reflecting its universal mandate, the ICC Office of the Prosecutor, at the timer of writing, had “preliminary examinations” open in connection with situations in countries as disparate as Afghanistan, Bangladesh/Myanmar, Colombia, Iraq/UK, Palestine, Nigeria, and The Philippines, among others. It had moved to the investigation phase in 11 additional situations, including in relation to situations in Georgia (South Ossetia), and a range of African nations, the majority of which were self-referrals to the court by the individual states or by the UN Security Council.

The ICC weathered significant active opposition, in particular by the US, in its early years in terms of its potential jurisdiction over nonparty nationals,⁶⁶ as well as more recent campaigns again by the US, and led by some governments affiliated with ICC suspects, such as in Sudan and Kenya, accusing it of neocolonial bias. Recent criticisms have also plagued the court in relation to the length of proceedings, and low numbers of convictions to date; however, these issues are not unknown “growing pains” witnessed in other novel international legal institutions (for example, those confronting the ICTY and ICTR after they first opened their doors; see, e.g., those described by Prosecutor Carla Del Ponte⁶⁷). The court has also faced a range of other exogenous challenges that have negatively affected cases, such as witness tampering, and lack of cooperation by states, leading to noncompliance findings under its statute. However, as Human Rights Watch has recently noted, and, as seen by the list of situations currently being examined – the court is unfortunately needed now more than ever as human rights crises marked by international crimes continue to proliferate;⁶⁸ ways must be found to strengthen the court and make it more effective, so that it can better achieve its far-reaching mandate.

The ICC and its Rome Statute, remarkably, have attracted no less than 122 of the 193 UN member states, located in every region of the world, which have voluntarily accepted the court’s jurisdiction. One of the main and oft-heard criticisms of the court, however, is that it lacks true international universality, with key international or regional powers such as China, India, Iran, Israel, Russia, Turkey, and the US remaining outside of the ICC’s membership.⁶⁹ Moreover, because of veto-wielding at the UN Security Council, other situations that might warrant referral to the ICC can currently be thwarted at the UN (for example, efforts to have the Syria situation referred to the ICC have been vetoed by some permanent members of the Security Council (see Chapter 7). Article 16 of the Rome Statute in fact also empowers the Security Council to seek a suspension of an ICC investigation or prosecution.

Therefore, a revised UN Charter should make acceptance of the jurisdiction of the ICC mandatory for all member states of the UN, with the Executive Council (with General Assembly authorization) also referring situations to the ICC, as necessary and without the threat of the use of a veto power.⁷⁰ The revised Charter should universally and explicitly oblige member states to fully cooperate with ICC investigations, assist in the execution of its arrest warrants and comply with its decisions, with clear mechanisms for UN remedies and sanctions in response to ICC findings of noncompliance. Outside of UN Charter review and incorporation of the Court as an integral part of Charter obligations owed by all states within the international community, there is much that could be done in terms of interim measures, whether by the strengthening of the Rome Statute through amendment, or within the current Rome Statute framework. For example, this could include protocols in relation to expected or obliged state cooperation with investigations, apprehension of indictees and enforcement of decisions (e.g., the suggestion by former ICTY Prosecutor Carla del Ponte for a small, independent unit under or in cooperation with the Office of the Prosecutor to quickly apprehend and arrest indictees⁷¹). Adequate and reliable funding, also given the expanded case load of the Court remains also a perennial issue at the Assembly of States Parties.

More generally, in terms of its place in the overall international legal and governance system, the ICC, in the subject matter it covers, charts a transitional pathway toward a rule-based international order where the use of and threat of mass armed force ceases to play a dominant role in the conduct of internal and international affairs. As “great or regional powers” who wish to retain their “military flexibility” (or other nations who are concerned about possible scrutiny in relation to systemic domestic human rights violations; see Chapter 11) have to date avoided commitment to the Rome Statute, yet wider acceptance of the Court would signal a readiness of the international community to hold itself to account for the most basic standards of conduct. It would also likely signal that the international community has made significant steps toward a true collective security regime beyond balance of power politics, genuine progress on systemic disarmament, and the evolution of the Security Council as described in Chapter 7, where no state is to be considered to be “above the law” (see Chapters 7, 8 and 9). It has been noted that India, for example, has expressed its reservations about the role of the UN Security Council (e.g., its investigation/prosecution deferral powers under Article 16), which, from the perspective of that country, is too strong and not representative. Here, the criticism of the ICC may be enmeshed with the well-known criticism of the no longer representative composition of the Security Council.

Institute(s) for International Judicial Training

With strengthened international judicial bodies and mechanisms, there will be a heightened need for a skilled and well-trained international judiciary, to lend legitimacy to and confidence in its genuine impartiality and detachment from national or regional political concerns, and a sound understanding of international norms. Currently, there are persistent challenges at various international tribunals; for instance, international criminal tribunals, in relation to the interaction of various legal traditions and judicial approaches to procedural law, among other issues (e.g., with respect to divergences in civil and common law traditions, to highlight one example). There is a pressing need as well to ensure training that fully imprints upon international judges the nature of their international ethical duties and requirements of independence, and more dialogue, formation and education on court management and the conduct of international proceedings.

We propose the establishment of a modern and well-resourced international judicial training institute, possibly in cooperation with or under the auspices of the Hague Academy of International Law. The Institute could undertake and facilitate important, intensive international, national and regional capacity-building and training activities regarding international law – not only in relation to the functioning of the ICJ and the peaceful settlement of disputes, but also, for example, regarding the responsibility of national courts to conduct effective and genuine national proceedings under the ICC Rome Statute, and concerning international human rights norms, when the latter become subject to binding review. Depending on the domestic system for judicial formation, such an institute could take national nominees (to be confirmed subsequently by an international expert body), upon their completion of national judicial training or appointments. International training of a fixed term could be a prerequisite before sitting on any core international tribunal.

Office of the United Nations Attorney General

Many mature legal systems have established a general office of the Attorney General, at the national level, sometimes overlapping with the cabinet level position of a minister of justice, with oversight and system-wide functions related to the maintenance and improvement of the rule of law system of that jurisdiction. In civil law systems, such a posting or similar function (or parts of functions) might be found in the office of the “public prosecutor general” or “advocate general.”

Clark and Sohn suggested the establishment of a post of UN Attorney General, to support a strengthened United Nations, in particular to help with enforcement of new laws and regulations under the revised Charter that they suggested, including violations of law under the comprehensive disarmament plan that they set forth.⁷² Their centralized posting for Attorney General was to be complemented by a civil police force (which could carry out inspections and investigations), and by regional attorneys general, assisting regional courts in relevant prosecutions with respect to the international norms that they established concerning disarmament, and more broadly.

If the maintenance and integrity of a true international legal system is a key, refreshed and renewed goal of the international community, within a modern, 21st century institutional architecture, the establishment of Attorney General functions and institutional resources could be an important consideration. The (albeit limited) independent prosecutorial functions established already within the ICC, at the macro scale, are an extraordinary step forward in this respect, lighting the way for such offices at the international level, with new institutionalized and independent actors surveying the facts and law for matters in the global public interest, among other functions.

Appointed by the Executive Council and confirmed by the General Assembly, a new office of Attorney General of the UN system could perform functions similar to those provided nationally; for example, to be guardian of the rule of law; to serve as independent legal advisor to executive and legislative bodies on the constitutionality and legality of proposed action or legislation; to advise regarding types of international litigation pursued before various international courts in the global public interest; and to ensure proper administration of justice – including independence of the judiciary – across the international system.

Conclusion

It would be nice to see the international community get “back to basics” with respect to the building up of an appropriate, modern infrastructure for a significantly strengthened international rule of law and the peaceful settlement of international disputes, as mandated by the 1945 Charter, but insufficiently followed through; we are currently both blessed and plagued by institutions that are only half-built. It seems that it would be a highly productive investment to fortify and enhance key international legal institutions and explicit state obligations in this respect, given the enormous potential benefits to be gained by the international community. As a value and as a principle, the international rule of law and the peaceful settlement of disputes has been widely and repeatedly affirmed at the highest levels of international governance. Since 1945, work of the International Law Commission, case law of the ICJ, proliferation of international treaties, norms established within the frame of other international organizations or emanating from various UN organs, the academic writing on a wide variety of areas by “highly qualified publicists” from various nations, etc., form and provide an extraordinary resource and an important body of work as a basis for the next evolutionary steps to be taken in the international legal system. Moreover, today there are viable models seen in the European Union and elsewhere that can significantly assist in charting the way forward.

As the second decade of the 21st century draws to a close, we seem to be living in a time where – to draw upon Francis Fukuyama’s pronouncement – history appears to be restarting, with deeply uncertain and shifting global power configurations and doubt as to whether the so-named “liberal international order” established after World War II will survive. Middle power democracies have begun to band together and are being encouraged to take a global leadership role, in the interests of a stable, rule-based international order.⁷³ German Foreign Minister Heiko Maas, for example, recently proposed to a Japanese audience in Tokyo, “If we pool our strengths … we can become something like ‘rule shapers,’ who design and drive an international order that the world urgently needs.”⁷⁴ Basic to any rule-based order are effective, systematic mechanisms for the implementation and enforcement of rules, with properly endowed, legitimate institutions to interpret and uphold those rules; strengthening key institutions for peaceful dispute settlement and to further the international rule of law should be central to the agenda of all those interested in a sustained international peace.

11 Human Rights for the Twenty-first Century

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations

Universal Declaration of Human Rights (UDHR)

If there is one key to the entire question of war, it is justice. A fair world would be a far less conflicted one. Inequality and injustice are ripe causes of social unrest within a society; they have analogues in the international sphere which are heady prompts for conflict.¹

A.C. Grayling

Human Rights and Global Governance

Set against the backdrop of the shocking and widespread atrocities committed during World War II, those negotiating the Charter in San Francisco settled on the inclusion of the language of “fundamental human rights” and “human rights and fundamental freedoms,” interwoven into important provisions throughout the document.² This included mandates for the UN General Assembly and the Economic and Social Council (ECOSOC) to pursue studies and to conduct broader work on the theme. And, importantly, echoing the quotes at the beginning of this chapter, the new Charter intimately linked the promotion of universal respect for human rights to the “creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations,” and placed them under one of the several core “Purposes” of the United Nations: “[t]o achieve international co-operation … in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.”³ ECOSOC was given the responsibility to form “commissions in economic and social fields and for the promotion of human rights.”⁴ It promptly convened a Commission on Human Rights in 1946, chaired by Eleanor Roosevelt, which pursued the successful work on the 1948 Universal Declaration on Human Rights (UDHR), laying strong foundations for the modern international human rights landscape we know today. John Foster Dulles, US Secretary of State in the 1950s, who had been engaged in Charter negotiations, called the Human Rights Commission the “soul” of the Charter.⁵

The Charter itself could be considered to be, among many other things, a watershed international human rights treaty, establishing clear and universal commitments for all states that choose to ratify the instrument – which today includes virtually every nation in the world.⁶ This should be heartening to realize, as it serves as a basis for substantial further work that is badly needed to strengthen the current international human rights system. The Charter’s preamble, moreover, “reaffirm[s] faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women” (emphasis added), seemingly embracing a natural law or preexisting inherent basis for the rights to which it refers, as did prominent precursor national constitutional documents, such as the French and American declarations of the late eighteenth century. On the international plane, the 1919 League of Nations Covenant only included references to several specific human rights concerns, such as labor conditions, treatment of minorities (“native inhabitants”) and traffic in women and children.⁷

Regardless of how one might label the moment of Charter adoption along a trajectory of the international human rights “project,” it is clear from its text that the promotion of and respect for fundamental human rights, due to the frequency with which it is mentioned, is a central “system characteristic” of the new international order established out of the debris of World War II. Very importantly, according to the Charter’s own plain wording, such respect was considered necessary to assure a sustainable international peace. From our vantage point, it would be hard to argue that respect for universal human rights would not continue to be a fundamental system characteristic of an updated, modern international order, as was already clear in 1945. The difference today, however, is that we would expect significantly greater intensification, sophistication and progression of these commitments by the international community. Contemporary notions of “good governance” also commonly include indices of accountability, respect for human rights and rule of law, among other things (see Chapter 20 for discussion on this theme).⁸ Integrating the notion of human rights into a modality of good governance also implicitly answers the question “for whom” the governance is meant – indicating a governance system that is sincerely meant to promote the interests of and protect the generality of the population. We indeed argue in this book that the international community should strive toward such a goal of competent and values-based global governance, aiming to deliver a level of governance excellence, rather than acquiescing to the lowest common dominator and/or significantly flawed international institutions, which has too often been the case.

It is also difficult to envision a significantly strengthened UN and global governance system without also establishing in parallel a much strengthened international human rights architecture beyond what exists today. As with tackling the issue of corruption at the international level in a meaningful way (see Chapter 18), a shift to more widespread and regularized respect for fundamental human rights at the international level goes to the heart of governance functions across a wide range of issue areas, and speaks to a crucial dimension of the quality of governance itself, at all levels. It would seem necessary to put the range of enhanced international cooperation mechanisms suggested in this book, such as a true collective security facility (e.g., an International Peace Force), enhanced international legislative capacity, the updating of the Security Council to an Executive Council, etc., into the context of much firmer observance of and commitment to international human rights standards, so that these institutions and mechanisms would be subject to and function within an environment marked by shared international goals and values (see Chapter 20). If the international community is to draw substantially closer together in unprecedented collaboration at the global level, it will have to reaffirm a still greater commitment to the fundamental shared values embedded in core human rights, building a much more effective supporting international architecture for this goal. The current system within the UN for the implementation and “enforcement” of human rights commitments is still largely “political and diplomatic rather than judicial,”⁹ much to its detriment. This deficiency is no longer tenable and should be remedied. We discuss the pathways for such fundamental strengthening later in this chapter, after dealing with some broader background issues relevant to international human rights policy.

Cascading Effects: The Importance of Human Rights for One and All

As with the issue of corruption, spillover effects across borders are seen when there is widespread disrespect for fundamental human rights in another nation.¹⁰ This is made clear in the Charter and the UDHR, with the link expressed between respect for human rights and conditions of international stability and peaceful relations among nations, with the “resort to rebellion” referenced in the UDHR when rights are not protected by rule of law. If we look at the individual rights enshrined in the “International Bill of Human Rights” (commonly understood to include the UDHR, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR)), it can readily be seen how – in addition to embodying a basic social contract notion of “good governance” between leadership and the general population of a given country – there are a range of obvious (and by now well-documented) cascade effects resulting from the respect of fundamental human rights. Respect for rights helps to ensure wider governance integrity and broader social benefits across a given national system, and increasingly also across the international system, due to the extreme forms of interdependence brought by globalization.

To take just a few examples, the right to freedom of opinion and expression (as enshrined in Article 19 of the ICCPR), bearing on journalistic and civil society freedom and safety, is crucially important to protect against government and private sector corruption and abuses of power, to uphold the rule of law and to assist in ensuring the accountability of public leaders to governance quality standards, among other things. With current levels of transnational commercial and business activity, for example in the multinational enterprise (MNE) sector, populations (and regulators) need to stay informed about the nature of business activity abroad, including in relation to any connections with human rights abuses or corrupt government actors (for example, relevant to standards set by the OECD Guidelines for MNEs).¹¹ Reliable and thorough information provided by a robust civil space and critical press across the world is crucial to set local and international governance priorities, to ensure responsible business operations and to hold to account powerful actors who may be undermining the public good, at the national and international levels.

Internationally enshrined standards of gender equality, which have been called “a cardinal principle of the human rights ideology,” are “essential for authentic democracy, for political development, for economic development, for population control, and for the preservation of the human environment.”¹² Indeed, the World Bank has affirmed that women’s empowerment is a key to unlocking economic growth potential, and there is a clear link between the education of girls and access to family planning in addressing climate change, among other issues.¹³ On the peace and security front, women’s personal security at the national level has been found to be correlated with international security: “[n]ew research … suggests that intimate partner violence may be a predictor of other forms of mass violence, conflict, and state insecurity.”¹⁴ There are also security implications of distorted sex ratios in China, for instance, linked to sex-selection abortion.¹⁵ The protection of very fundamental human rights, as enshrined in existing international human rights instruments, is crucial for solving many of the global crises we confront today.

Recent events and scholarship have shown that serious systemic social problems and large-scale instability have been correlated with the lack of certain human rights protections – making the Charter and the UDHR, indeed, seem prescient. It has been widely observed that the aspirations of citizens for greater general freedoms, economic opportunity and respect for human rights led to the 2011 “Arab Spring” and brought serious and at times bloody instability to many countries.¹⁶ Restrictions on religious freedom have been correlated with greater social instability.¹⁷ The absence of quality education and meaningful economic opportunities can be linked to the erosion or malfunction of democratic forms of government, and the rise of forms of extremism or terrorism.¹⁸ Extremes in economic inequality, linked also to lack of an adequate social safety net, basic social services and adequate employment, lead to an underperforming economy generally, in addition to other societally deleterious effects (see also the discussion on economic inequality in Chapter 14).¹⁹ The absence of sufficient social security, accessible quality education and health care blocks upward mobility, opportunity and entrepreneurial creativity within a society.²⁰

Given such correlations and connections, human rights should, as much as possible, be depoliticized and viewed instead through the lens of social stability, building capacities for rule-based governance, and forward planning for sustainable social and economic well-being, across diverse societies.

That this process of depoliticization has already been occurring in the international governance sphere is evidenced by the Sustainable Development Goals (SDGs) and the UN 2030 Agenda, which were adopted unanimously by governments worldwide. The range of goals and targets are linked with broad policy/governance aims, with various human rights strongly embedded in the goals and targets. To name just a few examples, Goal 4, “Ensure inclusive and equitable quality education and promote lifelong learning opportunities for all,” is a contemporary iteration of ICESCR Article 13. Goal 5, “Achieve gender equality and empower all women and girls,” of course supports a basic principle affirmed in the Charter, the UDHR, the ICCPR, the ICESCR and CEDAW (Convention on the Elimination of all Forms of Discrimination Against Women, among other instruments. Goal 16, “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels,” contains targets related to the combatting of human trafficking, violence and abuse of children, among a range of other concerns, reflecting a number of priority issues in the modern international human rights arena.

The SDGs, indeed, reflect a broader trend in UN policy thinking, where the well-being of the human person is becoming more clearly the focal point and prime beneficiary of governance efforts. A pivotal moment in this evolution occurred when a United Nations Development Program (UNDP) report introduced into the official international discourse the new concept of “human security,” calling for an urgent paradigm shift in the meaning of security away from: “an exclusive stress on territorial security to a much greater stress on people’s security,” and “[f]rom security through armaments to security through sustainable human development.”²¹ Pakistani economist Mahbub ul Haq, who has been credited with introducing the concept, noted that “[w]e need to fashion a new concept of human security that is reflected in the lives of our people, not the weapons of our country.”²² The theme of human security was further advanced at the UN under Secretary-General Kofi Annan and his successors, and has been taken up by, among many others, civil society advocates and Nobel Peace Prize laureates such as Jody Williams.²³

Indeed, beyond the traditional – and highly distracting – struggles for power among jealous sovereigns, these developments can help us start to understand what it now means “to live in a postimperial global society” and how we may find “common cause with the human beings with whom we share this fragile planet.”²⁴ Notions of human security and, more generally, the placing of a human rights agenda at the forefront, across a range of governance concerns, again, answers the question, “for whom is (global) governance”? Human rights norms, alongside norms of constitutionalism, transparency, fairness and the rule of law (including for the meaningful protection of human rights), may be a key to understanding and designing a viable “post-imperial” world.

Cultivating a Global Civic Ethic and the Moral Case for Significant Human Rights Reform

The 1995 Commission on Global Governance called for “the broad acceptance of a global civic ethic to guide action within the global neighbourhood” and “courageous leadership infused with that ethic at all levels of society.” The Commission added that “without a global ethic, the frictions and tensions of living in the global neighbourhood will multiply; without leadership, even the best-designed institutions and strategies will fail.”²⁵

Indeed, in tandem with an awareness of the more abstract governmental/governance benefits – at the national, regional and international levels – of a stronger, more functional and impartial international human rights system, there is a need for an ethical commitment at the level of culture. This is necessary to build the social momentum toward intuitive and second-nature responses – across all facets of global society, including but not limited to governments – that put the respect for human rights as a core concern and felt obligation, across our varied societies.²⁶

Eleanor Roosevelt herself famously commented on the extent of the permeation of values throughout a given society that would be necessary in order to truly realize the goals of the UDHR:

Where, after all, do universal human rights begin? In small places, close to home—so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.²⁷

Such a vision does not simply leave the issue of application and implementation of human rights in the hands of government officials or judges, but re-grounds the “international human rights project” also in the intentions and actions of all people, regardless of what role we play in society.²⁸ The UDHR, in fact, under its provisions on education, affirms the necessity of general education, in all nations, in furtherance of respect for human rights, as well as of the key international values enshrined in the Charter:

Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance, and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. (Article 26(2))

Clearly, there has been little systematic follow-through by various governments on this UDHR obligation, which in fact, one can affirm with reasonable confidence, has been greatly overlooked in the designing of national curricula since 1948. The importance of such basic education on human rights should not be disregarded and should form part of all future efforts to secure a more viable international order (see Chapter 19, Education for Transformation).

Regardless of the gap in general public and professional education on human rights, the modern proliferation of civil society groups around the world speaks to the internalization of the international human rights mandate as a lived ethic of many people – and as a necessary instrument of survival for various communities. It is a validation of the universality, soundness and importance of international human rights norms, felt by citizens across the world at the grassroots level. For example, the number of nongovernmental organizations (NGOs) globally with ECOSOC consultative status (only ECOSOC-accredited NGOs can in turn apply to participate in the UN Human Rights Council’s sessions as Observers) currently stands at 5,163 across all fields, with 24,000 entries included in a wider global civil society database sponsored by the UN Department of Economic and Social Affairs (DESA); a simple search on an independent NGO aggregator/volunteer connection search engine puts the number of civil society organizations dealing with human rights topics around the world at 3,508, which undoubtedly is an incomplete number.²⁹

But beyond pockets of activists and dedicated professionals working in the human rights advocacy field in various countries, there may be a question of why other citizens and professionals should care about the international human rights project, in particular when one may have a relative place of privilege in a jurisdiction with established protections for various rights. Why should relatively privileged actors (including, e.g., businesses) care about something as abstract as improving the international institutional architecture for the protection of human rights? Why now, in a seemingly cynical world where the aspirations of the Charter or the UDHR may seem quaint in comparison with contemporary economic and technocratic globalized pursuits that have largely made amoral bargains or engaged in various trade-offs on human rights issues for balance of power, geopolitical stability or trade concerns?

There are the ethical imperatives that arise from simply knowing about the various types of human rights abuses that are occurring around the world. We are an information- and media-rich international society, with by now well-developed human rights reporting and monitoring mechanisms, both (inter)governmental and private; for example, well-supported international organizations such as Human Rights Watch and Amnesty International (both created post-1945), which have unprecedented reporting and citizen engagement capacity. At the time of writing, we need only look at the daily news to see the range of dramatic and ongoing human rights crises around the world, across regions, including in Yemen, Myanmar, Syria and Venezuela, to name a few. Moreover, recent reports by the UN Special Rapporteur on extreme poverty and human rights in relation to the United States and the United Kingdom, underlining the gravity of these issues for both countries, have highlighted the relevance of UN human rights oversight to every country, even those with the greatest wealth and well-developed legal systems. As Michael Ignatieff has commented, “[i]n a globalized world, we do not have the luxury of moral closure.”³⁰ We cannot say in the contemporary, almost instantaneous, information environment that “we did not know.” Against this informational backdrop, there are new opportunities to assert collective and community values at the international level, to lift our standards and build credible new institutions.

As an international community we currently run serious moral risks, as well as very basic coherence and consistency risks, if we leave the international human rights system as it is, continuing, in practice, to largely take at face value the national and international statements of governments who officially claim to support human rights values. The international community to date has implemented a very strong system of financial and economic globalization, but has yet to move further toward what Richard Falk has labeled a “just new constitutionalism” or a “humane global governance” where international human rights, democratic and rule of law values are effectively implemented and upheld.³¹ Neutrality in the face of the current system can reasonably be seen as a form of appeasement, and support for staying at the current weak level of international oversight and implementation of human rights may be considered a form of mere “therapeutic governance.”³² Amartya Sen notes that because we do not have an organization with the responsibility to actually deliver to people the noble principles of the UDHR, human rights as currently practiced are merely “heart-warming sentiments.”³³ Exerting continued pressure, working hard to secure adequate funding and advocating systematically for more rational, technically sound, impartial international implementation mechanisms within the human rights architecture seems a small price to pay for those in a position to undertake such advocacy.

In addition to basic ethical imperatives, there are also arguments for significantly strengthening the international human rights infrastructure based on enlightened self-interest of all states and populations. Our collective inaction at least tacitly condones harm to others and facilitates various types of harm that will inevitably come to all nations. As noted, the cross-border and cascade effects of systemic human rights abuses are very real, no matter where they may take place.

One dramatic example is the current “Refugee Crisis” in Europe (so-named by institutions of the European Union)³⁴ and the more general global displacement crisis, where in recent years more than 65 million people have been forcibly displaced from their homes – more people than in any period since World War II. The 1951 Refugee Convention, currently with 146 parties, indeed anticipates an uneven landscape in upholding human rights across the world, defining a refugee as:

A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.³⁵

Leaving aside the general social and economic benefits that can flow from cross-border migration (e.g., benefits for economies with an aging population, the relaxation of labor market constraints, reductions in the cost of living; for a fuller discussion see Chapters 14 and 17), there are challenges – real and perceived – to welcoming and caring for such volumes of displaced persons who are looking for refuge under the 1951 Convention, or searching for fundamental economic and social well-being.³⁶ There is also the deep suffering of those forced to flee their home countries because of war, persecution, or economic hardship. Given the sheer volume of persons currently displaced for a variety of reasons (which will only grow in the foreseeable future given the effects of climate change), the diverse countries welcoming refugees should have a very strong interest in ensuring better human rights protections abroad, including with respect to social and economic rights, both in the direct interest of displaced persons, and also in the national interest if domestic resources are being overstretched. Various nations are having to deal with the governance weaknesses and insufficiencies of foreign states in the protection of human rights, and governments – often those with more functional systems – must often absorb challenges and costs related to these problems. It would seem logical that there would be a dramatic collective interest in ensuring much stronger global compliance with international human rights norms, certainly investing in international mechanisms that should be significantly advanced since 1951, with the intention of “working the 1951 Convention out of a job.”

There are other striking examples that are touching the lives and affecting the basic stability – social, economic and otherwise – of citizens in nations where it was thought that standards of human rights and constitutional democracy were well established. Current cross-border meddling through social media and cyberattacks, for example, in the elections of democratic nations, a sort of cross-border infection of autocratic or democratically weak foreign systems where human rights abuses may be widespread, may pose an existential threat to those countries in which citizens have secured hard-won human rights protections over centuries. It is now clearer than ever that the protection of the rights of all, at the international level, is a safeguard, an insurance policy, for the well-being of all.

In such a landscape, moral closure is indeed a luxury. The various predicaments in which we currently find ourselves invite the “analysis of virtues at work in an unjust, dangerous, and uncertain world, a study of how people reproduce virtue – and moral order – in arduous circumstances”;³⁷ our shared human rights values, affirmed widely and repeatedly at the international level, serve as a solid foundation for the international moral order in dangerous and uncertain times. As one author notes: “[e]specially today, when an imbalance of power prevails, strong international human rights institutions are needed,” and “only the states that are disciplined to follow international human rights precepts will have the moral authority to lead.”³⁸

On the Universality of Human Rights

No doubt repressive, illegitimate regimes will continue to invoke cultural relativism and state “sovereignty” to support their resistance to effective human rights enforcement. Overcoming that resistance is a standing item on the human rights agenda at the turn of the century and beyond.³⁹

– Louis Henkin

A range of authors have very capably refuted the assertion that international human rights norms are an imposition of Western morality or philosophy. For example, the debate initiated in the 1990s by several governments asserting that international human rights norms contradict “Asian values” and are a Eurocentric imposition has been prominently tackled by Amartya Sen.⁴⁰ As Sen and others have noted, types of authoritarianism are not “especially Asian in any significant sense,” and while the West may have “skeletons in its cupboards” and may be no stranger to hypocrisy on the topic of human rights (like other regions), this is not an excuse to compromise the rights of Asians. The case for rights, according to Sen, “turns ultimately on their basic importance and on their instrumental role,” in Asia and elsewhere.⁴¹ He also notes the various strands of philosophical thought in Asian social and intellectual history that assert the values of tolerance and respect for individual freedom; the grand dichotomy between Western civilization and “Asian values,” “African cultures,” etc., is a false one, Sen asserts, and moreover is unhelpful and distracting to an understanding of the actual cultural and historical complexity of our global society.⁴²

Indeed, Chinese academic and Vice-Chair of the Human Rights Commission Peng Chun Chang played an influential role in the drafting of the UDHR. Along with other diverse members of the Commission (e.g., notably, from Lebanon, the Philippines and Chile), he very consciously wished to make the Universal Declaration relevant to all of humanity across philosophical traditions. Chang, for example, regularly drew on the thought of Confucius and Mencius in formulating his contributions and was reportedly helpful in finding compromise language across traditions at particularly difficult points in the discussions.⁴³ Charles Habib Malik from Lebanon likewise drew from his Greek Orthodox Christian background in his advocacy for and contributions to the development of the UDHR. Another expert from the Middle East, M. Cherif Bassiouni, has more recently deployed Islamic teachings for the development of clear international norms and binding accountability regimes for egregious international crimes such as genocide and crimes against humanity, in service of the development of modern international criminal law – affirming that Shari’a and Islamic law are not incompatible with contemporary international human rights law and international humanitarian law norms.⁴⁴

Also in more recent times, philosophical concepts from diverse cultural traditions have achieved prominence in important national developments and beyond, also gaining international currency. For example, the moral philosophy of “Ubuntu,” as interpreted by former Archbishop Desmond Tutu, was closely associated with the South African Truth and Reconciliation Commission (TRC). After having chaired the TRC, Tutu described Ubuntu in the following words: “It is not ‘I think therefore I am.’ It says rather: ‘I am human because I belong.’ I participate, I share.”⁴⁵ The concept of Ubuntu, as employed by Tutu, speaks to Roosevelt’s conviction that human rights form a part of concrete community commitments and processes.

Subsequent to the 2015 Paris Agreement addressing the existential planetary threat of climate change, the application of local and traditional techniques of community-building and decision-making have resulted in the Talanoa Dialogue, which blends substantive and “process/procedural” values (e.g., norms of participation and communication). The Dialogue is described as follows:

Talanoa is a traditional word used in Fiji and across the Pacific to reflect a process of inclusive, participatory and transparent dialogue. The purpose of Talanoa is to share stories, build empathy and to make wise decisions for the collective good. The process of Talanoa involves the sharing of ideas, skills and experience through storytelling.

During the process, participants build trust and advance knowledge through empathy and understanding. Blaming others and making critical observations are inconsistent with building mutual trust and respect, and therefore inconsistent with the Talanoa concept. Talanoa fosters stability and inclusiveness in dialogue, by creating a safe space that embraces mutual respect for a platform for decision making for a greater good.⁴⁶

Among the world’s major religious traditions, multiple interfaith declarations and statements, involving leaders of the various traditions, have affirmed the shared ethical core of all religions. An interfaith declaration entitled “Towards a Global Ethic,” drafted at the 1993 Parliament of the World’s Religions in Chicago by an assembly of religious and spiritual leaders from essentially every major world religion and spiritual movement, states:

We affirm that a common set of core values is found in the teachings of the religions, and that these form the basis of a global ethic … There already exist ancient guidelines for human behaviour which are found in the teachings of the religions of the world and which are the condition for a sustainable world order.⁴⁷

These examples show that the diversity of cultural, religious and philosophical traditions need not be a barrier to the application of human rights and can indeed be a source of richness and a supplement to – and, indeed, a strong validation of – what has been agreed in official international documents. Moreover, there are a host of non-religious bases, including a purely legal positivist basis (e.g., international human rights have been agreed at the highest levels of political representation of national governments), as well as those offered by modern philosophers such as John Rawls, with his “original position” doctrine, that provide an ethical or social basis for the universal application of human rights. More generally, the capacity for empathy and the instinct for justice have been found to be indigenous to all of us: psychologists have found the human capacity for empathy and reactions to injustice to be universal. Our shared psychological nature “shape[s] the human response to justice and love – as well as to injustice, cruelty, trauma and violence.”⁴⁸

However, while good faith, principled adaption and cultural contexting of international human rights norms is positive, it must not preclude the clear delineation of “red lines” as to what should be considered, for example, as “harmful traditional practices” across various cultures.⁴⁹ For instance, practices such as female genital mutilation, son preference and female infanticide, early and forced marriage and so on have been found by international expert groups to violate international human rights, as they are harmful and undermine the dignity and well-being of certain group members, and should be stopped. Such principled and good faith dialogues are a part of group learning across every society, as we evolve cultures that better enable humans to flourish.

International actors, including the media, also need to become more knowledgeable about the seeds of doubt and confusion that may be sown by those threatened by the assertion of new systems that seek to protect human rights and vulnerable persons, as has been seen, for example, with the International Criminal Court and the public relations campaigns related to some of the indictees (see Chapter 10). There should be a more sophisticated diagnosis of the “cultural” argument and the concerns raised about imperialism. For example, an analysis as to whether such arguments: a) are a distraction or deflection from accountability, deployed by a certain group or individual within a society that benefits from not having a right or rights upheld; or b) indeed do raise an issue of genuine cultural tension or a relevant historical (or current) experience of imperialism or the imposition of double-standards that should be addressed;⁵⁰ or c) manifest a combination of both of these forces.

Beyond sensitivity to and genuine incorporation of cultural and civilizational diversity – which, as Sen notes, is simply a reality of our international society – Henkin has delivered a scathing rebuke to cultural relativist arguments:

“Cultural relativism” will doubtless continue to be a battle cry into the next century. That may reflect the fact that, despite a half-century of the human rights movement, governments not yet committed to constitutionalism at home remain reluctant to be monitored and judged, and are particularly sensitive to international embarrassment.

…

The political representatives of all mankind have repeatedly committed themselves to the human rights idea and to its expression in the Universal Declaration of Human Rights. No political or cultural representative has purported to justify slavery, torture, or unfair trial as culturally legitimate. If in some few, isolated respects cultural hangovers run afoul of contemporary international standards – forms of slavery, female genital mutilation, amputation as punishment – the international community has declared them no longer acceptable and has demanded their termination as the price of living in international society in the 20th/21st centuries. That was the lesson the world unanimously taught to successive regimes in the Republic of South Africa when they sought to maintain systemic racial discrimination (apartheid).⁵¹

The “Unfinished Task”

Upon the adoption of the UDHR in 1948, while taking the opportunity to commemorate and embrace the extraordinary achievement of the completion of the Declaration, Eleanor Roosevelt called on the international community to, “at the same time, rededicate ourselves to the unfinished task which lies before us.”⁵² She described this work as including the completion of the international covenant on human rights (the two binding instruments that were ultimately adopted in 1966, forming part of the “International Bill of Human Rights”) and “measures of implementation of human rights” (emphasis added). Unfortunately, such measures for the implementation of international human rights continue to fall far short of what is needed for something approaching a functional global system.

The disjunction between the very wide range of sound and widely accepted human rights norms and their meaningful implementation was described in the following way in the mid-1990s: “[d]espite the divisions of the Cold War, the international system developed fine human rights standards; it has not done well in achieving respect for those standards. All states have committed themselves to respect human rights standards, but they have not been prepared to see them implemented or enforced, to accept communal scrutiny of the condition of human rights in their own countries, to scrutinize others, to establish monitoring bodies, or to welcome and respond to non-governmental monitoring.”⁵³ Henkin goes on to note that this latter deficit in implementation and enforcement is “the major human rights task facing the international system.” We agree with this assessment.

Contemporary critiques continue to echo this basic concern, with commentators calling for the gap between enforcement mechanisms and the existence of substantive rights to be closed,⁵⁴ and critics noting that the current system is based on a belief in something “that no longer exists … that enforcement would always be a matter of state discretion.”⁵⁵ The relative impotence of international society to hold specific states to account that Henkin noted still essentially holds true today: “[i]nternational human rights are rights within national societies and the obligation to respect and ensure rights must fall on every society in the first instance. The international community can only observe, cajole, shame and otherwise induce governments and societies to respect and ensure those rights.”⁵⁶ Observing, cajoling and shaming, although better than no scrutiny, has its limitations as an enforcement technique. It has also been noted that in recent decades a disproportionate amount of international attention has been focused on “mass atrocity crimes” (e.g., genocide, crimes against humanity, war crimes) with too little attention paid to the “continuous atrocities” of all-to-common systemic human rights abuses across societies;⁵⁷ such a diversion of attention “masks the harder questions” of how a stronger, more effective general international human rights system might be effectuated.

It is true that in recent decades greater numbers of states have joined the nine core international human rights treaties (with some correlation noted between becoming party to a given treaty and improvements in human rights standards in a given jurisdiction),⁵⁸ and a range of new individual complaint mechanisms, although optional, have been put in place under the various treaties or their protocols.⁵⁹ But the decisions issued under these individual complaint mechanisms are not binding on governments, and there is not much that the committees can do to ensure compliance, beyond applying their moral authority. Although it is highly praiseworthy that these procedures have been developed, they are piecemeal and still do not represent effective outcomes for the individuals around the world who have had their most fundamental rights violated – nor are they a sufficient deterrent for states to not repeat problematic behaviors.

In a 2012 report, then UN High Commissioner for Human Rights Navi Pillay outlined chronic problems of state engagement with the treaty bodies, noting, for example, that only 16 percent of states parties to human rights treaties were reporting on time, in line with their obligations.⁶⁰ Even more symptomatically, Pillay has observed that “even though human rights is one of the UN’s three pillars, it remains so poorly funded, receiving only around 3% of the overall UN budget.”⁶¹ In a rebuke of the general and long-term neglect by the international community of the whole international human rights system, she has noted that:

by resigning ourselves to the “inevitability” of noncompliance and inadequate resources, the system was left to suffer a long history of benign neglect to the point where, today, it stands on the verge of drowning in its growing workload, even when leaving aside the shocking fact that on average 23 per cent of States parties to one treaty have never engaged in the review procedure of that treaty.⁶²

Zeid Ra’ad Al Hussein, Pillay’s successor and the sixth United Nations High Commissioner for Human Rights (serving 2014–2018), has been even more pointed in his critique of the lack of global progress made on human rights, citing decades of “mediocre leadership,” and noting that:

too many summits and conferences held between states are tortured affairs that lack profundity but are full of jargon and tiresome clichés that are, in a word, meaningless. What is absent is a sincere will to work together, though all will claim—again, under the lights and on camera—that they are wholly committed to doing so … [T]he international community has been too weak … to privilege human lives, human dignity, tolerance—and ultimately, global security—over the price of hydrocarbons and the signing of defence contracts.⁶³

Echoing the warnings and admonitions contained in the UN Charter and the UDHR, Al Hussein calls for new thinking on human rights, marked by a sense of urgency, linking deteriorating human rights situations with fractures in various societies that set up dangerous “trip wires” for greater conflicts in the international system:

A fracture within society is often shorthand for human suffering or the existence of burning grievances. Before conflicts begin, suffering stems from three types of human rights violations. One is the denial of fundamental freedoms, such as of opinion, expression and peaceful assembly, creating a situation where life and fear of the state become inseparable. A second is the deprivation of basic services, such as legal and social protections or rights to education and healthcare, which often only confirms the hold of political elites over others. And third, feeding the first two, discrimination, structural and deep, propped up by racism, chauvinism and bigotry.⁶⁴

Again, it seems artificial and naïve to think that thwarted human rights aspirations abroad would somehow not have cross-border and unpredictable global knock-on effects.

Reform Proposals: Strengthening Existing Mechanisms

As an integral part of establishing strong cultures that instinctively further human rights norms, and various forms of human rights leadership across sectors, strong national and international institutions are an imperative, as “good institutions, when supported by citizens of virtue, can stop the elites’ downward spiral into predatory self-dealing.”⁶⁵ International institutions that are strong, aspiring to standards of legitimacy, transparency and excellence, should be a clear aim in the contemporary international order; aspirations should rise far above Pillay’s warning of resignation to a seeming inevitability of scarce resources and noncompliance. That institutions are worth investing in fits with the “institutional turn” in current development economics:⁶⁶ robust, inclusive, modern and rules-based institutions, including at the international level, create the conditions necessary for social and economic prosperity.⁶⁷

Within the UN system, there have been progressive waves of limited reforms to the international human rights architecture, notably in 1993, with the creation of the Office of the High Commissioner for Human Rights (OHCHR), and in 2006, with the transition from the Commission on Human Rights (CHR), overseen by ECOSOC, to the Human Rights Council (HRC), elected by the General Assembly. However, the HRC is still plagued by a range of issues that previously beset the CHR, namely, but not limited to, issues of legitimacy, independence, impartiality and election of Council members.⁶⁸ Despite the transition toward the regularized “Universal Periodic Review” (UPR) system (the periodic review of the human rights records of all UN member states, also established in 2006), and efforts to ensure greater system coherence, the challenges and inefficiencies in the current institutional arrangements and capacities are many and are well documented. These include, for example: lack of implementation mechanisms; noncompliance of states with decisions regarding individual complaints; failure of states to fulfil reporting duties (on time, if at all); inadequate resources and chronic under-resourcing; backlogs of reports and communications and overloading of the treaty bodies; the system’s reliance on unpaid experts and on experts who may not have sufficient background to make quasi-judicial determinations on compliance; inadequate attention given to the independence of some human rights experts; insufficient support for and from the office of the UN High Commissioner for Human Rights; and complexity of and intransigent fragmentation within the system.⁶⁹ It has been noted that the current system may be “effective in promoting human rights, but not in protecting them.”⁷⁰ Moreover, on the issue of legitimacy and credibility, it would be progress if the international human rights system could in the first instance aim to have adequate checks and balances on independence of oversight bodies and those comprising them so that headlines such as the following would be a thing of the past: “Same old scam: The UN Human Rights Council’s lousy election.”⁷¹

A range of authors have made worthwhile suggestions to improve the current system, based around the HRC and the existing treaty bodies, which, however, fall short of further key structural changes. These include, for example: strengthening the reporting procedure through improved report preparation and interaction between treaty bodies and states parties/other stakeholders; seeking a binding nature for findings of treaty bodies as well as better follow-up procedures and the strengthening of individual communications; strengthening the role of civil society in operations and procedures; and enhancing the Special Procedures of the HRC, and so on.⁷²

More substantial suggestions for various structural reforms have been proposed by others, in particular “for determining the make-up of a credible HRC.”⁷³ Schwartzberg has suggested, for example, that to ensure efficiency, the number of HRC members should be further reduced from 47 to 36; in addition to seats reserved for representatives of 12 specified regions (reflecting “current global realities”), a substantial number of seats should be filled by a slate of at large members (decoupled from national political pressures) to encourage truly competitive elections of high-quality candidates; to preserve freedom of speech and independence of judgment, HRC members must be guaranteed legal immunity for any acts taken in the performance of their HRC duties (and, if necessary, asylum); membership should have gender balance; and the special status of indigenous peoples should be recognized through the reservation of two HRC seats for their designated representatives. Subedi has likewise made recommendations to reform and “empower” the HRC, suggesting ways to credibly depoliticize the composition of the Council and suggesting the possibility of elevating its status yet further within the current UN Charter system, giving it a range of new powers to refer situations to existing bodies with enforcement powers such as the Security Council and the International Criminal Court.⁷⁴

Suggestions such as these would no doubt significantly improve the credibility, efficacy and legitimacy of the current international human rights system, and should be implemented. Additionally, if we are seeking to craft a genuine international legal system, with a more authentic system of rule by law (for all the reasons set out in Chapter 10), there is the need to move also, in parallel, to court-based international legal mechanisms and judicial oversight of states’ human rights obligations.

Reform Proposals: International Human Rights Tribunal

As has been shown by well-established regional human rights courts – African, Inter-American and European – supranational judicial oversight of national human rights obligations can now be said to be relatively widespread and “popular” at the international level. Regional human rights commissions or committees in Asia and the Middle East/North Africa (e.g., under the auspices of the Association of Southeast Asian Nations (ASEAN) and the League of Arab States) have also been established within the last decade, laying the normative and institutional groundwork for further development and future individual complaint mechanisms and/or judicial oversight in these regions as well.

The existing regional human rights courts – in particular the longer-standing courts in Europe and the Americas – have already demonstrated the capacity of supranational courts to play a strong role in developing the respective regional human rights systems, within the frame of binding regional human rights treaties. The courts have seen progressively increasing caseloads (indeed, showing the strong “demand” side for human rights relief), and a significant role in clarifying the law, contributing to its progressive development. Such jurisprudence is important for any eventual international human rights court, which should be sensitive to regional and cultural diversity and conditions, and more generally to the progressive development and organic evolution of international human rights law within the frame of evolving societies across the world, driven by the facts of specific cases that come before tribunals.

We propose that an International Human Rights Tribunal should be established, and there are indeed a range of particular benefits to be gained through the establishment of a court-based oversight system for states’ human rights obligations.⁷⁵ Prime among the arguments for such oversight is that the normal definition of a “rule of law” system includes the opportunity for the meaningful enforcement of established legal norms; legal norms established at the international level that are considered to be binding should therefore also be enforceable at the international level. There is a risk that the international human rights obligations will not be deemed credible or – indeed – binding, if there is not such a system whereby courts can issue impartial and enforceable decisions, with international oversight of this enforcement. One can certainly see this “risk” realized in the current state of affairs, judging from the human rights reports issued by a range of actors, both within and external to the UN, on various states’ behaviors.⁷⁶

The unique nature of judicial oversight would be another important benefit gained from an additional international layer to the global human rights “system.” The independence and impartiality of judges, if well established and safeguarded,⁷⁷ has the potential to diffuse politicized situations at the national, regional and international levels, without reliance on a “name and shame” system where, for example, individual states may risk rupture of economic or diplomatic relations if they criticize another state’s human rights abuses too vigorously.⁷⁸ Certain situations bearing on human rights violations, which may have implications for international peace and security, can also be objectively assessed, according to neutral principles of law, forming a basis for further collective action or support of the international community and/or allowing national political actors to “save face” by yielding to the decision of an impartial tribunal in a situation that might otherwise be politically sensitive.⁷⁹

More generally, courts should have unique abilities and skills to determine facts and apply the law in human rights cases, devising appropriate remedies for any violations found, and playing a crucial role in leveling the playing field among actors who may have immensely different levels of power. One criticism of the existing international human rights individual complaints mechanisms is in fact the need for greater “judicial” expertise to be deployed in such mechanisms to address individual cases.

Finally, one of the primary complaints about the current international landscape with respect to international human rights norms is the persistent hypocrisy of state actors, and the gap between rhetoric and action, as noted by Commissioner Al Hussein. A clear and effective way for governments to demonstrate actual commitment to international human rights standards would be to subject themselves to international judicial oversight of human rights obligations. This is perhaps one of the strongest arguments for the establishment of international juridical mechanisms. International law has been criticized as perennially vacillating between postures of “apology and utopia,”⁸⁰ with high “utopian” moral ideas espoused by state actors, which serve, however, primarily or often as manipulative facades for what government actors perceive to be “state interest” or power. A commitment to a well-designed and adequately funded international human rights court would be a substantial step toward overcoming this vicious circle and moving to an international order genuinely based on “human security.”

At the international level, the establishment of an international human rights court has been mooted for a number of years, with some proposals being more prominent than others, and none yet gaining significant practical traction. Proposals date from early in the postwar era, with Australia calling for the creation of a stand-alone international human rights court in 1947, and the United Kingdom at the same time making a counter-proposal that the International Court of Justice (ICJ) be mandated to give advisory opinions on human rights; the idea of an International Human Rights Tribunal was subsequently raised in international fora in the later 1960s and in 1993 at the Vienna World Conference on Human Rights.⁸¹

A high-profile proposal was put forth by the Swiss government in 2011 that a permanent, specialized World Court of Human Rights (WCHR) be created, generally based upon, but also improving, the current model of the European Court of Human Rights (ECtHR). Such an independent court would be established by way of treaty and would be “competent to decide in a final and binding manner on complaints of human rights violations committed by state and non-state actors alike and provide adequate reparation to victims.”⁸² This ambitious proposal drew the backing of a high-level “Panel on Human Dignity” that included former UN High Commissioner for Human Rights Mary Robinson; Theodor Meron, who served at the International Criminal Tribunal for the former Yugoslavia as president for multiple terms; independent experts from the UN Human Rights Council; and well-known human rights activists from, among other places, Austria, Brazil, Egypt, Finland, Pakistan, South Africa and Thailand. It also attracted the attention of various international organizations and scholars.

Despite the support for such a court from a broad range of influential actors, the 2011 proposal was seen by some at the time as too ambitious and too expensive. It was criticized, for example, for a number of the novel features suggested in the proposed blueprint of the court,⁸³ and more generally based on concerns about its complexity, the challenges of cultural diversity and the “distraction” from other projects or investments, in particular given an increased unwillingness among states to invest in “large-scale” international human rights initiatives.⁸⁴

The issue of complexity of the international treaty-based human rights system, with potentially overlapping obligations among treaties, is a well-known problem, and exists whether or not an international court is established; rather, the establishment of such a body would provide an important opportunity for the consolidation and clarification of various existing human rights norms and how they may interact.⁸⁵ Similarly, the issue of international cultural and legal diversity – another issue of complexity – as Sen has noted, is intrinsic to the nature of our rich and varied global society, and affects all areas of international law and international cooperation. The allocation of resources is an international policy choice and there is no reason that multiple, ambitious human rights investments cannot be undertaken in parallel. Remarkably, much has been accomplished in the international arena already in relation to human rights, in particular with respect to normative foundations and increased monitoring, despite dramatically meagre resources.

Further dialogue among experts and serious conversations should recommence in earnest as to the optimal design for an international human rights court, fit for modern circumstances and not compromising on impartiality and efficacy. Concerns such as those raised in relation to the 2011 proposal should be taken into account in further discussions as to how a future court should be engineered. Prime among these may be ensuring an independent and well-trained international judiciary, if they are to issue binding decisions (see Chapter 10, which proposes an international judicial institute), and the possible cultivation of staged or incremental implementation pathways for the realization of such an international court, while at the same time substantially increasing investment, at the global level, in human rights capacity-building and technical training for relevant system actors, including in relation to issues of cultural sensitivity and diversity.⁸⁶

It is feasible to design an international human rights system that supports the oft-repeated “universality” of international obligations, while still respecting regional and national diversity, as well as the diversity of legal systems and traditions throughout the world; these issues are not beyond the reach of the potential techniques and approaches of an international judiciary that is properly equipped.⁸⁷ Moreover, mechanisms of “complementarity” or “subsidiarity” with national and regional courts or systems, and possible filtering through existing or enhanced regional human rights mechanisms, should be explored so as to empower national and regional actors as much as possible, while still mapping out relevant hierarchies among courts.⁸⁸

Ways Forward: A New Era for International Human Rights

As Barrett notes, “[w]hen the world succeeds in supplying global public goods, people everywhere benefit. Our international institutions, however, are clumsily suited to this task [as] they lack the coercive powers that every state uses to supply national public goods.”⁸⁹ The delivery of a social and economic environment in which human rights are respected and upheld, as a key international “public good,” has the official backing of virtually all governments in the world. Yet effective and neutral implementation and enforcement powers to meaningfully deliver such a good have yet to be fully built and this represents a fundamental flaw in the global order. Despite the progress made since 1948, including impressive advancements in the realm of norm creation and consolidation,⁹⁰ we still have a highly imperfect system that allows ongoing abuses on a massive scale.

Influential actors are raising the alarm regarding what they see as an urgent crisis in systemic human rights violations in various parts of the world, which may trigger broader (and additional) international conflagrations or system breakdown; meanwhile there are stunningly ambitious recent proposals for robust new international machinery, backed by prominent legal, human rights and other experts. It is clear from a governance and a cogent international policy perspective, for all the reasons sketched above, that we must fundamentally revamp existing institutions and move to a new era of global human rights implementation. If this important work is not carried forward, it is mistaken to think that any of us will remain immune to the effects of a world where systemic human rights abuses are allowed to flourish.

It is clear that it is time to establish an International Human Rights Tribunal, to give credibility to the international system. Membership in such a court should be made a requirement of UN membership under a revised UN Charter, which should set forth an updated human rights vision, the foundations for which were laid in 1945.⁹¹ Regardless of the specificities of various individual proposals for the final design of an International Human Rights Tribunal – the 2011 proposal for an international human rights court, or those of scholars or practitioners such as Subedi, Trechsel and others – these proposals should receive careful scrutiny, comparison and further development or amendment, taking into account the range of implementation pathways that have been followed in the incremental strengthening of regional human rights systems (e.g., with respect to the ECtHR).⁹² More nuanced arguments and engineering of the various proposals and suggested configurations would be helpful, as well as the exploration of phases of development. In parallel, there should be substantial reform of the existing HRC and treaty body mechanisms, which would then be followed by the (staged) establishment of judicial mechanisms for the meaningful oversight of international human rights obligations.

One of the repeated arguments against a strengthened international human rights architecture, including an international court, involves funding concerns. Funding is a systemic issue in relation to a whole range of fundamental international institutional initiatives, and it is an issue for which the international community must find solutions, of which there are many (see Chapter 12). Moreover, well-thought-out consolidation and rationalization in the current human rights “system,” with its overlapping functions and duplication, will also allow for economies at the national and international levels. But generally speaking, international legal institutions, such as those at the national level, require investment, and indeed, they should be properly resourced in order to fulfil their very elemental mandates to produce minimal conditions for a functional society. Human rights are supposed to be a part of fundamental citizen entitlements, and also one of the three main pillars of the UN. As noted by Navi Pillay, human rights are currently accorded a truly paltry proportion of the UN budget – about 3.7 percent, according to recent reporting.⁹³ This budgetary allocation alone is a testament to the neglect of the issue of human rights by the international community on the issue, despite clear and urgent widespread demand for forward movement; human rights are too important and too essential, by definition, to be the subject of such neglect.

The Need for an International Bill of Rights

Finally, with respect to limitations to and safeguards on enhanced UN powers under a potentially revised UN Charter with enhanced institutions (see Chapter 21), people around the world will want to be reassured that basic individual rights will not be violated in the process of the exercise of the UN’s strengthened mandate as an international organization. The accountability of both individual states and of international governance bodies with respect to human rights must be strengthened. Following on the proposals of Clark and Sohn, a new Bill of Rights (annexed to a revised Charter) prescribing limits to UN action should be drafted to include fundamental human rights protections. The list developed by Clark and Sohn, for example, includes: the right to a fair trial for persons accused of violating provisions in the revised Charter or subsequent regulations and laws emanating therefrom; protections against excessive bail, cruel or unusual punishment, and unreasonable searches and seizures; prohibition of the death penalty; protections for freedom of conscience or religion, freedom of speech, the press and expression in various forms; and freedom of association and assembly. More recent models, such as the Charter of Fundamental Rights of the European Union (the provisions of which are primarily addressed to EU institutions and to national authorities when they are implementing EU law), could also be studied and drawn from to ascertain the appropriate modern protections at the international level. Application and interpretation of the Bill of Rights could be the responsibility of a new, specialized chamber of the ICJ.

12 A New United Nations Funding Mechanism

The General Assembly would adopt the annual United Nations budget covering all its activities, and would determine the amounts to be supplied by the taxpayers of each member Nation for that budget. These amounts would be allotted on the basis of each member Nation’s estimated proportion of the estimated gross world product in that year subject to a uniform “per capita deduction” of not less than fifty or more than ninety per cent of the estimated average per capita product of the ten member Nations having the lowest per capita national products, as determined by the Assembly. A further provision would limit the amount to be supplied by the people of any member Nation in any one year to a sum not exceeding two and one half per cent of that nation’s estimated national product.¹

Grenville Clark

This chapter addresses the question of the funding the operations of the United Nations. It reviews the early history of UN funding and the systems that emerged as a result of the constraints that the UN Charter imposed on its members, with specific reference to the responsibilities given to the General Assembly on budgetary issues under the one country–one vote system. We also review the current structure of the UN budget, as regards both sources and uses of funds, based on the most recent data available, for the year 2016. The main focus of the chapter is on various funding mechanisms that have been put forth in the course of the history of the UN and beyond. These include Grenville Clark and Louis Sohn’s proposals contained in World Peace through World Law; an examination of the advantages of the model currently used in the European Union, which itself evolved over time into a system of reliable, independent funding; a discussion of the merits of a Tobin-like tax on financial transactions as a way to fund not only UN operations but also other development needs; and a system that would allocate resources to the UN as a fixed proportion of each member’s gross national income (GNI), without the multiple exemptions and carve-outs that are in place in today’s convoluted system of revenue generation.

Early History

Article 17 of the UN Charter indicates that “the General Assembly shall consider and approve the budget of the Organization. The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly.” The Charter does not provide guidance on the criteria that should be used to ensure fair burden-sharing across its members and, being mainly a statement of principles, it certainly does not comment on whether the UN should have a consolidated budget for all of its activities – as governments tend to have under the International Monetary Fund (IMF) concept of “general government” – or whether it should have several budgets for different areas of work, such as peacekeeping, general administration and so on.

Not surprisingly, what has happened is that a body of practices has evolved over time that has resulted in the emergence of a so-called regular budget which funds the UN Secretariat and its multiple activities, a peace-keeping budget, and a budget that finances the activities of its specialized agencies. These budgets are financed by assessed contributions from members. In addition, there is a separate budget that is funded by voluntary earmarked contributions from some of its wealthier members in support of particular agencies, projects and programs. Article 18 of the Charter states that budgetary issues are one of the “important questions” on which a two-thirds majority of the membership in the General Assembly will be required to make decisions. Article 19 of the Charter envisages the removal of voting rights in the General Assembly for countries which are more than two years in arrears in their contributions, though exceptions can be made when the cause of the arrears is “beyond the control of the Member.” The General Assembly determines and updates from time to time a matrix of compulsory assessments for countries, establishing the share of the assessed budget that will be paid by each member.

The General Assembly has developed various formulas to determine individual member assessments based on the principle of “capacity to pay.” A Committee on Contributions was established in 1946 that put forward a formula weighing “relative national incomes, temporary dislocations of national economies and increases in capacity to pay arising out of the war, availability of foreign exchange and relative per-capita national incomes.”² On the basis of this formula, the United States was assessed a share of 39.89 percent in the early years but, under American pressure and some opposition from countries such as Canada and Great Britain, a ceiling on US contributions was agreed and implemented in several stages;³ by 1974, the US assessed share had fallen to 25 percent and to 22 percent by 2005, where it has remained since. The incorporation of Italy in 1955, Japan in 1956 and, especially, Germany in 1973 greatly facilitated the reductions in the US contribution. Over time the General Assembly opted for a system to determine country contribution shares that many regarded as unduly complicated, using estimates of gross national product (GNP)/GNI per capita, levels of external indebtedness, with discounts given to low-income countries, offset by assessing higher contributions to wealthier members, and floors and ceilings negotiated from time to time on an ad hoc basis. A minimum contribution floor of 0.04 percent of the total budget was set at the outset of the organization’s foundation, when the UN had 51 members. As low-income countries joined the United Nations in the next several decades, this floor was reduced on several occasions and it now stands at 0.001 percent and is paid by countries such as Bhutan, the Central African Republic, Eritrea, the Gambia, Dominica, Lesotho, Liberia, Sierra Leone, Togo and others.

China has recently overtaken Japan as the second-largest contributor at 12.005 percent, and Japan (8.564 percent) and Germany (6.090 percent) are the third- and fourth-largest contributors, respectively.⁴ For many decades the USSR was the second-largest contributor (14.97 percent in 1964) but, with the collapse of the Soviet Union in 1991 and the resulting prolonged economic crisis during much of the 1990s, Russia’s assessed share fell precipitously. By the early 2000s it would have been set at 0.466 percent, including a low-income developing country discount. Finding it perhaps difficult to reconcile this low contribution rate with its great-power status in the Security Council, the Russian authorities actually asked to make a higher contribution, set at 1.1 percent by 2000. It is 2.405 percent today. The top five contributors today account for 53.23 percent of the assessed budget (higher than the 50.85 percent during the 2016–2018 budget cycle), and the top 20 for 83.33 percent, meaning that the other 173 countries account for the remaining 16.67 percent. The five veto-wielding members of the Security Council accounted for 71.09 percent of the budget in 1946, but their share has come down to 45.40 percent in the assessments to be applied in the 2019–2021 term. The General Assembly has operated on the basis of the one country–one vote principle since its inception, which, understandably, has created tensions from time to time given its authority over budgetary matters. Switzerland’s contribution (1.151 percent) exceeds the cumulative contributions of the 120 countries with the smallest assessed shares, a list that begins with the Dominican Republic, Lebanon, Bulgaria, Bahrain, Cyprus, Estonia, Panama, all the way down to Tuvalu and Vanuatu.

Political Tensions from the One Country–One Vote Rule

Since the Charter established a two-thirds General Assembly majority threshold to approve matters pertaining to the budget, and since the voting share of the two-thirds of the membership with the smallest assessed shares adds up to only 1.633 percent (a number only slightly higher than the contribution of Turkey), this created a situation where, de facto, on budgetary matters, the “tail” was often indeed “wagging the dog,” in a big way. The imbalance stemming from the one country–one vote principle – which could have been easily anticipated in 1945 – has led to occasional calls from some of the larger contributors to introduce a system of weighted voting in the General Assembly on budgetary matters. As such proposals have not received the support of the smaller members constituting a solid majority in the Assembly, it has instead contributed to enhancing the de facto leverage of countries such as the United States, its largest contributor. It is outside the scope of this chapter to discuss the difficult relationship the United States has had with the United Nations on budgetary matters over the decades. Jeffrey Laurenti provides an excellent overview in his contribution to the Oxford Handbook on the United Nations.⁵ US contributions have often been in arrears and fallen captive to internal domestic politics, and have resulted in the imposition of multiple demands and conditions over the years that have included, for instance, the introduction of a nominal zero-growth budget over a period of several years – which did much to undermine the effectiveness of various UN programs and initiatives – staff reductions, and the extraction of promises from the United Nations that it would not create a “UN standing army” nor debate, discuss or consider “international taxes.” Since 1987, at the urging of the United States, the budget has been approved “by consensus.”⁶

Budgetary Management

Unpaid contributions have greatly complicated budgetary management at the UN. Countries have built up arrears to the budget in some cases because they do not regard obligations to the UN as legally binding or, in any case, to exceed in importance whatever other claims there may be on their budgets at home, or because, as in the case of the United States and the Soviet Union, they were unhappy with particular policies or practices and wanted to use their contributions as leverage to prompt change. To take an example, in the 1960s the Soviet Union accumulated more than two years of arrears because of dissatisfaction with peacekeeping operations in the Congo. Faced with the possibility of the application of Article 19 and the removal of voting rights, the Soviet authorities threatened to pull out of the United Nations. Such threats were considered credible given that the Soviet Union had already pulled out from membership at the World Bank and the IMF, organizations they would rejoin in 1992 as 15 separate republics, with Russia inheriting the veto in the Security Council. These threats resulted in a compromise that led to the delinking of the peacekeeping budget from the regular budget. One, possibly unintended, effect of this was that, in time, countries tended to see their contributions to the regular budget as being of higher priority than those to peacekeeping operations, which then resulted in the accumulation of large arrears in assessed contributions for peacekeeping; by 2007 more than 85 percent of the latter budget was in arrears.

In the early years, peacekeeping operations were small and funded from the United Nations regular budget. After the Suez Canal crisis in 1956, peacekeeping was funded from a separate budget on the basis of assessed contributions, but under a system than that applied to the regular budget. This reflected in part the very nature of peacekeeping, with needs often arising in an unpredictable fashion, but also the fact that low-income countries often felt that the cost of such operations should be largely borne by the wealthier members. Thus, in 1973, against the background of two Arab–Israeli wars and growing demands for peacekeeping operations, a system was put in place that created several categories of countries depending on the level of income per capita. Category D countries, all low-income and located mainly in sub-Saharan Africa, were granted a 90 percent discount with respect to their assessed contribution rates for the regular budget. Therefore, a country with an assessed rate of 0.015 percent for the regular budget would be expected to pay an additional 0.0015 percent to the peacekeeping budget. Other developing countries were classified as Category C and given an 80 percent discount. Thus, a country with an assessed rate of 0.75 percent would be assessed for an additional 0.15 percent as their contribution to peacekeeping. Category B countries, made up of high-income countries not members of the Security Council, would be expected to pay the same rate as applied to the regular budget (i.e., zero discount), and Category A countries consisting of the P-5 were expected to make up the shortfall.

Although this system was initially adopted on an interim basis for a one-year period, in practice it was renewed annually and remained in place until 2000, when a new compromise was arrived at that increased the number of country groupings to six and sharply reduced the discount applying to Category C countries, from 80 percent to 7.5 percent. In any case, in either system the burden of peacekeeping fell disproportionally on the United States, the United Kingdom and France, given the low assessed contributions of Russia and China which, in the latter case, by 1995 was 0.720 percent. This compromise notwithstanding, the United States imposed, unilaterally, a ceiling of 25 percent on its assessed contribution for peacekeeping. Laurenti sums up convincingly the UN’s main problem in this area: “The refusal by the largest member states to pay assessed contributions whose level or purpose displeases them has become a recurrent feature of funding politics at the UN. The consequent fragility of its financial base is one of the UN’s fundamental weaknesses.”⁷

Table 12.1. Total revenue of the UN system by UN agency and by financing instrument, 2016

US$ millions
Agency	Assessed contribution	Voluntary untied	Voluntary earmarked	Other fees	Total 2016
UN Secretariat	2,549	0	2,063	535	5,147
UN Peacekeeping	8,282	0	392	52	8,726
Specialized agencies	3,142	5,060	24,230	3,028	35,463
Of which:
FAO	487	0	770	39	1,296
WHO	468	113	1,726	57	2,364
IAEA	371	0	252	9	632
UNICEF	0	1,186	3,571	126	4,884
Total	13,973	5,060	26,685	3,615	49,336

Source: Financing the UN Development System: Opening Doors, New York, Dag Hammarskjold Foundation, United Nations MPTF Office, United Nations Development Program (UNDP). September 2018.

Table 12.2. Assessed contributions to the UN system by UN agency, 1975–2016

Organization	1975	1980	1985	1990	1995	2000	2005	2010	2015	2016
UN Secretariat	268	510	618	888	1,135	1,089	1,828	2,167	2,771	2,549
Specialized agencies	401	816	1,071	1,411	1,871	2,048	2,446	3,207	3,247	3,142
Of which:
FAO	54	139	211	278	311	322	377	507	497	487
WHO	119	214	260	307	408	421	429	473	467	468
IAEA	32	81	95	155	203	217	278	392	377	371
UNESCO	89	152	187	182	224	272	305	377	341	323
Total	669	1,326	1,689	2,299	3,006	3,137	4,274	5,374	6,018	5,691

Source: Financing the UN Development System: Opening Doors, New York, Dag Hammarskjold Foundation, United Nations MPTF Office, United Nations Development Program (UNDP). September 2018.

Table 12.3. Voluntary earmarked funding to the UN system by UN agency, 2005–2016

Agency	2005	2010	2013	2014	2015	2016
UN Secretariat	848	1,361	1,440	2,321	2,094	2,063
Specialized agencies	14,325	18,906	22,255	23,957	23,112	24,230
Of which:
WFP	2,963	3,845	4,095	4,943	4,469	5,108
UNDP	3,609	4,311	3,897	3,809	3,726	4,122
WHO	1,117	1,442	1,929	1,970	1,857	1,726
UNICEF	1,921	2,718	3,588	3,843	3,836	3,571
Total	15,196	20,300	23,725	26,423	25,401	26,685

Source: Financing the UN Development System: Opening Doors, New York, Dag Hammarskjold Foundation, United Nations MPTF Office, United Nations Development Program (UNDP). September 2018.

Table 12.4. Total expenditure by UN agency, 2005–2016

Agency	2005	2010	2013	2014	2015	2016
UN Secretariat	2,659	3,953	4,310	5,145	5,613	5,713
UN Peacekeepinga	5,148	7,616	7,273	7,863	8,759	8,876
Specialized agencies	18,340	28,866	30,863	33,360	33,688	34,176
Of which:
FAO	771	1,415	1,380	1,246	1,219	1,202
IAEA	443	585	606	581	570	550
UNICEF	2,191	3,631	4,082	4,540	5,077	5,427
WHO	1,541	2,078	2,261	2,317	2,738	2,471
Total expenditures	20,999	40,435	42,446	46,368	48,060	48,765

^a Figure for 2005 is not available; figure shown corresponds to 2007

Source: Financing the UN Development System: Opening Doors, New York, Dag Hammarskjold Foundation, United Nations MPTF Office, United Nations Development Program (UNDP). September 2018.

Figure 12.1. Total revenue of UN system by financing instrument, 2016.

It is useful to look at the level and the structure of funding of the UN in 2016, the latest year for which a fairly complete data set is available. We will also comment briefly on the evolution over time of some of the main revenue sources. There are several features worth highlighting.

• Assessed contributions to the UN budget in 2016 amounted to US$13,973 million, of which US$8,282 million was for peacekeeping (59.3 percent of the total), with US$2,549 million allocated to the UN Secretariat’s so-called regular budget and US$3,142 million to the specialized agencies. The share of the peacekeeping budget in 1971 was a mere 6.1 percent of the total and had risen to 17.4 percent by 1991. There is some irony in the fact that the amounts allocated to peacekeeping operations rose most rapidly after 1991, with the end of the Cold War, a period that was expected to deliver the so-called peace dividend. It is noteworthy that even at US$8.3 billion in 2016, the peacekeeping budget amounts to about 0.5 percent of total world military spending.

• A total of US$5,691 million was allocated to the UN Secretariat and its 20 specialized agencies. The four largest recipients among these were the Food and Agriculture Organization (FAO), the World Health Organization (WHO), the International Atomic Energy Agency (IAEA) and UNESCO. By 1971 the regular budget accounted for about 40 percent of the assessed budget. This share had fallen to 18.2 percent by 2016.

• The share of the regular budget in the total budget (including voluntary earmarked contributions) has been on a downward trend, reaching 10.4 percent by 2016.

• The share of the assessed budget going to specialized agencies such as WHO, FAO and others fell from 54 percent in 1971 to 22.5 percent by 2016.

• The regular budget has remained small, growing from a very tiny base at the outset of the creation of the UN when the annual budget was less than US$20 million, at an average annual rate of about 2 percent in real terms. On a per capita basis, the regular budget is equivalent to about US$0.38 per year for every person on the planet.

• Of the US$26,685 million in voluntary earmarked contributions made by donors in 2016, US$24,230 was allocated to specialized agencies, with the rest going mainly to the UN Secretariat, with some small amounts allocated to peacekeeping. The largest recipients of earmarked contributions were the World Food Programme (WFP), the United Nations Development Programme (UNDP), WHO and UNICEF.

• Table 12.5 shows data on per capita assessed contributions corresponding to the 2015 budget, which recorded US$14,519 million in revenues. The 15 largest contributors to the UN budget on a per capita basis are Monaco, Liechtenstein, Norway, Switzerland, Luxembourg, Qatar, Denmark, Australia, Sweden, Tuvalu, San Marino, Netherlands, Finland, Austria, and Canada. The five veto-wielding members of the Security Council occupy the following positions: France (22), the United States (26), the United Kingdom (27), Russia (57), and China (93). India is in 147th place. In per capita dollar terms these contributions range from US$23–38 in the case of Monaco, Liechtenstein, and Norway, to US$0.08 in the case of India, to about US$0.01 (one cent or less) in the case of the Democratic Republic of the Congo, Somalia and Bangladesh, the three lowest contributors. The United States’ per capita contribution is US$9.88, while its national per capita defense expenditure for the 2018 fiscal year was US$2,050. That is, defense expenditures are 207 times larger than UN contributions on a per capita basis.⁸

• The EU, which has a GDP that is broadly comparable to that of the United States, contributes 29.3 percent of the assessed budget, compared with 22.0 percent for the United States.

Table 12.5. Per capita contribution of top 15 countries to UN budget^a

Country	Per capita contribution to UN budget, in USD	Rank
Monaco	37.71	1
Liechtenstein	26.98	2
Norway	23.47	3
Switzerland	19.88	4
Luxembourg	16.13	5
Qatar	14.92	6
Denmark	14.86	7
Australia	13.91	8
Sweden	13.89	9
Tuvalu	13.20	10
San Marino	13.07	11
Netherlands	12.63	12
Finland	12.07	13
Austria	11.96	14
Canada	11.71	15
France	10.92	22
United States	9.88	26
United Kingdom	9.87	27
Russian Federation	3.13	57
China	0.83	93
India	0.08	147

^a For assessed contributions (i.e., excluding voluntary contributions) but also includes all permanent members of Security Council and India

Figure 12.2. Total voluntary contributions of top ten countries, US$m, 2015.

Perhaps the most interesting feature of the data is the extent to which, by 2015, total voluntary contributions dwarfed contributions to the regular budget, by a factor of nearly 11, and even exceeded by a significant margin total amounts budgeted to specialized agencies, peacekeeping and the regular budget combined. Voluntary earmarked contributions tend to be lopsided, with four countries – the United States, the United Kingdom, Japan and Germany – accounting for about 42 percent of the total and the European Union accounting for about a third. The General Assembly, which discusses, recommends and approves the assessed part of the budget, has little say on the uses of voluntary contributions, which tend to reflect individual donor country economic, political and developmental priorities. Donor countries have bypassed the General Assembly and use the United Nations infrastructure as a conduit to leverage the impact of their bilateral aid programs. In this way, they may use the UN label, while maintaining for themselves full discretion over how to spend these contributions. Some critics of voluntary funding, including Haji Iqbal,⁹ point out that the UN Charter makes no provisions for such funding; it assumes that all UN expenditures will be based on assessed contributions paid by members and the General Assembly will retain authority over the levels and associated priorities of such funding. Indeed, from this perspective, voluntary contributions can be seen as having a wobbly legal foundation. One could argue that a rigid interpretation of the UN Charter on this point and, in particular, the application of the one country–one vote principle and the lopsided distribution of contributions across members would have long ago starved the UN budget of needed funds.

Faced with the option of boosting contributions to the regular budget in order to match growing needs within a rapidly interdependent community of nations grappling with an expanding list of global challenges, but having little say on the use of such resources within the General Assembly, donor countries opened up a new avenue of funding over which they would have the control that they lacked within the regular budget. Thus, voluntary contributions were a natural response to the fiction that we live in a world in which Dominica, with its 0.001 percent contribution, should have an equal say over the disposition of resources as Japan, with a contribution 8,564 times larger. Nevertheless, one perhaps unintended consequence of the large volume of voluntary contributions with respect to assessed funding is that the majority of United Nations staff do not, in fact, ultimately work for the organization that pays their salaries. Rather, they work for the donor countries that provide the funding for the many programs to which these funds are earmarked. Likewise, while many people may think that the organization is run with a US$49 billion annual budget, the reality is much more modest; assessed contributions to the UN Secretariat budget in 2016 amounted to slightly more than US$2.5 billion.

Proposals for United Nations Funding

This situation has led many to argue that a strengthened UN system, with a broader set of responsibilities and strengthened and expanded institutions would need a reliable source of funding, free of the inconsistencies, opaque practices, arbitrariness and contradictions that have emerged through several decades of practice. It would also need to be delinked entirely from the kinds of domestic political considerations that have sometimes intruded upon budget debates and have held the UN’s activities hostage to the demagoguery or bias of local politicians, the occasional emergence of isolationist tendencies in some member countries and so on. In light of the need for new, coherent solutions to funding a UN adequate for twenty-first century challenges we will put forth four proposals and examine their respective merits and potential problems. We feel strongly that any one of them would be superior to the current non-system.

A Fixed Proportion of GNI

Under this proposal based on work by Schwartzberg,¹⁰ the United Nations would simply assess member contributions at a fixed percent of their respective GNIs. Total world GNI at market prices in 2017 was US$79.8 trillion. A 0.1 percent of GNI contribution to the UN budget would generate US$79.8 billion, a sizable sum to start with. The main advantage of this system is simplicity and transparency. Every country would be assessed at the same rate; the criterion for burden-sharing is crystal clear. Contributions are linked to economic size – as in the current system – but without the need for carve-outs, exceptions, floors and ceilings, discounts and the need to develop “formulas” of questionable integrity and credibility. There is also no need to develop a separate UN tax collection machinery, which has been noted as a potential problem in other proposals put forward in the past to address the problem of UN funding. One potential criticism of this proposal is that the tax rate is not progressive; the same rate applies to all countries, regardless of the level of income. We feel that this feature is not a problem in the same way that flat taxes on personal income can sometimes be. First, there is nothing to prevent the UN from ensuring that most of the benefits of its activities and expenditures are, in any case, allocated to its lower-income members. This is, of course, already happening in the current system, particularly in the case of the spending channeled through its specialized agencies and programs. Therefore, the absence of progressivity in the tax rate assessed on contributions is more than offset by the presence of a large measure of progressivity in the allocation of benefits to lower-income countries.

Second, even at 0.1 percent of GNI the assessed tax rate is low. Countries typically spend an average of 2 percent of GNI on their militaries – 20 times more than their proposed contributions to the UN budget. To the extent that, at 0.1 percent of GNI, the UN would be empowered to do a great deal more in terms of the delivery of enhanced security to its members (see Chapter 8, as strengthening the rule of law and the other measures enhance the members’ security significantly), this new system could make great economic sense, in terms of the benefits it would deliver. At present, there are a large number of countries for which their assessed contributions amount to less than five cents per person per year, amounts that are strikingly low and that have likely contributed to a culture of lack of ownership of the United Nations by many of its members. Furthermore, it would have another important advantage. Instead of empowering segments of public opinion – for instance in the United States, which have generally made much of the fact that their country contributes, say, 22 percent of the UN’s assessed budget – now the narrative would simply shift to observing that all countries are assessed at the same (low) rate, thus ending the argument.

In any proposal for new funding mechanisms for the UN we need to move to a more representative system of weighted voting in the General Assembly, such as already exists at the World Bank and the IMF. It is not reasonable to expect the United States, China, Japan and Germany, the four largest contributors, accounting for 28 percent of the world’s population, to account for 2 percent of votes in the General Assembly (e.g., as four out of 193 members). This imbalance has been a primary factor explaining the emergence of the distortions and inefficient practices and all-around chaos that today characterize UN finances. With the reformed model, at just 0.1 percent of GNI, contributions today would exceed the UN budget, generating resources that could, for example, be put in an escrow account “to enable the United Nations to respond expeditiously to unanticipated peacekeeping emergencies and major natural disasters.”¹¹ Better yet, such excess resources could be invested, as Norway has done so successfully with its Petroleum Stabilization Fund. Moreover, since climate change shocks are expected to affect all members, one can imagine situations in the future where all members may have the right to draw on such resources in an emergency, as is the case, for instance, with many of the IMF’s funding facilities. In the 1970s, even the United Kingdom and Italy gained access to the Fund’s standby arrangements.

Furthermore, with a system of weighted voting in the General Assembly – meaning a more sensible system of incentives for members – one can imagine a gradual return to the vision that was originally laid out in the UN Charter, one in which expenditures would truly be subject to General Assembly oversight and scrutiny and voluntary contributions would not play the disproportionately large role that they play today. A final advantage of this system is that it would reposition the United Nations and, in particular, the Economic and Social Council (ECOSOC), to play a more vital role in questions of economic and social development, as envisaged in the Charter.¹² The existing funding arrangements have done much to sideline the United Nations from vital debates that have taken place in recent decades, for instance, in terms of the response to the global financial crisis in 2008, with other groupings – the G-20 – playing a more prominent role but, obviously, facing legitimacy issues of its own because of the absence of voice for the other 173 members. We will call this the Schwartzberg proposal, in honor of its chief proponent.

The Clark–Sohn Proposal

In World Peace through World Law, Clark and Sohn put forward a proposal of their own that merits examination. Because they envisage a considerably strengthened United Nations and anticipate a General Assembly operating under a system of weighted voting, they propose revisions to Article 17 which, for instance, “would greatly broaden the control of the General Assembly over the activities of all the specialized agencies, not only by requiring that the separate budgets of these agencies be approved by the Assembly, but also by making the general budget of the United Nations the main source of their funds.”¹³ Clark and Sohn’s proposal assumes that each nation would contribute a fixed percentage of its GNP to the United Nations and does not specify what the domestic sources for those revenues would be. These contributions are an obligation of membership and there would be no need for the United Nations to develop a tax collection machinery, beyond that already existing in member countries. They do, however, have very detailed proposals on the distribution of the burden across members, given a particular budget. It is an interesting exercise to see how the burden would change in their proposals, with respect to the assessments in force for the period 2016–2018. We will do this by describing their proposal first and then by updating their calculations using population and GDP figures for 2016.

For each nation’s GNP, Clark and Sohn propose making a so-called per capita deduction that “would be equal to an amount arrived at by multiplying the estimated population of such nation by a sum fixed from time to time by the General Assembly, which sum shall be not less than fifty or more than ninety percent of the estimated average per capita product of the people of the ten member Nations having the lowest per capita national product.”¹⁴ The resulting amount would be the “adjusted national product” and the calculated shares of the budget attributed to each nation would be determined by the ratio between this concept and the sum of all “adjusted national products” for all member nations. They provide a useful illustration using notional GNP and population figures for two countries in 1980 (see pp. 351–352 in World Peace through World Law). We have done these calculations for just over a dozen countries, and Table 12.6 compares the assessments in use by the United Nations during 2016–2018 with those that would emerge from the Clark and Sohn proposal using updated figures.¹⁵

Table 12.6. The Clark–Sohn proposal (in percent)

UN member	Current assessmenta	Adjusted assessment
Bangladesh	0.010	0.248
Brazil	3.823	2.379
China	7.921	14.820
France	4.859	3.350
Germany	6.389	4.729
India	0.737	2.578
Japan	9.680	6.706
Malawi	0.002	0.000052
Nigeria	0.209	0.481
Norway	0.849	0.505
Sweden	0.956	0.695
Russia	3.088	1.699
United Kingdom	4.463	3.572
United States	22.000	25.362
World	100.000	100.000
Memo items:
Average income per capita
for 10 poorest countries (US$)	418.1

^a Current assessments correspond to the 2016–2018 period

As can be seen, the main impact of their method is to substantially raise the assessed contribution of China, to do so marginally for the United States – both of which would now account for 40.2 percent of the budget, compared with 29.9 percent today – reduce the contributions of countries such as Japan, Germany, Norway, Sweden, and the United Kingdom, increase the contributions of countries such as India and Nigeria, and virtually eliminate the contributions of countries with the lowest income per capita. Malawi’s assessed contribution, for instance, would drop from 0.002 percent today, to 0.000052 percent in the Clark–Sohn proposal. The ratio of the contribution rate of the United States to that of Malawi would rise from 11,000 today to 487,731 under their proposal.

We understand the motivation of Clark and Sohn in introducing something like a “low-income discount” for assessed contributions to the United Nations budget. They made these proposals in the late 1950s, when the incidence of extreme poverty was much higher than it is today and when living conditions, more generally, were appalling in much of the developing world. Average life expectancy in 1960 was 52 years, compared with 72 today, and infant mortality was, likewise, extremely high by today’s standards. Indeed, the current financing system already has some of this flavor, with low-income countries contributing considerably less than their indicative GNI share and high-income countries contributing correspondingly more. We favor a system that would impose a more equitable burden across the United Nations membership. There is much to be gained from developing countries seeing that they have a stake in a reformed United Nations and that they are contributing a fair share to an organization that, in any event, will, at least as regards its priorities in the area of economic and social development, be very focused on low-income countries, from support for fragile or post-conflict states, assistance in conflict prevention, various other types of national capacity-building and, more generally, dealing with the challenges of still very high levels of extreme poverty, illiteracy and malnutrition.

The EU Model

Another option is to introduce a funding mechanism similar to that currently operating in the EU, where each country’s payment is divided into three parts: a fixed percentage of GNI, customs duties collected on behalf of the EU (known as “traditional own resources”) and a percentage of VAT income, all of which member states collect and allocate automatically to the EU budget. The EU has not developed a separate revenue collection machinery, with the collection of taxes left as a responsibility of individual states. This system has served the EU extremely well. It has provided a reliable source of funding that is independent of domestic political considerations. Member countries do not get to withhold contributions whenever they disagree with the orientation of particular policies (on which, in any case, they get to vote under a system of proportional voting), or when other domestic priorities emerge. The system provides a level of automaticity in funding that has eliminated discretion at the level of individual member states.

Consequently, the EU is able to frame budgets in a medium-term perspective – it approves a budget at six-year intervals – and can plan accordingly. As regards the tax base, for those countries without VAT (a minority of states), one possibility would be to allocate a share of indirect taxes on goods and services collected in each member country. The percentage of such taxes to be allocated to the UN budget could be pitched to achieve the desired end in terms of the volume of total contributions. For those few countries without well-developed systems of indirect taxation, one could use an alternative tax base, such as a share of taxes on corporate profits, assessed at levels that would achieve proportional burden-sharing across countries. One advantage of this proposal is its automaticity. Having agreed to pass on to the United Nations a share of VAT or indirect taxes, funding would not be subject to members’ whims and discretion. As long as the United Nations was discharging its responsibilities as called for in the Charter and under the general supervision and oversight of the General Assembly, funding would flow regularly, empowering the organization to frame its activities in a medium-term framework, free of the uncertainties and vagaries of the current system.

A Tobin-like Tax

Another possibility is the tax proposed by James Tobin on spot currency transactions or its successor, a tax on financial transactions. Tobin made his initial proposals in the immediate aftermath of the collapse of the Bretton Woods system of fixed exchange rates in 1971, and its primary motivation was less to generate tax revenue and more to dampen the speculation that was contributing to heightened exchange rate volatility in foreign exchange markets, delinked from broader economic fundamentals, and placing a particularly heavy burden on producers and consumers of traded goods. Tobin’s proposals have generated considerable debate, controversy and confusion over the years. It is worthwhile, therefore, to briefly summarize his thinking, particularly as it evolved over the 25 years following his Janeway Lectures at Princeton University in 1972 when the proposal was first made. By the mid-1990s, and against the background of multiple financial crises in various parts of the world, Tobin expressed particular concern about speculative attacks against countries that were undergoing some financial turmoil and were forced to increase interest rates sharply to defend their currencies, with deleterious effects on economic activity and employment.

Since he was skeptical that the world would quickly move to the full coordination of monetary and fiscal policies and the introduction of a common currency, he opted for throwing “some sand in the well-greased wheels” of international money markets.¹⁶ Tobin lamented the exchange rate volatility that had emerged in the wake of the collapse of the fixed exchange rate regime in the early 1970s and noted that “in these markets, as in other markets for financial instruments, speculation on future prices is the dominating preoccupation of the participants … In the absence of any consensus on fundamentals, the markets are dominated—like those for gold, rare paintings, and—yes, often equities—by traders in the game of guessing what other traders are going to think.”¹⁷ While he recognized that financial markets often imposed a degree of discipline on countries’ monetary and fiscal policies, he thought that the punishment delivered by speculation often far exceeded the policy mistakes or misalignments brought about by the authorities, as had been the case in Mexico in 1994, and as would become clear during the 1997 Asian financial crises and other emerging market crises precipitated in its wake.

Tobin’s essential point was to “penalize short-horizon round trips” in foreign currency transactions while not affecting in any significant way the incentives for trade in commodities and longer-term capital investments. He thought that a tax administered with some flexibility would be a better instrument to combat runaway speculation than bureaucratic controls and/or burdensome financial regulations. In his 1996 contribution to The Tobin Tax – Coping with Financial Volatility, he observed that 80 percent of foreign exchange transactions involved round trips of seven days or less, with the majority of these being of one-day duration.¹⁸ By 1995, daily foreign exchange trading amounted to US$1.3 trillion, or US$312 trillion on an annual basis, dwarfing trade in equities and nearly 67 times larger than the total value of annual world exports.

Tobin commented that part of the opposition to the tax proposal was philosophical: it was “rejected on the same general grounds that incline economists to dismiss out of hand any interferences with market competition, including, of course, tariffs and other barriers to international trade in goods and services.”¹⁹ The belief that expectations of economic actors are rational and that financial markets are efficient and that ultimately “financial markets know best” is widespread among market participants, even though, Tobin argued, it was not clear to him that trade in financial assets and trade in goods and services were one and the same thing, subject to the same insights from economic theory that had long been in favor of free trade. By the time of the global financial crisis in 2008, James Tobin was no longer with us, but one can safely assume that he may have agreed with another Nobel laureate, Robert Shiller, and his statement that our “economies, left to their own devices, without the balancing of governments, are essentially unstable.”²⁰ Such a tax, it was also argued, would also damage liquidity in currency markets, drive these markets to tax-free havens if it were not a universal tax, and so on.

John Maynard Keynes had already advocated a general financial transaction tax in 1936 to discourage the emergence of a class of speculators whose activities would be primarily motivated by the search for short-term profit linked to asset price changes and which, in his view, would needlessly add to market volatility. Keynes had warned that “it makes a vast difference to an investment market whether or not they (meaning serious investors who purchase investments on best long-term expectations of value) predominate in their influence over the game-players.”²¹ Tobin returned to and elaborated on his original proposal in 1978 in his presidential address to the Eastern Economic Association. He said:

It would be an internationally agreed uniform tax, administered by each government over its own jurisdiction. Britain, for example, would be responsible for taxing all inter-currency transactions in Eurocurrency banks and brokers located in London, even when sterling was not involved. The tax would apply to all purchases of financial instruments denominated in another currency—from currency and coin to equity securities. It would have to apply, I think, to all payments in one currency for goods, services, and real assets sold by a resident of another currency area. I don’t intend to add even a small barrier to trade. But I see offhand no other way to prevent financial transactions disguised as trade … Doubtless there would be difficulties of administration and enforcement. Doubtless there would be ingenious patterns of evasion. But since these will not be costless either, the main purpose of the plan will not be lost.²²

Supporters of the so-called Tobin tax have noted that with more than US$5 trillion traded daily on the currency markets by 2016, a 0.05 percent tax could generate some US$2.5 billion per day in revenue (about US$600 billion on an annual basis), which could then be directed to multiple ends, from climate change mitigation and adaptation to worthy projects aimed at poverty alleviation, inclusive economic growth, global public goods and so on. Indeed, one could make the argument that the case for the tax has become stronger in the wake of the 2008–2009 global financial crisis. As a result of the multiple government interventions to mitigate the impact of the crisis, levels of public indebtedness in rich countries – the providers of the bulk of development aid – are sky high, higher, in fact, than at any time since the end of World War II, and this has sharply curtailed their appetite for substantially boosting development aid. Tobin, using the figures for trade volumes in foreign exchange for 1995 (US$1.3 trillion per day), thought that the revenue collected would be less because the introduction of the tax would dampen the volumes traded, particularly for trades with a very short horizon for which even a small tax, on an annualized basis, applied to multiple transactions would raise transaction costs significantly. He also noted that the lion’s share of trading in the foreign exchange market took place among financial intermediaries, and were not customer–bank transactions, as were those supporting international trade in goods, for instance, or linked in some fashion to some real economic activity.

The Tobin tax proposals have generated a lively debate in policy-making circles and the academic community. Some have argued that a tax levied on currency transactions could, through creative financial engineering, be evaded. Moreover, not all foreign exchange purchases have a speculative dimension. There is a difference, it is argued, between hedging and speculation. Hedging is intended to protect the investor against unpredictable price changes; it is a way to limit price risk and can be seen as a form of insurance. Speculation, on the other hand, has the investor assuming greater risk in the expectation of a higher profit linked to price volatility and is, thus, no different than gambling. To avoid being fooled by the emergence of financial instruments that would disguise a foreign currency transaction (on which a tax would be due) in a different product (to which the tax would not apply), it might be better to shift the original Tobin tax idea, some argue, to a generalized transaction tax that would be broad enough to capture a wide spectrum of financial instruments.

In other words, one would wish to create a tax that would sharply limit the incentives for substitution across financial instruments or jurisdictions. Such a tax would have added benefits with respect to the original Tobin proposals. It could, in principle, generate more revenue, it would not disadvantage one type of financial transaction (i.e., foreign exchange trading) vis-à-vis others, and by discouraging speculation, it might actually steer financial resources to other more productive, value-creating ends, with a higher social return. Obviously, the level of the tax would be important. There is ample evidence from tax regimes across the developed and developing world that tax rates that are too high can unleash all sorts of perverse incentives (e.g., growth in the informal economy, tax evasion) that ultimately have totally counterproductive effects. On the one hand, according to the World Bank, countries in sub-Saharan Africa have the highest total tax rates in the world and also the narrowest tax bases and lowest levels of revenue collection.²³ On the other hand, the United Kingdom assesses a Stamp Duty on transactions on shares and securities without, it would appear, having hindered the growth of a robust financial sector. The Netherlands, France, Japan, Korea and other countries have introduced similar taxes as well.

There is also an interesting debate on the issue of how the tax would be collected. Here, the debate has evolved over the past several decades because of advances in technology and the concentration of financial transactions in a relatively small number of markets. Brazil introduced in 1993 a tax on bank transactions to widespread skepticism that the tax would actually work from a tax administration point of view, with many arguing that evasion would sabotage the effectiveness of the tax. However, digital technologies empowered the tax authorities and the tax proved to be fairly evasion-proof. Indeed, more generally, the arrival of online tax payments has reached even low-income countries by now and authorities are far more adept today at plugging revenue leakages that, in the past, were also associated with a high incidence of corruption. London, New York and Tokyo account for close to 60 percent of all foreign exchange trading; seven financial centers account for more than 80 percent of all transactions and, increasingly, transactions are cleared and settled in a centralized fashion, greatly facilitating tax collection. Tobin thought that the problem of tax evasion – which applies to all taxes and is hardly ever used as an excuse not to assess a particular tax – could be addressed in a number of ways. First, he thought that the tax could be collected by the countries themselves, and that developing countries in particular could be allowed to keep a significant share of the amounts collected to fund national development needs.

Second, tapping into a new revenue stream, countries could opt to lower other taxes, to reduce deficits, to ensure a more sustainable debt-servicing profile or to redress the effects of revenue losses linked to the globalized nature of the economy, with production and plant capacity much more mobile than had been the case at the turn of the twentieth century. This could create positive incentives for countries to voluntarily agree to the introduction of the tax. Given the international nature of the tax, he thought that the IMF’s Articles of Agreement could be amended to make the introduction of the tax an obligation of Fund membership.²⁴ This would imply that IMF members would not have access to its various financing windows and other benefits if they opted not to introduce the tax. Since a large share of foreign exchange transactions are concentrated in a relatively small number of markets, some general agreement among a handful of financial centers would most likely suffice to capture a large share of the revenue.

A clearly important issue pertains to the impact of a financial transactions tax on the economy. Would it reduce employment, not just in the financial sector but in other sectors of the economy that play a supporting role to finance, and by how much? Would it reduce liquidity in the markets? Would it lead to cross-border arbitrage as other jurisdictions (i.e., tax havens) sought advantage from the absence of the tax, if serious efforts are not made to ensure it is a universal tax? Critics of the tax point to the experience of Sweden, which in the 1980s introduced a tax on the trading of equities and, several years later, on fixed income securities. Because a significant share of trading in the Swedish market moved to London and New York, tax revenues were smaller than anticipated and the authorities ultimately opted for reducing the taxes and finally eliminating them altogether.

Other countries, however, have had much better experiences, including Japan, Korea and Switzerland, where a variety of taxes have been in place for many years and have not prevented the emergence of strong, deep financial sectors. Obviously, consideration of the tax would require the balancing of several objectives, from the desirability of generating additional revenue to promote economic development objectives (and addressing intensifying global catastrophic risks) to ensuring that implementation of the tax is feasible, and that it involves appropriate levels of international coordination and cooperation to ensure its success. In any case, given the size of today’s United Nations budget and the potential revenue to be collected through a Tobin tax, we think there is merit in Tobin’s idea that countries could be presented with a menu of choices as to how to allocate the proceeds of the tax, including, of course, a substantial allocation to the United Nations.

Indeed, in the longer term a Tobin tax or something similar, taking advantage of the substantial opportunities generated by economic globalization for government revenue generation, could be a promising avenue to provide funding to the United Nations, over and above the levels contributed from national treasuries linked to a fixed percentage of GNI. However, political opposition could be strong, given powerful anti-tax sentiments in many countries such as the United States, where even a carbon tax remains a distant prospect.²⁵ Financial sector interests in many countries are powerful and it is not difficult to imagine armies of lobbyists pressuring (or intimidating) lawmakers not to support the tax. Eichengreen makes the important observation that one would have to address in some way the issue of the mismatch between the volume of the tax that would be collected in particular jurisdictions and the ability or willingness of those countries to provide the concomitant levels of aid linked to the tax.²⁶ London accounts for a large share of foreign exchange transactions worldwide but the United Kingdom, though a generous donor, accounts for a much smaller share of total donor funding to the United Nations and other development initiatives. The point is a valid one, but it simply highlights that one would have to implement the tax in the context of international agreements that addressed the issue of burden-sharing through the balancing of multiple national and global objectives.

Schwartzberg has a different set of arguments against the introduction of a Tobin tax to fund the United Nations, some of which are relevant and cannot be ignored. One obvious consideration is that under existing chaotic financing arrangements, the United Nations does not have (for now, anyway; this could change, obviously) the capacity to spend in an efficient, value-creating way the large sums of money that could be collected through a Tobin-tax type of instrument. This is currently true, but it is not an argument against the tax itself; it is rather a commentary on the state of the United Nations, and the “benign neglect” it has suffered. He is also concerned that in the foreseeable future the United Nations will not have the administrative capacity to collect such a tax. This, in our view, is not a persuasive argument because, as already argued, there would be no need for the United Nations itself to be involved in the collection of such a tax through the creation of some UN fiscal agency. The tax would be collected – as suggested by Tobin – by the tax authorities in the countries where the transactions would take place and simply passed on to the United Nations or other recipients, as EU members do with the share of VAT contributions and customs duties that go to the European Commission in Brussels.

UN Budget Independence?

Far more persuasive is the argument Schwartzberg puts forward that the world is perhaps not yet ready to give the United Nations the kind of independence that having a direct revenue stream would theoretically provide. Empowering the United Nations by delinking its income from the discretion of its contributing members could feed into a narrative that argues that what is being created is a world government. The main response to this concern argues that giving the United Nations an independent source of funding could come with a shift to a system of weighted voting in the General Assembly, correcting the historic imbalance previously described. In any case, the experience of the EU in this respect is clearly relevant; giving the EU an independent source of funding has co-existed with a considerable degree of latitude for member states to exercise sovereignty in those areas not directly the responsibility of EU institutions.

Second, as described, the members of the United Nations themselves would determine what share of the global Tobin-like tax is allocated to the United Nations and what share goes to other ends, outside of the UN framework. This argument also applies to the first two funding proposals outlined previously. We have used, in the Schwartzberg proposal, a 0.1 percent of GNI contribution rate, but this rate could be agreed upon by members, in light of perceived needs and the desirability of creating a reserve for future contingencies. In principle, it could be reduced or increased, pari passu the likely need for global action in the future across a range of areas. Should, for instance, the international community finally get serious about global disarmament (as we have proposed in Chapter 9, in the context of the bringing into being of an International Peace Force), the contribution rate could be raised to finance some of the transition costs associated with the retraining and redeployment of the millions of people currently employed in the military-industrial complex.

The point here is that the ultimate authority for funding levels remains with United Nations members, but in a way that is more transparent and efficient than the current system, which has distributed power over the budget in a very uneven way and has rendered the United Nations increasingly irrelevant in a number of areas.

Third, a United Nations with a more reliable and larger income stream will be a more effective organization, at a time when budgets everywhere are going to come under pressure because of demographic trends (e.g., aging populations in much of the developed and emerging world), the costs associated with the impact of climate change and, sooner or later, the need to deal with the effects of the next global financial crisis. As the United Nations is empowered not only to come to the assistance of low-income countries, but becomes a truly global organization with something to offer to all its members, public perceptions of the organization’s usefulness could shift in a fundamental way. For example, we think that the business community could be a strong advocate for the creation of a dependable system of revenue generation for the United Nations, given the large economic costs associated with economic and political instability in many parts of the world, as indicated in Chapter 8 on the establishment of an International Peace Force or, more recently, the concerns expressed by senior policy-makers (e.g., the Governor of the Bank of England) about the potential financial shocks of climate change.

Our Preferred Option for Now

We think that in the short term, the Schwartzberg proposal of setting contribution rates at a small fixed share of each country’s GNI has multiple merits.²⁷ Something like 0.1 percent of GNI would not be onerous. It would create a sense of ownership of the organization across the membership, in a way that would have numerous long-term benefits for the United Nations’ relevance and credibility. It would be transparent and easy to administer and would relieve the General Assembly from constantly having to come up with novel schemes that in the end violate the principle of even-handedness of treatment across members. A move to a new funding mechanism would also have to be accompanied by a recommitment from UN members to the principle that contributions to the budget are a legal obligation of membership, not a choice that members make based on other considerations, such as whether they like or support (or not) particular programs or activities. Using budget contributions as leverage (particularly by the larger countries) to encourage reforms within the United Nations system is not consistent with the cooperative nature of the organization, where change should come as a result of deliberations and consultations among members and the forging of consensus for change.

With a system of weighted voting in the General Assembly, it could also allow a return to a budget where the United Nations itself (rather than donors) had ultimate say on the uses that are made of the resources collected, as opposed to the present system where, de facto, the General Assembly has lost control of the lion’s share of the budget to its wealthier members through the use of voluntary earmarked contributions, where national donor priorities take precedence over the interests of the whole membership.

Over the medium term the above proposals are not mutually exclusive. There is no reason why the Schwartzberg proposal could not in time be complemented by something like a Tobin tax. As the United Nations established a track record of fiscal prudence and efficiency in the management of financial resources, there is reason to believe that members might be ready at some point to entrust it with a larger body of funding, particularly if by then all the members of the UN, not just its low-income members, can have access to its various programs and facilities.

In connection with the goal of a properly resourced and enhanced UN system, a high-level panel of experts should be convened to explore additional international revenue generation mechanisms, including, for example, an international carbon tax on fossil fuel consumption, a global tax on certain types of mineral resource extraction, an internationally tradable system of pollution permits, duties on alcohol and tobacco, a global wealth tax or other workable ideas, whether based on effective existing international schemes (e.g., that of the International Maritime Organization) or otherwise. In respect of the taxation of fossil fuels, it is noteworthy that according to a 2015 IMF study, at present, on a global scale, some US$5.3 trillion is spent annually subsidizing the consumption of gasoline, coal, electricity and natural gas – a sum equivalent to 6.5 percent of world GNP. Sixty percent of the benefits of the subsidy for gasoline go to the top 20 percent of the income distribution, highlighting the deeply regressive nature of such subsidies, which have become an instrument for worsening income disparities, at a time when such inequities have reached unprecedented levels. According to the IMF, the elimination of such subsidies would result in a 20 percent drop in emissions of CO₂, contributing to mitigation of the impacts of climate change.

One important element in empowering the United Nations by expanding the envelope of resources available to it and reducing the uncertainty of resource flows, which has been a central characteristic of its history, is to signal to its member countries that resources will be used responsibly and transparently, to build trust in the organization’s capacity to enhance the efficiency of resource use.²⁸ This would strengthen the hand of those who have long argued that contributions to the UN budget are an inseparable obligation of membership, not to be used to blackmail or coerce the organization in the interests of national prerogatives. Indeed, in tandem with such reforms, the UN should play a crucial role in helping its members address a number of serious problems that currently afflict member country tax systems, such as the “race to the bottom” that results from tax competition and that, if allowed to continue, is likely to limit further the ability of governments to respond to vital social and economic needs.²⁹ We also refer the reader to the discussion on the relationship between corruption and the ability of governments to collect tax revenues presented in Chapter 18, which includes a proposal for the creation of an International Anti-Corruption Court.