Need For Enlargement of Security Council International Law
Need For Enlargement of Security Council International Law
Need For Enlargement of Security Council International Law
A Project On
Made By: Nidhi Navneet 3rd year (5th sem) ROLL No.570 B.A.LL.B. (Hons)
ACKNOWLEDGEMENT I am feeling highly elated to work on the case law Need for Enlargement of Security Council under the guidance of my faculty of Public International Law, Dr. P. P. Rao. I am very grateful to him for his exemplary guidance. I would like to enlighten my readers regarding this topic and I hope I have tried my best to pave the way for bringing more luminosity to this topic.
I also want to thank all of my friends, without whose cooperation this project was not possible. Apart from all these, I want to give special thanks to the librarian of my university who made every relevant materials regarding to my topic available to me at the time of my busy research work and gave me assistance. And at last I am very much obliged to the God who provided me the potential for the rigorous research work.
At finally yet importantly I would like to thank my parents for the financial support.
Sources of Data
The whole project is made with the use of secondary source. The following secondary sources of data have been used in the project1. Books 2. Websites
Mode of Citation
The researcher has followed a uniform mode of citation throughout the course of this research paper.
Type of Study
For this topic, the researcher has opted for Descriptive and Explanatory type of study as in this topic, the researcher is providing the descriptions of the existing facts.
Introduction ..................................................................................................... 4 Composition of Security Council .................................................................... 6 The Amendment of the UN Charter ................................................................ 7 First Instance of Enlargement of Security Council in 1963 ............................ 8 The Need for Enlargement of Security Council ........................................... 10 Attempts for enlargement of Security Council ............................................. 12 The content of the proposals ......................................................................... 14 1. Size of an Enlarged SC ........................................................................ 15 2. Membership categories and Regional representation .......................... 15 2.1. Membership categories ................................................................... 15 2.2. Regional representation ................................................................... 17 Is there a need for enlargement of security council ...................................... 18 Will an enlarged Council deliver the needs sought in the reform? ........ 19 Is Size of the Council on the basis of Equitable Geographical Representation ........................................................................................ 19 Extended veto rights to new states may pose conflict in decision making process .................................................................................................... 20 Views of the Permanent Five ................................................................. 20 Conclusion ..................................................................................................... 22 References ..................................................................................................... 23
INTRODUCTION
Under the United Nations (UN) Charter, the Security Council has a theoretically impressive range of powers and duties. Most significant is its primary responsibility for the maintenance of international peace and security. Unlike the General Assembly it can in principle take decisions that are binding on all members of the UN. The Council meets throughout the year, mainly to consider armed conflicts and other situations or disputes where international peace and security are threatened. It is empowered to order mandatory sanctions, call for ceasefires and authorize military action on behalf of the UN. The Council also has a role, with the General Assembly, in the admission of new members to the UN, the appointment of the Secretary General and the election of Judges in the International Court of Justice. The United Nations Security Council, the principal organ responsible for maintaining international peace and security, has been faced with criticism since its establishment in 1946. Critics and politicians alike have criticised this Council for its small size and exclusive nature, its relations with the General Assembly, its working methods, and its undemocratic structure. The most criticism has been directed at the infamous power of veto, namely the ability of the five permanent members of the Council (USA, Russia, France, UK, and China) to quash any non-procedural matter with their negative vote, irrespective of its level of internationals support. All these criticisms enhance the need for enlargement in the Security Council. However, because of the high number of proposals on the reform of the Council and strong disagreements among advocates of different proposals, not much has been achieved. Analysts believe that an increase in the number of seats in the Council is much more plausible than reforming or removing the veto. At least there is universal agreement about the former while the latter is much more controversial. Each of the permanent members has supported one proposal for expanding the Council. However, the main dispute is on details and countries have not yet managed to agree on a common denominator. Yet despite dramatic changes in the international system over the past fortyfive years, the composition of the UNSC has remained unaltered since 1965, and there are many who question how long its legitimacy will last without additional members that
Jus cogens (Latin for compelling law) is a principle in international law. In brief, jus cogens refers to crimes generally accepted by the international community of states as unlawful, and from which no derogation is ever permitted. Although, no clearcut definitions exist of what constitutes jus cogens, it is generally accepted that the term includes the prohibition of genocide, piracy, slavery, torture, and wars of territorial aggrandizement.
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D. W. Bowett, the Law of International Institutions (1970), p. 25. Article 23 of the U.N. Charter. 4 Thomas D. Grant, Admission to the United Nations. Charter Article 4 and the Rise of Universal Organization, Leyden and Boston, Martinus Nijhoff, 2009.
The General Assembly, Mindful of Chapter XVIII of the Charter of the United Nations and of the importance of reaching general agreement as referred to in Resolution 48/26 of 3 December 1993, determines not to adopt any Resolution or decision on the question of equitable representation on and increase in the membership of the Security Council and related matters, without the affirmative vote of at least two thirds of the Members of the General Assembly. See Resolution adopted by the General Assembly. Question of equitable representation on and increase in the membership of the Security Council and related matters, A/RES/53/30, 1 December 1998. 6 See Bardo Fassbender, The United Nations Charter as the Constitution of the International Community, Leiden and Boston, Martinus Nijhoff, 2009, pp. 184-185. According to this author, the constitutional quality of the UN Charter sets out limits to amendments of its basic principles and leaves little room for any change via customary law: Bardo Fassbender, UN Security Council Reform and the Right of Veto. A Constitutional Perspective, The Hague/London/Boston, Kluwer Law International, 1998, pp.138-147.
Dr. S. K. Kapoor, International Law & Human Rights, 18th ed., 2011, Central Law Agency, at p. 528-30.
Need for Enlargement of Security Council THE NEED FOR ENLARGEMENT OF SECURITY COUNCIL
There are a number of reasons for reforming the SC causing its enlargement. They may be enumerated as follows: 1. Admission of New States in UN. As mentioned earlier, at San Francisco the Charter was signed by only 50 States. The UNs membership was more than double that number when the amendment on the increase in non-permanent members of the SC entered into force. Nowadays, the number of UN members has increased almost fourfold since its foundation. Since its birth, the international community has completely changed. At the beginning the UN was composed of Western and Eastern European countries plus a number of Latin America countries. Nowadays the majority of members belong to African and Asian countries. And thus, there is a greater need of world-wide representation in the Security Council which urges for its enlargement. 2. Change in role of Security Council with end of Cold war. The role of the SC has dramatically increased since the end of the Cold War. While during the Cold War the SC was the place where the two superpowers engaged in verbal confrontation and was virtually paralyzed, but, after the fall of the Berlin wall its policy changed. The SC started to become the place where effective decisions were taken. This is demonstrated, for instance, by the number of peacekeeping operations put in place and by the crises solved, such as the Timor Leste case. The SC has also taken on an important territorial administration function, for example in Kosovo before its independence. This factor demands that until and unless there is no fair representation of countries, this function of SC cant be performed with diligence and thus there is a dire need of enlargement of SC. 3. The decision making power of Security Council. The Charter attributes to the Council the power to take decisions on measures to be carried out by member States.8 Mandatory sanctions fall within this framework. They are a kind of administrative regulation adopted to cope with concrete situations such as threats to peace. Since 9/11 the SC has started to adopt legislative Resolutions, i.e.
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Kara C. McDonald and Stewart M. Patrick, UN Security Council Enlargement and U.S. Interests, Council Special Report No. 59 December 2010, Council on Foreign Relations, International Institutions and Global Governance Program. Available at: <http://www.cfr.org/international-organizations-andalliances/un-security-council-enlargement-us-interests/p23363>. 11 UN High-level Panel on Threats, Challenges and Change, A More Secure World: Our Shared Responsibility (A/59/565), 2 December 2004, available at http://www.un.org/secureworld/.
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UN Secretary General, In Larger Freedom. Towards Development, Security and Human Rights for All (A/59/2005), 21 March 2005, available at http://www.un.org/largerfreedom/contents.htm.
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Jonas von Freiesleben, Reform of the Security Council, Article no. 1, Managing Change at the United Nations, at pg 1. Available at: < http://globalsolutions.org/files/public/documents/ManagingChange-1.pdf>. 14 See Jacob Silas Lund, Pros and Cons of Security Council Reform, Center for UN Reform Education, 19 January 2010, available at http//www.centereforunreform.org. The author is grateful to Ms. Elisabetta Martini for writing the section on the content of the latest SC reform proposals.
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See UN General Assembly, Statement by Libyan Arab Jamahiriya H.E. Colonel Muammar Al-Qadhafi, Leader of the Revolution, General Debate of the 64th Session, 23 September 2009, available at http://www.un.org/ga/64/generaldebate/LY.shtml. 16 See Statement on Security Council reform, sent by Ambassador Sanja tiglic, Permanent Representative of Slovenia to the United Nations, to Zahir Tanin on 9 February 2010, available at http://www.reformtheun.org/index.php?module=uploads&func=download&fileId=4330.
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See UFC platform on Security Council reform, 20 April 2009, available at http://www.italyun.esteri.it/NR/rdonlyres/C37FC89F-8132-4CA8-A2F9149515B37BD1/0/2009_04_17screform.pdf. 18 See UK-French Summit Declaration on Global Governance and Development, 6 July 2009, available at <http://www.franceonu.org/spip.php?Article4052.> This joint declaration has been reproposed as the UK/French Position on Reform of the United Nations Security Council , sent by Mark Lyall Grant and Gerard Araud, Permanent Representatives of United Kingdom and France, to Zahir Tanin on 1 March 2010, available at: <http://www.reformtheun.org/index.php?module=uploads&func=download&fileId=4324.>
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See Liechtenstein proposal on Security Council reform: elements for the intermediate model, 26 February 2010, available at: <http://www.liechtenstein.li/en/fl-aussenstelle-newyork/fl-aussenstellenewyorkdokumente/fl-aussenstelle-newyork-dokumente-un.htm.>
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See the Statement by Ambassador Jos Filipe Moraes Cabral, Permanent Representative of Portugal, at the informal meeting of the plenary on the intergovernmental negotiations on "The Question of Equitable Representation on and Increase in the Membership of the Security Council and related matt ers, New York, 8 December 2009, available at: <http://www.reformtheun.org/index.php?module=uploads&func=download&fileId=4152>. 21 Natalino Ronzitti, The Reform of the UN Security Council, DOCUMENT IAI 10, Dated 13 July 2010, Istituto Affari Internazionali, at p. 10-13. Available at: <www.iai.it/pdf/DocIAI/iai1013.pdf>
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Nadia Sarwar, Expansion of the United Nations Security Council, available at: <http://www.issi.org.pk/publication-files/1328593104_35074620.pdf>. 23 Remarks by H. Exc. Mr. Jean-Marc de La Sablire to the General Assembly Plenary Meeting on the Question of Equitable Representation in the Security Council and Enlargement of Membership and Related Issues, 2005.
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Statement by H.E. Karen Pierce, the Deputy Permanent Representative of the Mission of the United Kingdom of Great Britain and Northern Ireland, to the General Assembly Plenary Meeting on the Question of Equitable Representation on the Increase in the Membership of the Security Council and Follow-up to the Outcome of the Millennium Summit, 2006. 25 U.S. Views on UN Reform, Security Council Expansion. The American Journal of International Law 99, no. 4 (2005): 906-908. 908. The American viewpoint is best realized in Burns statement that we cannot let discussion on expansion divert our attention from, and delay action on, other important, more urgently needed UN reforms. 26 United States Department of State. U.S. Priorities for a Stronger, More Effective United Nations . Available at: http://www.state.gov/documents/organization/48439.pdf. 27 Statement by Sergei Lavrov to the Open-Ended Working Group of the General Assembly on Security Council Reform, 29 May 1998. This built on an earlier statement that rejected the notion that the right of veto is an anachronism inherited from the Cold War, but that it is rather a critically important and indispensable component in the smooth functioning of the Council. (Statement by Sergei Lavrov to the Open-Ended Working Group of the General Assembly on Security Council Reform, 22 May 1996).
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CONCLUSION
Expansion of the UN Security Council is an important issue, but the process would take time. It will require many rounds of thorough discussions and negotiations. Genuine negotiations will require compromises as well as clarity on defined positions. The major criticism on the current composition of the SC is not so much its lack of efficiency as the deficit of its representation and an indefinite stalemate risks of delegitimizing the SC. The real problem is the scope and the content of the reform. A further point is how that reform might be achieved. It seems that the majority of UN members share the opinion that the SC should be enlarged. This opinion is also gaining currency within the P5, in spite of their fear that an enlarged SC might diminish their role. A better representation of the international community is requested for other forums such as the G8 and its expansion towards G14 and G20. This is a trend that should not be
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Malik, J M. Security Council Reform: China Signals Its Veto. World Policy Journal (2005): 19-27. 20. See Jacob Silas Lund, Pros and Cons of Security Council Reform, op. cit.
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REFERENCES
Dr. S. K. Kapoor, International Law & Human Rights, 18th ed., 2011, Central Law Agency. Rumki Basu, The United Nations, Structure and Functions of an International Organisation, 2004, Sterling Publishers Pvt. Ltd. Kara C. McDonald and Stewart M. Patrick, UN Security Council Enlargement and U.S. Interests, Council Special Report No. 59 December 2010, Council on
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http://globalsolutions.org/files/public/documents/ManagingChange-1.pdf>. Websites: http://www.diplomatie.gouv.fr/en/france-priorities/united-nations/united-nationsinstitutions-and/organs-provided-for-in-the-charter/article/united-nations-securitycouncil. http://www.unc.edu/depts/diplomat/item/2008/1012/comm/vargas_un.html. http://www.un.org/News/Press/docs/2012/ga11313.doc.htm. http://www.franceonu.org/france-at-the-united-nations/thematic-files/unreform/security-council-reform/article/security-council-reform. http://www.munfw.org/archive/45th/cr2.htm. https://www.globalpolicy.org/security-council/security-councilreform/membership-including-expansion-and-representation.html. http://www.centerforunreform.org/?q=node/35. http://www.csmonitor.com/Commentary/John-Hughes/2011/0120/It-s-time-toexpand-the-UN-Security-Council.-But-who-gets-a-seat. http://www.hbokennisbank.nl/en/page/hborecord.view/?uploadId=haagsehogeschool%3Aoai%3A repository.hh.nl%3A1424.
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