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Debate Club
DEBATE CLUB 11/29/04

Is the U.N. Security Council Broken?

Frederick Rawski and Ruth Wedgwood debate.

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At the end of the Cold War, the United Nations Security Council was freed from the deadlock caused by the tension between the United States and the USSR and empowered to resolve major international issues. In the past 15 years, the UNSC has involved itself in an increasing number of places around the world. More U.N. peacekeepers are currently in action than ever before.

But many people argue that the body, overextended and underfunded, is also weaker than ever, something most clearly shown when the United States went to war in Iraq despite opposition from the UNSC. In addition, people question the membership of the UNSC, wondering if the five permanent members—Britain, China, France, Russia, and the United States—represent the world's current power centers.

Is the UN Security Council broken—and, in any case, what should be done to strengthen, if not fix, it?

Frederick Rawski is a litigation associate at Stroock & Stroock & Lavan LLP, and an author of "The United States in the Security Council: A Faustian Bargain?", published in The UN Security Council: From the Cold War to the 21st Century . Ruth Wedgwood is Edward B. Burling Professor of International Law and Diplomacy at the School of Advanced International Studies at Johns Hopkins University.

Rawski: 11/29/04, 01:08 PM
Open hostility towards the Council, and the U.N. as a whole, has become a regular fixture of American political debate, exemplified in Jesse Helms' speech before the Security Council in 2000 and in more recent public comments emanating from the White House characterizing the Council as an institution which has become, or is in danger of becoming, "irrelevant" or a mere "debating society." In fact, the Council is far from irrelevant. When it has had the support of the U.S., the Council has been an effective vehicle for the resolution of conflict and the development of important principles of international law. These contributions have been substantial and include the establishment of the international criminal tribunals for the former Yugoslavia and Rwanda (and the related development of principles of international criminal law), the effective deployment of more than 40 peace operations globally since 1987, including the ambitious 'transitional administrations' in Kosovo and East Timor, a dramatic increase in the use of sanctions regimes (with mixed success), and the increasingly broad exercise of its Chapter VII powers to intervene in civil conflict in Africa.

Beyond superficial diagnoses of the Council's lack of relevance, a more significant debate has emerged over whether the Council is still suited to one of the main purposes for which it was created—the prevention of unlawful acts of aggression by one state against another—prohibited by Charter Article 2 (4). Recent critics point to the Council's failure to take decisive measures to enforce its many resolutions on Iraq (there were over 63 Iraq-related resolution passed by the Council between 1990 and 2002), and suggest that the U.N. stick to less controversial tasks such as overseeing post-conflict reconstruction, the delivery of humanitarian aid, and the monitoring of elections and ceasefires. This would be a mistake.

Despite its reputation for deadlock and inflexibility, the Council has shown itself to be eminently pragmatic at crucial times, among them: the fashioning of a then-unprecedented "coalition of the willing" in 1990 to end Iraq's unlawful occupation of Kuwait, the expansion of notions of 'threat' in authorizing the 1994 Haiti intervention, and the recognition that the right of self-defense under Charter Article 51 can encompass action against non-state actors, apparent in Resolutions 1368 and 1373, passed shortly after September 11th. Nor can the inability of the permanent five members of the Council to unanimously confer a Council mandate upon the 2003 invasion of Iraq be viewed as an abdication of its responsibilities in light of what we now know—that the cease-fire and inspection regimes (set against the backdrop of the threat of military intervention) were effective at limiting Saddam Hussein's WMD capabilities. Perhaps most importantly, the nature of terrorism and weapons proliferation demand an international effort which will require the cooperation of a wide-range of states, and an international regime to monitor the behavior of states. The Council remains the best of limited alternatives, and it is in the long-term interests of the U.S. to maintain and enhance the Council's role in this regard. One day, the U.S. may find itself in a much less dominant position vis-a-vis its allies and its enemies.

To insist that the Council remains relevant and should not be abandoned in favor of a return to the unilateral and unconstrained use of force by states is not saying much. Reform is in order. But what reforms must be made to the structure and practice of the Council in order to make it responsive to the changing nature of political violence, and to what extent are these reforms even possible given the dynamics of political power in the Council today? Several things must be done. Members of the Council must resist the temptation to become complacent, and mired in a "them v. us" attitude vis-a-vis the U.S. and U.K., in particular on the issue of terrorism (on which the Council's overall record is poor). Specifically, the Council must take more dramatic steps to implement the provisions of Resolution 1373. Thus far, the Counter-Terrorism Committee established by that resolution has failed to meet expectations. Traditional doctrines of self-defense have also proven to be a poor, or at least incomplete, fit for the fight against terror. The Council needs to take the lead in establishing a framework governing the pre-emptive use of force. On Thursday of this week, a report of the High-Level Panel on Threats, Challenges and Changes will be released, and is expected to outline such a framework (similar to that recently published by one of the Commission's members, Gareth Evans). The willingness of the U.N. and the U.S. to address the recommendations of that panel may affect the Council's future prospects (as well as my, perhaps overly upbeat, assessment in this post).

Finally, there is the perpetually sticky issue of structural reform of the Council itself. The structure of the Council today is neither representative nor reflective of the current balance-of-power in the world. Some membership reform is essential if Council decisions are to retain any authority beyond U.N. Plaza. Most agree that bringing General Assembly-style representation to the Council would deal just as deadly a blow to the Council as no reform at all. The most viable proposals involve the addition of several non-veto wielding permanent seats (contenders include Germany, Japan, Brazil, India and at least one, possibly rotating, African seat).

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Wedgwood: 11/30/04, 09:05 AM
The United Nations remains a splendid place to talk quietly to other nations—in a side lounge, or ambassador's study, as well as open settings. It is a useful place for informal contacts between countries or actors chary of being seen together. The Macedonians and Greeks visited New York on repeated occasions in the 1990's for a "taxicab" version of shuttle diplomacy, reaching an "interim accord" that resolved many of the issues between those two countries, and making life easier in an unsteady region. The Portuguese and Indonesians conducted quiet talks, facilitated by the Secretary-General, on the future of East Timor, without having to face the question of who would come to the other's capital. Though ultimately frustrated, the Turkish and Greek communities of Cyprus were brought close to a successful deal. The United Nations has called upon skilled mediators. Some are senior staff, and others are recruits from the outside, appointed as Special Representatives of the Secretary-General. These have included some wonderfully talented men, and a few women, including Lakhdar Brahimi, an Algerian who has served in Haiti and Afghanistan; Aldo Ayalo, an Italian who helped to end the conflict in Mozambique, and James Baker III, the former U.S. Secretary of State who sought a resolution of the dispute in Western Sahara.

The United Nations has also been a locus for the negotiation of new treaty norms. The International Law Commission has discussed questions such as state responsibility, the use of waters from international rivers, and the issue of treaty reservations. Many of the treaties ratified by the United States, such as the Covenant on Civil and Political Rights, the Covenant on Terrorist Bombing and the Covenant against the Financing of Terrorism, were framed and negotiated in U.N. bodies. Many of these treaties have reporting requirements that are a useful prod for states.

But that said, one must retain a realist's perspective on how U.N. politics actually operate, both in the bureaucracy and in the political organs. The U.N. Security Council works only as well as the relationships among its permanent five members—the United States, United Kingdom, France, Russia, and China—each of whom wields a veto. If there is a topic on which the "P5" have concurrent views, the Council can function well. But there are areas that are generally off-limits in the Council, including the problems of Tibet, Kashmir, and Chechnya. The desire of France and Germany, under current management, to show independence from the United States, has complicated the Council's work. And one should not overlook the role of regional groups, which are used as the caucuses for the election of members for all U.N. organs and often, for determining positions in the General Assembly. The so-called "G77" is a long-standing group of developing countries—and by now it has expanded from its original size of 77 to 133 countries. This is two-thirds of the General Assembly, enough to pass a resolution on any "important" question, with no veto available to the P5 in that venue. Regional caucuses are often the "explanatory variable" for such results as Libya's election to chair the Human Rights Commission. The outcomes of important votes at the U.N. are often determined in regional caucuses in which the United States cannot be heard, and can only follow through friends. The political credit given in such groups for "consensus" often means that countries feel obliged to go along with a caucus position, even if they would prefer to do otherwise.

Another great problem is the absence of any enforcement power. The United Nations has never purported to require countries to contribute military assets. In peacekeeping, it gets by with a number of countries that have traditionally made troops available, such as India, Pakistan, Bangladesh, and Fiji. But there is a distinct limit to the risks that countries will take for $988 per month per troop. During the 1990s, the Security Council and the Secretariat came to realize that they could not do robust peacekeeping, and instead delegated enforcement tasks, such as NATO's entry into Bosnia. Europe's military drawdown has left fewer troops available for peace enforcement and limited equipment available for loan to contingents from other countries. The United States often remains the only source of transcontinental lift and logistics. Even under a multilateral aegis, the act of enforcement depends on COWS—"coalitions of the willing" who choose to take on the burden of enforcing a mandate. The unwillingness of important democracies to support the defense budgets necessary for effective combat forces has a strong consequence: there may be an urgent problem, but no volunteers.

I will talk more about U.N. reform in a later post. But beware of what you wish for. Simply expanding the Security Council can slow down its deliberations. New members of the Council may disfavor outside intervention even in genocidal conflicts, and this is an issue that should concern both liberals and conservatives alike. The Council could easily end up weaker, rather than stronger.

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Rawski: 12/1/04, 07:22 AM
If by "retaining a realist's perspective," you mean that any plan to reform the Council must recognize and accommodate the interests of the P5, then I agree. The Council's ability to make decisions and to enforce them are and will remain subject to the self-interested politicking of its most powerful members, and on occasion, a well-organized grouping of its less powerful ones. While the P5 are certainly guilty of keeping certain issues 'off-limits' (including those that you have identified, and others), they have in recent years exercised their formal veto relatively sparingly—12 substantive vetoes between 1990 and June 2003. As for enforcement, while the Council has no standing army to enforce its decisions, Member States are under an obligation to comply with Council resolutions as a matter of law, and despite regular difficulty obtaining sufficient troop contributions, the Council has enjoyed relative success in funding and deploying peace operations.

Appeal to realism can also suggest a rejection of U.N. Charter principles as fundamentally impracticable. Despite its weaknesses, the Council remains the key institution for the development and enforcement of an international rule of law, and the growing perception that the P5 are no longer committed to those principles has affected the standing of the Counsel and the U.N. generally, and threatens to undermine U.S. foreign policy objectives. Recent public opinion polls as well as DOD commissioned reports have noted the dramatic decrease in U.S. credibility amongst European and Muslim allies; at the U.N., U.S. backed resolutions condemning human rights violations in Belarus, Zimbabwe and Sudan, and sanctioning Iran were rejected, with reference to 'U.S. hypocrisy'; and U.N. staff have become increasingly targeted, most recently in Afghanistan. A genuine commitment by the P5 to some Council reform may help to reverse this trend.

Expansion does bring with it the possibility of more and slower deliberations, as new members bring with them new issues, perspectives and, of course, interests. But this is unlikely to affect the short list of 'off limits' issues, and additional permanent members will have a longer-term interest in the effectiveness of the Council. Nor is keeping the club exclusive likely to increase the chances of the Council taking measures to prevent genocide (see e.g., current apprehensiveness about action in Sudan, and remarks by a former Council member suggesting that the P5 would turn a blind eye to genocide in Burundi). Finally, a Council with no permanent representation from Latin America, Africa, or the Muslim world has little chance of commanding authority. Of course, despite a more organized attempt by the "G4" (Brazil, Germany, Japan, India) to lobby their peers, even a modest expansion may be scuttled by competing regional interests. Though a non-starter at present, the idea of a common E.U. seat has also been floated (by Italy, reportedly to obstruct the German bid). For those opposed to the veto, its maintenance will be the price of expansion. At best, it has been suggested that the P5 might enter into a 'gentleman's agreement' to restrict use of the veto to substantive matters of peace and security, excluding others—such as the election of the Secretary General.

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Wedgwood: 12/2/04, 06:34 PM
A modest but potentially tie-breaking idea for Security Council reform is simply to allow countries to serve consecutive terms, in the current 15 member structure. At present, a non-permanent member has to take two years off, before standing for election again. Countries that contribute important assets to U.N. operations—whether financial, military, or humanitarian—deserve the regard of their colleagues. This modest proposal would avoid the impossible rivalries in attempting to designate permanent winners for regional seats on the Council. It would allow Japan, which contributes nearly 20 percent of the U.N. regular budget, to serve more frequently, for example.

The Secretary General-appointed "High-Level Panel on Threats, Challenges and Change"—chaired by former Thai prime minister Anand Panyarachun—has publicly released its findings. The reform panel has an impressive membership, including former U.K. ambassador David Hannay, former chairman of the French conseil constitutional Robert Badinter, former Australian foreign minister Gareth Evans, and former U.S. national security advisor Brent Scowcroft. It offers two competing proposals for enlargement of the Council, with new seats to be distributed between four regions (Africa, Asia and Pacific, Europe, and Americas). The first model would have six new permanent seats without a veto, along with three additional non-permanent two-year seats. The second model would create eight new seats with a new-fangled four-year renewable term, plus (as an orphan) an additional two-year non-permanent seat. But in the panel's recommendations, one can already see some of the local splits. For example, the Latin American members of the High-Level Panel are said to prefer the U.N.'s current regional groups as the basis for elections and the distribution of seats—which would allow the Latin American and Caribbean countries to run without facing rivals from North America, who are currently placed in "WEOG"—the "Western European and Others" Group. Central European countries are likely to voice similar concerns. I retain my own concerns about slowing down the Council's work, and potentially making it even harder to get workable mandates through the varied voting preferences of new members. Like it or not, the observed voting pattern of countries often turns on the states' particular interests. For example, China has a new $96 billion dollar energy deal with Iran. Could this affect China's votes on how to respond to Iran's evasiveness in IAEA inspections? One shouldn't assume that non-permanent member will be immune to the same sorts of constraints on their political behavior.

By the way, the High-Level Panel has striking comments on some more substantive matters. It notes, for example, that the U.N. is morally obliged to keep militia groups from misusing U.N.-sponsored refugee camps. (Recall the intimidating presence of the Hutu militia in the Goma camps maintained by UNHCR across the Congolese border after the Rwanda genocide). The Panel also argues that the Council may need to thwart "nightmare scenarios combining terrorists, weapons of mass destruction and irresponsible States" through preventive action, even where a latent threat is not yet "imminent." The Panel concludes with considerable optimism that the Council will rise to such challenges. (See paragraph 190: "if there are good arguments for preventive military action, with good evidence to support them, they should be put to the Security Council, which can authorize such action if its chooses to. If it does not so choose, there will be, by definition, time to pursue other strategies, including persuasion, negotiation, deterrence and containment—and to visit again the military option.") Some readers may doubt whether the Panel is right in assuming there will always be world enough and time for revisits—the intelligence that may reveal the location of concealed WMD sites can quickly get stale.

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Rawski: 12/3/04, 12:05 PM
Last night, when High-Level Panel members Gareth Evans and Gro Brundtland presented the Panel's findings to a sympathetic audience at the New York City Bar Association, the atmosphere was one of cautious optimism. Those present agreed that the report constituted the most coherent U.N. reform proposal to date. At the same time, anyone who has followed past reform efforts has learned to keep expectations low. Many felt that this is not an ideal moment to pursue dramatic reform, given the high level of hostility towards the U.N. in the current administration and Congress (further fueled by the Oil for Food scandal), which shows no signs of abating. While there are things in this report with which the White House should be pleased (its stance on terrorism), there are aspects it surely won't like—such as its proposals to expand the Secretariat bureaucracy, its invocation of the International Criminal Court, and its outright rejection of unauthorized, preventive use of force by "any single—even benignly motivated—superpower."

The report's real strength is its focus on how the Council makes decisions substantively, and though it advances proposals for Council expansion, as you discuss, it does not over-obsess about the difficult issue of Council representativeness. The report endorses a number of broad principles and suggests guidelines, which the Panel clearly hopes will introduce more discipline and consistency to Council decision-making (whatever its membership) and help to avoid a repeat of the Council's past brushes with "irrelevance," such as its inaction on Rwanda, and the unauthorized interventions in Kosovo and, to some minds, Iraq. These include the delineation of five non-exclusive factors against which the Council should assess requests for the use of force, including its use in cases of 'non-imminent' threat (the report declines to adopt the language of pre-emption) and on humanitarian grounds. It also shores up a concept developed by Mr. Evans as part of a prior commission convened by the Canadian government—an "emerging norm of a collective international responsibility to protect," a paradigm shift away from a strict interpretation of Article 2 (7) which will continue to make many nervous. The Panel (which notably included the Secretary General of the League of Arab States) was also able to settle on a definition for terrorism, something that has eluded both Council and G.A.-initiated efforts for decades. What's more, the agreed-upon definition is surprisingly straightforward, providing little wiggle room for justifying the targeting of civilians in any context, including resisting occupation.

While the report implicitly (and sometimes explicitly) criticizes the Council's past lack of consistent and principled decision-making, it nonetheless, correctly in my view, puts its support squarely behind the Council as the international body with the legal capacity to authorize the use of force, roundly rejecting a broad interpretation of Article 51 which could provide cover for a Bush-style 'pre-emptive' war. The Panel was also conspicuously silent on the possible role of the G.A. to act as a backstop to the Council via the "United for Peace" Resolution.

Of course, the big question is: will this report lead to any change? Many of its recommendations (there are 101 of them) will go before the sixtieth session of the G.A. next fall. It will be particularly interesting to see if the report has any influence on future resolutions on terrorism. Expansion of the Council under either of the proposed schemes will also require the amendment of Charter Article 23, which requires approval by a two-thirds vote in the G.A. and ratification at the national level by two-thirds of the Member States (including the P5). That's a tall order. Indeed, the greatest threat to change may be that the issue of Council membership (particularly wrangling over the permanent seats proposed in the Panel's first option) will overshadow all else.

I'll sign off with the words of a different President from an earlier era when the paths of the U.S. and U.N. were not seen to be so divergent. President Truman who spoke in June 1945 at the conference at which the U.N. was established, had greater aspirations than to see another "splendid place to talk" set up on the East River:

"You have created a great instrument for peace and security and human progress in the world. The world must now use it! If we fail to use it, we shall betray all those who have died in order that we might meet here in freedom and safety to create it. If we seek to use it selfishly—for the advantage of any one nation or any small group of nations—we shall be equally guilty of that betrayal."

Wedgwood: 12/3/04, 04:20 PM
The High Level Panel has gone beyond prior reform efforts in a number of its forthright conclusions. For example, the panel is unabashed in saying that the U.N. Human Rights Commission is broken. States join the Geneva-based commission "not to strengthen human rights but to protect themselves against criticism or to criticize others," notes the panel. The six-week spring meetings serve as a stage for hurling brickbats against political opponents, rather than discussing ways to support the institutional assistance and reform needed in many countries. The Commission appoints special rapporteurs without adequate funding or support (typically allocating travel funds for one mission per year, with no dedicated staff). Commission meetings in Geneva should be more than a raucus conversation.

The High Level Panel also frankly admits that the United Nations' Economic and Social Council has little left on its plate. Finance and trade questions have migrated to the World Bank, IMF, WTO, G8, and other venues. There is an urgent need for real oversight of specialized agencies—it's a pity that the U.N. system has no equivalent to Congressional oversight hearings to challenge and monitor how important operational agencies are carrying out their tasks. Journalists rarely cover such issues, and agencies can decline in quality in a distressing free-fall. (See, for example, the current leadership problems in the Office of the High Commissioner for Refugees.) But that feedback loop and oversight has never been provided by ECOSOC.

It is doubtful that one should invent placeholder tasks for ECOSOC, rather than scaling it back. The Panel suggests that ECOSOC should "use its powers to commission research and develop better understanding about the economic and social threats to peace." But as the Panel itself notes, at the present time the bulk of U.N. staff are engaged in functions that lie outside the organization's central political and security functions. Only 6 percent of U.N. staff can be used for the crucial tasks of political "mediation, the organization and management of peacekeeping operations, support for the Security Council,
disarmament, elections support and sanctions." The General Assembly uses techniques of micro-management (including the snares of the little-known ACABQ—the Advisory Committee on Administrative and Budget Questions) to keep the Secretary-General from reallocating personnel. By all means, give the Secretary-General more flexibility in using his staff. The intellectual tasks of social science can be left to independent institutions, rather than ECOSOC.

If the High Level panel has an extended life, there is one elephant in the garden that needs further attention. The U.N. system needs to strengthen the Inspector General function, both in its investigative powers and scope of jurisdiction. Saddam Hussein's abuse of the Oil-for-Ford program makes clear that one cannot just trust to hope, in assuring program integrity. Multilateral economic sanctions have been an important tool in enforcing Security Council mandates. But kickbacks on approved humanitarian transactions allow a target regime to make a mockery of the Council's mandate. The issue goes beyond the role of any particular individual or office. Indeed, the Security Council itself has failed to structure the sanctions review committees to provide the necessary level of scrutiny in covered transactions, and subcontracting the function to a Swiss firm has apparently not worked well (though we will all read the Volcker Report with great interest). The amount of money at stake dwarfs the U.N.'s regular budget.

In the 1990s, during a prior bout of reform, the U.N. finally adopted a limited Inspector General system, put in place by a former director of the German foreign service. (To tone down the name, the group was called the Office of Internal Oversight Services.) Since that time, despite political pressures, it has done yeoman's work in auditing regular U.N. functions, and there needs to be a similar invention for sanctions regimes. Indeed, there should be an inspector general appointed for all U.N. agencies, including peacekeeping and other field missions. Rules on financial disclosure for U.N. personnel should be reviewed and strengthened. And the Secretary-General must assure vigorous leadership in terminating officials who do not fulfill their functions. The old days of "promote and transfer" should be gone.

An international organization, like any other, has to be reinvented from time to time, from within or from without. This takes imaginative leadership, and the ability to figure out what functions are crucial, and what the organization is particularly good at. The current international environment is far different from 1945. The United Nations began as a shared pledge to seek the unconditional surrender of the fascist states, and afterwards, became a vehicle for extending the cooperation of the wartime allies and superintending the road to independence of former colonies. There is clearly work to be done in a host of areas, including disease control, human rights, and promoting democratic governance.

But the architecture of the international sphere is more complicated now, and more competitive. Regional and sub-regional organizations also claim to speak for their member states. Peacekeeping and mediation are undertaken by regional and sub-regional groups, as well as the United Nations. The OSCE and regional human rights bodies make normative demands on states. One cannot assume that a centralized architecture is always the best way to proceed. There are virtues in a "competitive multilateralism"—each organization needs to be effective and forthright in order to inspire the support of its constituents.

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