Legitimacy of Power

The Permanence of Five in the Security Council

Dilip Sinha

• Publisher: VIJ Books (India) Pty Ltd
• Year: 2018
• ISBN:
  9789388161053
• Edition: 1
• Topic: Politik & Internationale Beziehungen
• Subtopic: Politik

"The Security Council, the all-powerful UN body for maintaining world peace, remains mired in its World War II origins. The victors, the US, Russia, China, Britain, and France, continue to control it with their permanent membership and the veto. Their confrontations emasculated the Council during the Cold War and their cooperation spawned questionable military actions thereafter. The book traces the origins of international security cooperation and scrutinizes the moorings of the Security Council's powers in international law. It critiques the permanent five's manipulation of the Council to aggressively strengthen their global dominance and legitimise their exercise of power. Their doctrines and actions in countries like Iraq, Yugoslavia, and Libya have hindered the Council's evolution as a responsible body which has the trust of a globalising world. This book is an essential read for practitioners and scholars to understand the Security Council and the failure to reform it. "

1 Collective Security

The United Nations was created as a collective defence organisation against the enemies of the Second World War. It evolved over time into a collective security organisation. Though collective security is now considered an essential element of international cooperation, it is a new concept in international relations. War has been accepted as a legitimate instrument of state policy and empire-building considered the best guarantee of security. This chapter deals with the rise of nation-states, their wars of national aggrandisement, the struggle to delegitimise war and to bring sovereign states within the purview of international law, voluntarily created by them to regulate their own sovereignty.

The fifteen members of the world’s most powerful international body sit around a horseshoe-shaped table in the United Nations in New York. They sit in alphabetical order as per the name of their country in English. Seating revolves anti-clockwise every month and the country at the head of the table officiates as president. Every year, the term of five members expires but they cannot seek immediate re-election. Another five are elected by the UN General Assembly, giving each elected member a term of two years.

The remaining five get to stay there permanently, circumambulating the table without a break since 1946. These are the permanent five, the P-5, as they are called in UN jargon: the United States, the United Kingdom of Great Britain and Northern Ireland, France, the Russian Federation and the People’s Republic of China.¹ They are there because they led the military alliance against Germany, Italy and Japan in the Second World War (1939 – 1945).

This is the Security Council of the United Nations, the only international body that can take or authorise the use of military force against a country, whether a member of the United Nations or not. Under the UN Charter, all member states of the United Nations have agreed to give this authority to the Security Council and to accept and carry out its decisions.

The United Nations was formed in 1945, initially by the governments of 51 countries which had fought the Second World War as allies.² It was the second general security international organisation attempted in the world. The first, the League of Nations, formed after the First World War, had collapsed within two decades of its formation. The United Nations has avoided that fate. Today, it has 193 member states, covering almost the entire world, except Taiwan, whose membership is blocked by the People’s Republic of China. The Security Council is only one of the six organs of the United Nations but constitutes its core, its raison d’être.

The Second World War was the most devastating war in human history. It came barely two decades after the previous most devastating war, the First World War, and reinforced the determination of its victors not to repeat the mistakes made after the first. The preamble to the UN Charter began with a penitent remembrance of the two tragedies and set the goal of the organisation in its very first sentence, “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind”. This was a much more direct and forthright statement of intent than the one expounded in the Covenant of the League of Nations. The League’s preamble had given primacy to international cooperation over international peace and security. The priority for the founders of the UN was security from the enemy states and they wanted to create an organisation which could take effective military action to protect and enforce the peace. The Security Council was the organ charged with this responsibility.

International law and organisations are now recognised as the legitimate means for maintaining international security, and even states resorting to brute force invoke them to validate their actions. But this is a very recent phenomenon in international relations. War has been universally accepted through history as a lawful instrument of state policy. Annihilating the enemy was considered the best guarantee for peace. Even wars waged for the sole purpose of acquiring more territory were considered legitimate. Invading other kingdoms was the right of a king. War was glorified in ballads and epics and celebrated from generation to generation. Ambitious kings who annexed other kingdoms are still celebrated as great rulers. Empires are looked upon with awe and admiration as periods of peace and security and people still take pride in ancestors who subjugated other people. Empires were believed to provide better security than small kingdoms. The Indian political writer of the 4^th century BCE, Kautilya, took a dim view of small kingdoms and extolled the virtues of empire-building.³

Such glorification of imperial conquest could not but lead to a perpetual state of war. In some societies, religious institutions sought to exercise restraint on the monarch by positing ‘natural law’ derived from god above state law. This endeavour was particularly strong in Europe where the Pope and the Roman Catholic Church, whose claim to divine authority was stronger than that of kings, exercised significant power over them in the Holy Roman Empire. This was not a derogation from the belief in the superiority of empires. But the intrusion of religion in state politics proved to be highly divisive and became a perpetual cause for strife. The persistent sectarian wars in Europe, especially the ravages of the Thirty Years’ War (1618-1648), exposed the disruptive impact of religion and drove home the need for separating it from the state.

The disintegration of the Holy Roman Empire in Europe paved the way for states to be recognised as sovereign entities in international relations. Headed in the past by monarchs, most modern states are now republics. Monarchs claimed their authority as derived from their god and, therefore, absolute. They deployed political philosophers and religious leaders to sanctify their divine origins. The concept of sovereignty of the modern state, considered an essential attribute of it, is derived from similar dogmas but is now expressed in more legal terms. Abandoning god and religion as the source of state authority required a new political philosophy. The modern theory of state sovereignty, first expounded by the French jurist, Jean Bodin, in ‘The Republic’ in 1576, challenged the Pope’s claim to divine authority. Bodin defined sovereignty as the supreme power of the monarch unrestrained by the laws.

Bodin expounded his concept of sovereignty with the intention of establishing a legal basis for order in society. He maintained that an essential attribute of sovereignty is the power to make laws which apply to all but the sovereign. This doctrine of absolute power ensured that there could be no legal challenge to the authority of the sovereign, either by the church or jurists. The same idea was expressed in 1651 in the Leviathan by the English philosopher, Thomas Hobbes, who asserted that the sovereign makes the law and not the other way around. Hobbes argued that the sovereign is not subject to the authority of any earthly power. He is only constrained by the laws of nature, by which he meant not god’s laws but common sense. Thus, states would accept certain rules regarding the treatment of ambassadors or the conduct of war because they would expect similar conduct from other states. While Bodin declared that sovereignty in France was vested in the monarch, Hobbes believed that it could be in a person or a body or even a concept.

Modern international relations, at least since the Treaty of Westphalia, are based on the principle of the sovereign equality of nation-states.⁴ However, it was not until the nineteenth century that Europe abandoned its dream of a single political entity ruled by god-given ‘natural laws’ and sought to promote international security through cooperation among countries. With this emerged the modern states system and started the evolution of international law and organisations. Nardin places the origin of the states system in the eighteenth century since the earlier system was still inspired by the ideal of a unified Christendom or a universal secular empire, “It is only in the eighteenth century that the idea of a states system whose unity is provided by its own distinctive institutions – those of diplomacy, the balance of power, and international law – really emerges as an independent and fully articulated conception of the character of European international society.”⁵

The concept of sovereignty enabled nation-states to interact as equals, regardless of size, and to claim the right of non-interference in their internal affairs. This was expressed succinctly by Hall, “A state has the right to live its life in its own way, so long as it keeps itself rigidly to itself, and refrains from interfering with the equal right of other states to live their life in the manner which commends itself to them…”⁶ Wolff also emphasised the equality of nations, “By nature all nations are equal the one to the other. For nations are considered as individual free persons living in a state of nature. Since by nature all men are equal, all nations too are equal.”⁷

The rise of nation-states, however, opened the gates for more international wars, this time propelled by intense nationalism among people seeking to unify their nations, acquiring colonies or recovering ancient glory. Yunker noted, “Modern history also seems to suggest that the sovereign nation-state system possesses a strong propensity toward the generation of hostility, conflict and warfare among nations.”⁸ The need was felt for developing norms of behaviour for states to reduce the prospects of and recourse to war.

Napoleon’s attempt to restore French glory after its defeat to Britain in the Seven Years’ War (1756 – 1763) led to a series of wars across Europe. After defeating him in 1815 in alliance with Russia, Austria and Prussia (which expanded later to become modern Germany), Britain formulated a policy of balance of power on the continent to prevent the rise of a power that could challenge it. This came to be accepted even by the kingdoms on the continent as preferable to a single dominant power. The dreams of a Roman Empire or a Holy Roman Empire were finally shelved in favour of multiplicity of equal states maintaining peace through cooperation. Countries started interacting more frequently with each other to resolve disputes and provide security to each other. International cooperation for collective security may seem commonplace today but it presented serious legal and practical challenges till the twentieth century. It not only required new legal concepts and principles but also new terminology. Sovereignty gave the state absolute authority, both internal and external. Circumscribing it through any form of international law became a legal conundrum.

Interstate, Intergovernmental or International?

The term ‘international’ has gained currency now and is applied to organisations and practices relating to the intercourse among sovereign states. It was coined by the English philosopher, Jeremy Bentham, in the context of the law of nations to distinguish it from national laws, such as the Common Law of England. This was as much a correction of the term in vogue in Europe at that time, droit des gens (law of nations), as an improved translation of it in English. The fact that droit des gens was inappropriate in the sense that it was not law made by or for nations for their internal affairs but for relations between or among them had been pointed out by other writers. Bentham sought to correct this by suggesting using ‘international’ for this genre of laws to distinguish it more sharply from the laws for the internal affairs of nations.⁹

The term, however, rather inappropriately presupposes the interchangeability of ‘nation’ and ‘state’, based on contemporary Europe. States, not nations, are the primary units of political organisation in the world, though there is a common notion that the two are co-terminus. Nation, derived from the Latin, nasci (to be born), started as a collective term for a people claiming common descent and, when organised as a sovereign territorial entity, called themselves a nation-state. It is now more expansively defined. Countries like the United States and India prefer to call their federating units states rather than provinces but regard themselves as single nations. The United Nations retained the League’s terminology even though the latter was essentially a European organisation and could more appropriately call itself an association of nations.

Contemporary international law and relations are inter-state, or more appropriately inter-government, in character. They have not yet acquired the attributes of a world government. Governments represent the member state and all its citizens in international organisations. Other associations formed by the people, such as non-government organisations, commonly referred to as civil society, are allowed participation in some international organisations, primarily in those dealing with social issues, but they are distinctly subordinate to governments.

The urge for human unity transcending social and state barriers goes back to the Upanishads in India and the Stoics in Greece and the dream of evolving a transnational world government will never die. But the intergovernmental character of international organisations will not change in the foreseeable future because the level of diversity, inequality and distrust in the world is too high for countries to compromise their national sovereignty for the comfort of a global system where their citizens, companies or civil society acquire independent global identities. Some transnational corporations and civil society enjoy powers far beyond that of many countries and are keen to acquire more, but governments are not likely to cede their position to them. The transition from international organisations to world government will take time.

International Law

How does norm-setting take place among modern states? How do sovereign states undertake obligations and why do they respect them even in the absence of an enforcing authority? For norm-setting to take place there must be a states system with considerable degree of homogeneity among its members, who share a sufficient level of commonal...