Re: Security council veto (was Re: would you vote for this man?)

From: Brett Paatsch (bpaatsch@bigpond.net.au)
Date: Sat Aug 30 2003 - 23:07:51 MDT

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    Jeff Davis writes:
    > If a permanent member of the security council commits
    > acts which others see as justifying a charter-authorized
    > military response, and the appropriate protocol is
    > implemented so as to effect such military response, is
    > there any way for the UN to get around the veto power
    > of the offending member?

    There is *no* charter-authorised military response against
    a veto holding permanent security council member *unless*
    that country does not exercise its veto in its own defence.

    It would be effectively impossible under the UN charter
    to invade any of the big 5 as they would veto it. Any
    invasion even legitimate (morally) would break the charter.
    (Please note I am not saying that there are no circumstances
    where the Charter should not be revoked. Indeed I think
    any country could (with morality and honor) unilaterally
    withdraw from the Charter if they stated that in their view
    the UN was unable to achieve its purpose under article 1
    which is to maintain international peace and security.
    - but that is a personal opinion based on logic and philosophy
    not law.) There is no higher international law than the UN
    charter where it has jurisdiction (which is *not* everywhere,
    eg. it does not have jurisdiction in domestic matters -such
    as stonings), the signatories to the charter itself agreed to
    this in the charter.
     
    > Or to put it another way, does the law not apply (as in
    > "above the law") to permanent members of the UNSC
    > council?

    Not in the conventional sense. The UNSC is the highest
    authority in UN. It is the force behind the UN and behind
    the UN World Court. There is no action that can be taken
    against a UNSC member veto and still be a legitimate UN
    action. Period. That is the strength and perhaps the
    weakness of the UN as it is currently configured by its
    present Charter.

    Its a strength because its disperses the power of the UN
    across 5 strong countries rather than just say one or two.
    If China, Russia, the UK, the US, and France are in agreement
    that's not a bad indication that something is geneuinely widely
    supported in the world community and that was the case
    with resolution 1441 relating to Iraq.

    Its a weakness because when any of these 5 are themselves
    playing up or violating the charter there is no mechanism
    within the charter to expell them (because they can veto
    their expulsion) and there is no force that can be legally
    assembled to oppose them (as they would of course
    veto the formulation of such a force). Much of the
    historic disastisfaction with the UN and its preceived
    inconsistencies go back to that much misunderstood
    veto power of the big 5. The 5 victors of WW11.

    > One possible work-around that comes to mind is that
    > any act of such nature as to justify military
    > "correction" by the UN would likely also be a charter
    > violation, and as such 'nullify' a state's
    > membership/voting privileges.

    Not clear what you mean here. Under article 51 any
    country can defend itself against aggression until such
    time as the UN gets involved. On this basis the pursuit
    of the September 11 terrorists into Afghanistan would
    have been lawful in my opinion though a bit of a stretch.

    And the UN may not get involved if one of the UNSC
    members vetos involvement.

    What made 1441 special was the US a permanent member
    got the UN involved with Iraq and thereby waived any
    right it might have to attack Iraq on exactly the same
    grounds as the UN was considering action against Iraq.
    The US, in my opinion, tried to do the right thing and
    breath life into the UNSC and act lawfully. But in doing
    so they went where they had never been before. They
    put themselves, and their sovereignty in respect to one
    particular domain under the UNSC voluntarily. Then they
    stepped out when they didn't like the outcome. The stepping
    out was unprecedented. A fabric of legal nonsense was
    erected to try and avoid the perception that the stepping
    out and acting without UNSC approval was not a breach.
    It was a breach. But the breach ironically would not have
    been a breach (or at least not a breach of such serious and
    unprecedented consequences - a charter breaker if you will)
    had the US not at some point been genuinely trying in good
    faith to breath life into the UN. There is some tragedy there
    (and for the US as well). The diplomatic failure was avoidable.
    Simple, but serious human error, (Bush's), at the highest level,
    not malice in my view, brought about the current dispensation
    where all international law is farce.

    Regards,
    Brett Paatsch

      



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