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