P5

Justice, Security and Rule of Law: How the United Nations Security Council Has Failed You

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By:  Cynthia M. Lardner

In today’s turbulent world “…three core themes come to the fore: justice, security, and rule of law,” stated Dr. Abi Williams, President of The Hague Institute for Global Justice, who has previously served under United Nations Secretary Generals Kofi Annan and Ban Ki-moon.

When it comes to global justice, security and Rule of Law, the United Nations (U.N.) is the international organization that the world relies upon.  The U.N. was created in 1945 to restore world order after World War II and to “save succeeding generations from the scourge of war”.  On July 12, 2016 an issue arose challenging the U.N.’s ability to fulfill its essential purpose.

On July 12, 2016 the Permanent Court of Arbitration (PCA) in The Hague issued an opinion in a territorial dispute between People’s Republic of China and the Philippines, commonly referred to as the South China Sea (SCS) Dispute. The sweeping opinion found in favor of the Philippines ruling that China, which had boycotted the proceedings calling them illegal, violated the United Nations Convention on the Law of the Sea (UNCLOS); an agreement about territorial seas and exclusive economic zones (EEZ), in claiming sovereignty over the 80% of the SCS, known as the “nine-dash line”, encompassing almost 80% of the SCS. China has militarized the region rich in natural gas deposits.

The PCA held that:

Having found that certain areas are within the exclusive economic zone of the Philippines, the Tribunal found that China had violated the Philippines’ sovereign rights in its exclusive economic zone by (a) interfering with Philippine fishing and petroleum exploration, (b) constructing artificial islands and (c) failing to prevent Chinese fishermen from fishing in the zone. The Tribunal also held that fishermen from the Philippines (like those from China) had traditional fishing rights at Scarborough Shoal and that China had interfered with these rights in restricting access. The Tribunal further held that Chinese law enforcement vessels had unlawfully created a serious risk of collision when they physically obstructed Philippine vessels.

In advance of the decision, China stated that it would not honor the PCA decision; a tribunal to which it is a member nation. As the PCA has no enforcement authority, enforcement falls on the United Nations Security Council (UNSC).

The conundrum is that China is also a permanent member of the UNSC, which can veto UNSC enforcement of PCA decisions.  Rather that upholding its obligation as a permanent member of the UNSC to honor international law, China, in advance of the opinion, stated it will go to war to protect the “nine-dash line” region, leaving enforcement to the smaller nations in the region and their allies.

This calls into question whether China can ethically maintain its position on the UNSC.

This paper analyzes whether not only China but, also the Russian Federation should be permitted the ongoing privilege of sitting as an UNSC permanent member. As Sir Winston Churchill said, “Where there is great power there is great responsibility.”  Russia and China have failed in their responsibility to the other 191 member nations of the U.N.

United Nations Security Council’s Permanent Five

Created by the Rome Statute, to which all 193 U.N. member nations are signatories, the U.N.’s mission, as articulated in its Charter is:

“To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”

The U.N. General Assembly, via the U.N. Charter, delegated the sole responsibility for maintaining international peace and security to the United Nations Security Council (UNSC).

The UNSC is comprised of five permanent member nations, and ten rotating member nations elected by the five permanent members to staggered two-year terms.  At the time of its creation, the world’s five greatest superpowers were afforded the privilege of serving as permanent UNSC members:  the United States, the United Kingdom, France, the Russia and China (P5).  There is no provision in the U.N. Charter requiring that designation as a UNSC permanent member ever be reviewed or revisited.

The UNSC is responsible for authorizing U.N. peacekeeping operations.  Chapter VII of U.N. Charter authorizes the UNSC to deploy U.N. peacekeeping operations, including joint operations with allied forces and NATO, into volatile post-conflict settings where the state is unable to maintain security and public order.  Invocation of Chapter VII denotes a legal basis for taking action, and “…is viewed as a statement of firm political resolve reminding the parties to a conflict and the wider U.N. membership of their obligation to honor UNSC decisions.”  Security Council Resolution 1674, adopted on 28 April 2006, requires the UNSC to proactively protect civilians in an armed conflict, including taking action against genocide, war crimes, ethnic cleansing, and crimes against humanity

The UNSC is also imbued with the singular responsibility for voting on U.N. member state applications, selecting the Secretary-General, and the creation and oversight of hybrid criminal courts.

The P5 have de facto control over the UNSC by virtue of their exclusive veto power over exercised when any permanent member casts a “negative” vote on not only “substantive” draft resolutions but as to what constitutes a substantive issue.

The veto power extends to the discretionary enforcement of decisions rendered by the U.N.’s International Court of Justice, which issues legal advisory opinions and hears cases involving crimes against humanity and war crimes, and the PCA.

China and Russia’s Abuses of P5 Power

The P5 has come under a great deal of criticism for failing to deliver justice, provide security, and adhere to Rule of Law, including its responsibility to protect (R2P) from statespersons, such Kofi Annan, the seventh U.N. Secretary-General and Nobel Laureate, former United States Secretary of State Madeleine Albright, and former Canadian Foreign Minister Dr. Lloyd Axworthy, calling into question whether the U.N. Charter needs to be amended.

The South China Sea Dispute

Along with the matter decided by the PCA, China has also been engaged in similar territorial SCS disputes with Malaysia, Vietnam, Brunei, Taiwan, and Indonesia.

It is incomprehensible that China, a P5 member, can flagrantly ignore not only the PCA’s decision, which is final and binding upon the parties, but also UNCLOS, the treaty governing territorial rights.  Rather, than adhere to international law, China is prepared to go to war with the U.S. and other countries over the SCS. Complicating the matter is the joint military build-up by China and Russia in the South China Sea.

An Article VII draft resolution as to the enforcement of the PCA opinion or peacekeeping operations in the SCS would be vetoed by China and Russia.  Given that NATO has already stated it will not become involved in the SCS Dispute, if armed conflict erupts, defense against China and, likely Russia, military superpowers, will be the responsibility of the smaller nations in the region, the United States, France and their allies.

“Only when everyone plays by the same rules can we avoid the mistakes of the past, like when countries challenged one another in contests of strength and will, with disastrous consequences for the region,” stated U.S. Defense Secretary Ash Carter.

Russia, Ukraine and the Crimean Peninsula

Russia’s relationship with NATO, its member nations, allies and partners deteriorated following Russia’s illegal annexation of the Crimean Peninsula and military aggressions in Ukraine.  On July 15, 2015, rather than abstain, Russia vetoed a resolution as to its illegal annexation of the Crimean Peninsula from Ukraine, shielding itself from accountability under international law.  Russia President Vladimir Putin recently stated that there will never be any diplomatic discussion of the annexation of the Crimean Peninsula.

Russia’s aggressions in Ukraine were to have been resolved by the September 5, 2014 Minsk Protocol, confirming Ukraine’s sovereignty, which was signed by Ukraine, Russia, the Donetsk People’s Republic, and the Lugansk People’s Republic.  Despite being called upon by the international community to implement the Minsk Protocol, including the G20 in April 2016, and at the February 2016 Munich Security Conference, Russia has refused.  As a P5 member, there will never be Article VII action to protect the Ukraine people from ongoing aggressions, including genocide, a war crime.

It is noteworthy that Russia, a P5 member, is not a member nation of the International Criminal Court under the Rome Statute, which prosecutes state actors for crimes against humanity, including genocide.

The Birth of Responsibility to Protect

Dr. Lloyd Axworthy, former Foreign Minister of Canada, cited the UNSC’s 1999 failure to act under Section VII in Kosovo based on Russia’s veto of U.N. peacekeeping troops to force the withdrawal of Yugoslav forces from Kosovo.  Dr. Axworthy stated that he and then U.S. Secretary of State Madeleine Albright were emotionally and morally sickened by the mass genocide in Kosovo.  Dr. Axworthy stated that he and then Secretary Albright asked themselves, “Could we stand by and let people be murdered?”

NATO intervened in what came to be known as “Madeleine’s War”.

As then President Bill Clinton stated, “”It’s to our advantage to have a Europe that is peaceful and prosperous. And there is the compelling humanitarian case: if the U.S. walks away from an atrocity like this where we can have an impact, then these types of situations will spread. The world is full of ethnic struggles, from Ireland to the Middle East to the Balkans. If we can convince people to bridge these tensions, we’ve served our interests as well as our values.”

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Dr. Lloyd Axworthy speaking at The Hague Institute for Global Justice on July 12, 2016

This Kosovo incident gave rise to the concept of Responsibility to Protect (R2P) under which “We [humanity] must be prepared to stop mass atrocities” and where sovereignty is “…not a divine right but an obligation to protect your people,” stated Dr. Axworthy during a July 12, 2016 talk on “Pursuing Justice in a Globalized World:  Reflections on the Commitment of Madeleine K. Albright”.

Since the war, Kosovo has been unable to secure U.N. member state status based on Russia’s veto.

Responsibility to Protect

R2P was later adopted by the U.N. obligating the international community, including the UNSC to prevent and protect individuals from genocide, war crimes, crimes against humanity and ethnic cleansing. Yet, both China and Russia have and are engaged in genocide and ethnic cleansing; with Russia focused on Jewish populations and China on Tibet.

Russia and China’s Recent P5 Vetoes

At a time when Dr. Axworthy noted that “…human rights in a position of limbo,” Rule of Law has been increasing ignored by the UNSC.

There have been many instances of Russia and China misusing their UNSC veto power in contravention of international law:

  • On June 15, 2009, Russia vetoed action concerning its 2008 Georgian invasion, which culminated in a March 18, 200 treaty on alliance and integration signed between the South Ossetia region of Georgia and Russia on 18 March. This so-called treaty is yet another move by the Russian Federation that hampers ongoing efforts by the international community to strengthen security and stability in the region.  It violates Georgia’s sovereignty and territorial integrity and blatantly contradicts the principles of international law;
  • Between 2012 and 2014, Russia and China have double vetoed four draft U.N. resolution concerning the crisis in Syria, including a referral to the International Criminal Court and the imposition of U.N. sanctions;
  • On July 8, 2015, Russia vetoed taking action with respect to the genocide that occurred in Bosnia and Herzegovina in clear contravention of Security Council Resolution 1674; and
  • Russia vetoed a referral to the International Criminal Court to hold those state actors accountable for having shot down Malaysian Airlines Flight No. MH17 on July 17, 2014.

The U.S. has also used its UNSC veto power in the past, primarily to block resolutions concerning Israel.  However, this is unlikely to reoccur as during 2015 the Obama Administration’s foreign policy position as Israel and Palestine underwent a drastic shift away from favoring Israel.  The U.K. and France have never used their veto power.

“A security council that is fractured into special national interests, abusing the right of the veto; warlords and dictators who kill with impunity to advance their greed for riches or power; and the weakening of resolve in North America and Europe to act in a collective manner, and thus far a confused set of objectives by the emerging states. As Kofi Annan clearly concludes, our level of governance is not up to the task posed by world realities,” stated Dr. Axworthy.

No nation should be allowed to sit on the United Nations Security Council, let alone be afforded permanent status, if it fails to adhere to Rule of Law, minimally, international law.

Selection of the Next Secretary-General

With Secretary-General Ban Ki-moon’s second term set to expire, the selection process by the UNSC has also been sharply criticized. “The selection of the Secretary-General has previously been a process shrouded in secrecy, and, ultimately, decision-making lies under the almost complete control of the five permanent members” stated Tom Brookes, Programme Office at The Elders Foundation.  While the current selection process has involved an open debate between ten of the 12 individuals under consideration, it has no impact on the selection process.

Hybrid Courts

The UNSC has failed to convene, offer oversight and provide funding of hybrid criminal courts, i.e. courts created to address war crimes or crimes against humanity in any given country. By way of example, according to Ambassador David John Scheffer, the UNSC has not funded The Extraordinary Chambers in the Courts of Cambodia, commonly known as the Cambodia Tribunal or Khmer Rouge Tribunal, which is relegated to raising funds to cover its annual $3 million operating budget, with funding coming primarily from the U.S.

By the Numbers

In addition to flagrant misuse of their P5 veto power, there are three indices three global indices measuring positive and negative peace, corruption and adherence to Rule of Law which statistically support the restructuring UNSC.

First is the 2016 Global Peace Index, issued by Institute for Economics and Peace (IEP), which empirically ranked 175 independent states and territories based on their levels of peacefulness.  Peacefulness is measured based on two primary components: positive peace or resilience, and negative peace, defined as the presence of violence or fear of violence.  Overall scores are normed on the basis of one to five.

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Camilla Schippa speaking on June 24, 2016 at The Hague Institute for Global Justice on the GPI

“We see peace as a measure of conflicts.  And the Global Peace Index found an overall increase in conflict with a widening gap between the most and least peaceful countries,” stated Camilla Schippa, IEP Director of Operations.

The cost to humanity is mindboggling.  Violence costs 13.3% of the world’s GDP or $13.6 trillion dollars.  This breaks down to $1,876 annually or $5.00 per person every single day.

Second, Transparency International’s 2015 Corruption Perception Index (CPI) measures perceived levels of public sector corruption in 167 countries.  The four areas measured are bribery, corruption, whistleblowing, and Rule of Law.  The CPI defines Rule of Law as the, “Legal and political systems, structures and practices that condition a government’s actions to protect citizens’ rights and liberties, maintain law and order, and encourage the effective functioning of the country.”

CPI.2015

“The 2015 Corruption Perceptions Index clearly shows that corruption remains a blight around the world.” stated José Ugaz, Chair of Transparency International.

Third is the World Justice Project’s (WJP) 2015 Rule of Law Index® (RLI). According to the WJP, “The rule of law is the foundation for communities of peace, opportunity, and equity—underpinning development, accountable government, and respect for fundamental rights.”  The RLI provides original, impartial data on how the Rule of Law is experienced by the general public in 102 countries. The RLI measures nine variables — constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil and criminal justice, informal justice – generating an overall score ranging from .35 to .87.

Russian Federation

Russia’s overall GPI Score was the lowest of the P5: 3.079/5, ranking it 151 out of 163, or in the bottom 10 percent of the countries evaluated. Russia also performed the worst out of the P5 on the CPI, ranking a meager 29 or 119/168.  Thus, it is no surprise that Russia also had the worst P5 score on the RLI:  .47 overall, placing it near the bottom quartile, or 75th out of the 102 nations.

People’s Republic of China

On the GPI, China ranked 120 out of 163, with an overall GPI of 2.288/5.  China also performed poorly on the CPI, ranking 37 or 83/168.  China also fared poorly on the RLI, having a composite score of .48, ranking it 71.

The United States

On the GPI, the U.S. ranked 103 out of 163 nations, with a composite score of 2.154/5.  According to Ms. Schippa, the U.S.’s score was negatively impacted by the number of incarcerated individuals and access to firearms, required, to date, by the Second Amendment to the U.S. Constitution.  The U.S. ranked 76 or 16/168 on the CPI, with its score having steadily improved over the last four years. On the RLI, the U.S.’s composite score was .73 ranking it 13th out of the 102 countries measured.

United Kingdom

On the GPI, the U.K. ranked 47 out of 163, having generated a composite score of 1.830/5.  The U.K.’s CPI was 81 or 10/168.  Great Britain fared well on the RLI, with an overall score of .78 ranking it 12th.

France

France ranked 46 out of the 163 nations measured by the GPI, with an overall score of 1.829/5. On the CPI, France ranked 70 or 23/168.  On the RLI, France’s overall score was .74, placing it 18 out of 102 countries.

The Call for Reform

Kofi Annan astutely reflected that:

Where we collectively realize that we do not live in a zero-sum world where someone’s gain automatically comes at another’s expense. I envision a world where these values are supported by an international architecture, a modernized United Nations that reflects the changing balance of global power brought about by the rise of China, Brazil, India, South Africa, and other emerging countries.

But above all, of a United Nations that serves not only states but foremost peoples — and becomes the forum where governments are held accountable for their behavior toward their own citizens. A forum where the shared values of pluralism, tolerance, solidarity, democracy and dialogue triumph over unilateralism, ultra-nationalism, and over the politics of identity…

You may argue that this is a pipe-dream, that around the world, personal liberty, human rights, and democracy are being eroded — even in countries that have embraced democratic ideals. Let us renew and strengthen this international system. From epidemics to climate change, we need to set our narrow self-interests aside and realize that we are in this world together, for better or for worse. Hitting each other on the head has not done us much good in the past. It is time to move beyond that, to embrace our common humanity and resume our journey towards a fairer, more peaceful world.

Mr. Annan concluded that, “A United Nations for the twenty-first century would have to create new partnerships, respond to the needs of the individuals and stand for the principle that national sovereignty could never be used as a shield for genocide or a gross violation of human rights.”

“Yet the Security Council, which has primary responsibility for the maintenance of international peace and security, acting on behalf of all the member states, is still dominated by the same five permanent members that were designated all those years ago, being the five great powers that had just won the war. The governments of those five powers have become so used to their exalted status, which is protected by their ability to veto any change in the Charter, that they think of it almost as their natural right, sometimes forgetting that it is above all a responsibility. They assume that the world will continue to respect their authority, and fail to notice that, year by year, that authority is eroding,” stated a release issued by The Elders, a group of former statespersons who comprise a nonpartisan peacekeeping group.

As a result of the criticisms from around the globe, they have been numerous statespersons, commissions and entities calling for reform of the U.N., particularly the UNSC.  For instance, the 14-member Commission on Global Security, Justice, and Governance Commission convened by The Hague Center for Global Justice consisting of numerous ex-foreign ministers adamantly called for U.N. reform citing a “crisis in global governance.”

The Commission’s findings, “Confronting the Crisis of Global Governance”, was launched at the Peace Palace in The Hague on 16 June 2016. Commission Co-Chairs Secretary Albright and Ibrahim Gambari, former Nigerian Foreign Minister and UN Under-Secretary-General.  The Commission called for “…an expansion in Security Council membership and better engagement with nontraditional actors. Specifically, it seeks to create more opportunities for countries, regional organizations, local authorities, and business and civil society groups to contribute to peacemaking, peacekeeping, and peace-building while, at the same time, increasing the council’s representative legitimacy and restraint in the use of the veto, particularly when a state fails in its responsibility to protect its own citizens.”

Secretary Albright warned that continuing failures within the U.N. “risks prolonging and deepening” global crises.

At the launch of the ‘Strengthening the U.N.’ initiative at the 2015 Munich Security Conference, The Elders proposed a model for expanding the UNSC, that the P5 agree a code of conduct on veto restraint, and argued that the UNSC provide greater opportunity for civil society groups to be heard through greater use of informal “Arria formula” meetings.  Arria formula meetings are informal, confidential gatherings which enabling the UNSC to have a frank and private exchange of views, within a flexible procedural framework, with individuals, groups or nations outside of the UNSC.

Another group, Uniting for Consensus (UfC), comprised of 111 of the U.N.’s 193 member states, mission is to increase the number of non-permanent UNSC members, from the existing ten rotating seats, to a composition and number reflecting greater regional representation.  In a March 26, 2015 press release the UfC stated:

[W]e could support a UNSC of up to 26 members in total – a Council that is more representative of the international community as a whole while preserving the principles of democracy and accountability to Member States. The legitimacy of the Council depends not only – or even primarily – on its composition, but on its transparency, accountability and effectiveness. It is not just about who takes decisions, but most importantly the inclusive and democratic nature of decision-making.

In 2014, Secretary-General Ban Ki-moon established a 17-member independent panel on U.N. Peace Operations to comprehensively assess the state of current and emerging UN peace operations.  The panel issued 104 page report, containing detailed and voluminous recommendations for change:

At the heart of …peace operations is the message that the United Nations must unite its strengths — of politics, of partnership and of people — to meet those challenges. This means that, where deployed, United Nations peace operations must be mandated and empowered to support the political resolution of threats to international peace and security. To succeed, United Nations peace operations must find a way to strengthen partnership at all levels, namely with regional organizations, with host Governments and with the local population, to overcome deep-rooted conflicts. United Nations peace operations must answer to “We the peoples”, the ultimate beneficiaries of peace and the survivors of conflict. Their perceptions and their assessments, particularly those of women and youth, are the critical barometer of the success, or failure, of United Nations peace operations.

The panel concluded that the U.N. requires “modernized approaches and structures to enable flexible and better United Nations system responses.”  However, the panel failed to state the structures and approaches to which it was referring.  As all substantive action of the U.N. requires UNSC approval, it can only be assumed that the panel was indirectly criticizing the UNSC.

Changes Supported by Sustainable Development Goal 16

On September 25, 2015, the U.N. General Assembly adopted the 2030 Agenda for Sustainable Development, which include 17 Global Goals.  Secretary-General Ban Ki-moon hailed the move as a universal, integrated and transformative vision for a better world.  The new agenda is a promise by U.N. leaders to all people everywhere.

Sustainable Development Goal (SDG) 16, “Peace, Justice and Strong Institutions”, adopted to “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and to build effective, accountable and inclusive institutions at all levels.”

SDG 16 has been broken down to eleven measurable targets. SDG 16.3 is promote Rule of Law at the national and international levels and ensure equal access to justice for all.  SDG 16.6 requires the development of “effective, accountable and transparent institutions at all levels.” This includes, under SDG 16.7, an increase in decision-making at all levels which is responsive, inclusive, participatory and representative, which is tied to SDG 16.8, which seeks to broaden and strengthen participation by developing countries in global governance.  Also relevant is SDG 16.10, which is promote fundamental freedoms in accordance with national legislation and international agreements.

In 2004, then Secretary-General Kofi Annan stressed that for the U.N. Rule of Law is “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires as well measures to ensure adherence to the principles of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness, and procedural and legal transparency”.

SDG 16 cannot be achieved without amending the U.N. Charter to change the powers vested in the UNSC, and the increasing the number of UNSC members, to insure greater regional representation, or even eliminate the P5 or the UNSC in its entirety.

Amending the U.N. Charter

“A true United Nations would rise above the interests of individual countries. It would place the good of the planet and its people above the good of governments. The organization now based in New York cannot do this. Perhaps no world body ever will,” stated Stephen Kinzer, senior fellow at the Watson Institute for International Studies at Brown University.

The path to a true U.N., involves amending the U.N. Charter.  Following a conference, this requires a majority vote by the General Assembly and a vote by any seven UNSC members.  Despite all of the criticism, there has yet to be a call for a conference to amend the U.N. Charter. There has never been a better time than now for the General Assembly to come together and act to amend the U.N. Charter to insure justice, security, and rule of law for generations to come.

About the Author

Cynthia M. Lardner is a journalist focusing on geopolitics.  Ms. Lardner is a contributing editor for Tuck Magazine and E – The Magazine for Today’s Executive Female Executive, and her blogs are read in over 37 countries.  As a thought leader in the area of foreign policy, her philosophy is to collectively influence conscious global thinking. Ms. Lardner holds degrees in journalism, law, and counseling psychology.

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