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Dr. Adnan Mahmutovic, PMU College of Law
Assistant professor, PMU
This October the 24th the United Nations celebrated the 75th anniversary. A duration of 75 years is not such a significantly long period for an international organisation to exist; however, if we take into account all that the UN have achieved so far, we cannot but give praise for their achievements. ‘United Nations’ as a coined term was first used by the United States President Franklin D. Roosevelt. As a name it was first mentioned in a legal document from 1942 – the document entitled Declaration by UN.
UN Charter: The Manifold Significance
The mission and activities implemented by the United Nations Organisation (UNO) are being harmonised with the principles and the spirit of its founding document, i.e. the Charter. The UN Charter is a solid normative structure comprising of 10,000 words, 111 articles divided into 19 chapters. Peace and security, justice, human dignity, tolerance, and solidarity, are the key words shining out of this document. This document defines the objectives and principles upon which the UN is founded, determines the structure and the ways in which this Organisation functions.
Nonetheless, the Charter’s significance is not exhausted only therein. The UN Charter is one of the most significant treaties of the international law in general. Its significance can be seen as ranking alongside the treaties such the Treaty of Tordesillas (1494), the Peace of Westphalia (1648), the Treaty of Paris (1783), the Congress of Vienna (1814–15) and the Treaty of Versailles (1919). The list of achievements accomplished thanks to the UN Charter. Here we can mention only the most noteworthy of them. The Charter has established the basic norms governing international relations, developed universal principles of what we call today the international ‘rule of law’ – such as sovereign equality, peaceful settlement of disputes, respect for the territorial integrity and political independence of all countries, non-interference in other country's domestic affairs, and the prohibition of the use of force. These norms and principles have created what international relations scholars call ‘international society’ where we come together as a community and share common values. The Charter is, therefore, a momentous document. Its contribution is manifest also beyond the confines of the legal realm. The Charter is a document which signified the turning point in the international relations.
The historical context in which the Charter was adopted is very interesting. Namely, on the 26th of June 1945 the representatives of 50 nations gathered in San Francisco to put their signature on this document. It is interesting to note it was for the first time in the history of mankind that together came the representatives of different nations, political systems, ideologies, cultures, races, religions, and countries at varied level of economic development. Despite the diversity encumbering them, the representatives of 50 nations mustered up the strength to make a step forward and establish a global platform for cooperation, dialogue, and joint activities to maintain the peace and security. One gets the impression that the victory of Allies in the World War II would not be complete without this compromise which sealed a number of international disputes.
Beyond The Charter
The UN Charter was surely an immense achievement but not the only one. Since its founding to date, the UN Organisation has adopted more than 60 multilateral agreements which established international norms and standards in various areas such as human rights, collective security, environmental protection, cooperation with non-governmental organisations and civil society, international maritime law, air traffic, postal system. In addition to the six principles bodies (the UN Security Council, the UN General Assembly, the Economic and Social Council (ECOSOC), the UN Secretariat, the International Court of Justice and the Trusteeship Council) which work to carry out the mission of the United Nations, the UN is executing numerous programmes and projects, including also the work of different agencies and funds, and specialised agencies to implement its activities. Through different support activities, these programmes and projects contributed to the process of decolonisation and establishment of governments in the former colonies, reduction of poverty, delivery of humanitarian aid, better quality education, development of awareness of the importance of human rights and liberties, and the fight against various diseases – particularly in Africa. It has become an important international development player, contributing to the process of globalisation by setting international standards and norms that have smoothed international cooperation.
Some Missions Have Failed
The list of UN achievements is indeed a long one. However, not all of the activities have been successfully realised. This is pertaining particularly to the UN peacekeeping missions. The UN missions in Rwanda and Bosnia have not prevented the genocides which happened there. Moreover, the UN cannot boast with the role of mediator in prolonged civil wars accompanied by humanitarian crises, such as in the conflict in Syria. Most recently, the UN Security Council has been challenged with mounting atrocities against the Rohingya ethnic group in Myanmar. The peace treaty between Russia, Armenia and Azerbaijan which was signed on the 9th of November 2020 created the conditions for a permanent resolution of the conflict in Nagorno-Karabakh, almost completely without any role played by the UN.
Right to Veto as a Privilege of a Great Power Oligarchy
In essence, the UN are favouring the principle of equality. The nations, whether they great or small, rich or poor, have the equal right to vote. Nonetheless, this rule applies only to the UN General Assembly. The situation is somewhat different in the most important of the six principles bodies of the UN: the Security Council. The five permanent and ten non-permanent members of the Security Council are by far the most powerful arm of the United Nations. This is because their decisions can have a legally binding character. The Security Council can decide to impose sanctions on individual states, as it did against Iran over its nuclear program, or even to approve a military intervention, as it did against Libya in 2011. What is particularly interesting when it comes to the Security Council is the right to block a decision which is given to all of the permanent members of the Security Council – popularly called the P5 veto power. The veto power has been used 291 times to date, often by Russia. Interestingly, the expression ‘veto’ is not mentioned in the Charter’s text. Veto as an expression is not part of the Charter’s language. Article 27(3) states that “(...) shall be made by an affirmative vote of nine members including the concurring votes of the permanent members (…)”. Veto power is the result of an agreement between the three great powers (USA, UK and USSR) which, after the World War II, acted like a private club. Later on, that club was joined also by France and China. Already, the so-called ‘Yalta formula’ has provided that P5 have the right to veto decisions on “substantive” matters but not on procedural questions. That means practically that the P5 cannot vote against a mere discussion of a controversy or dispute in the Security Council, but they can veto any draft resolution that resulted from that discussion.
Ultimately, if one of the major objectives of the UN Security Council is the collective security, then it is perfectly clear that the maintenance of collective security will depend completely on the P5. However, the right of a single nation to block action desired by the other members of the UN Security Council has been under fire for a long time. Small states are challenging the P5 veto power. On the other hand, most experts agree that, if the veto power cannot be eliminated, then at least its use should be limited, as its non-restrictive application could cause a failure of the Security Council to take up the responsibility in relation to the maintenance of collective security. Thus, we can agree that the P5veto power should not be used to block resolutions against destructive uses of atomic power, resolutions aimed at preventing genocide, crimes against humanity, or war crimes. This is because the use of veto power in that case could be in contradiction with the already established obligations arising from Article 24(2) of the UN Charter stating that “(…) the Security Council shall act in accordance with the Purposes and Principles of the United Nations(...)”, and also from the principle jus cogens status of the prohibitions of genocide, crimes against humanity and war crimes. So, it could be asserted that the legal basis for additional consultations in relation to the limitation of veto power has been to a certain degree established.
In conclusion, I would like to pose a few questions for pondering, which could also be considered a recommendation for the future development of the UNO.
If the UN Organisation is already committed to the gender parity strategy, then it should give thought to having more women in key positions within the Organisation in future. Namely, since the very beginning, the UN has had a total of 10 secretaries-general and they were all men; isn’t it now the time to change that?
Having in mind the fact that the Secretary-General of the UN acts in capacity of the chief administrative officer, yet many of his activities are informal, protocolary. Isn’t it time to give a greater significance to the secretary-general position so that he/she can act in the capacity of the power which would enable him/her to ‘make’ certain states, for example, adhere to the agreements from the treaties to which they gave their consent as a signatory party?
Isn’t it time, after the failures to prevent the genocides in Rwanda and Bosnia, to give serious consideration to the issue of the peacekeeping operations’ reforms with the aim to allow for greater guarantees of protection of civilians?
Isn’t it time to seriously take into account the requests for passing of amendments to the Charter in order to define the criteria and the responsibility of the P5 for the use of veto power?
However, regardless of the outcome of answers to these questions, we cannot but agree that the overall impression of the UN is very positive. Could we even imagine what the world would look like without the UN? As Madeleine Albright former Secretary of State has once said: “It has to evolve. It has evolved. It will need to continue to evolve. And if it didn't exist, we would invent it.”
14-Feb-2021
