|VOLUME 1|ISSUE 2|APRIL 2018|ISSN: 2581-3595|​

IS THE VETO POWER OF THE SECURITY COUNCIL MEMBERS KILLING THE SOVEREIGNTY OF STATES?

AUTHORED BY: MOHIT GARG, B.COM.LL.B (Hons), SCHOOL OF LAW, UPES, DEHRADUN.

ABSTRACT:

When the controversies take place between the States, the general public basically focuses on which authority to approach and against whom the decision has been delivered. And if the authority is not able to hold on to the controversies the public starts to criticize the authority to such extent that starts to find defaults in its mere inception.

Where the ICJ and the Security Council, the organs United Nations are the authorities to approach for seeking help as their the purpose of formation is look over the international disputes. UNO has received great importance over a period as the States as well as individuals truly rely on the working of the organs of UNO in the feasible application of international law.

The paper concerns:

Extent up to which the ICJ and the Security Council can act for the maintenance of peace and security being its primary aim of the UN.

Whether the special powers granted to the five permanent members in the Charter are provided with unlimited scope?

Can the five permanent members be subjected to the Article 3&4 of the Charter which talks about the suspension and expulsion of the member?

The five permanent members forms the composition of the Security Council and on default by any State affecting the international peace & security, the Council may take preventive measure but will happen if any of the five permanent members are at fault or in other words to whom these permanent member are accountable to?

The researchers have emphasized more on the exercise of veto power and instance use of force by the five permanent members and the other member of the UN

Introduction of International Law

Main features of International Law:

International Law includes those rule which governs the conduct of every States and the States feels themselves obligatory to observe these rule while acting in relation with the other States.

The sources of international law are custom grown up among the States; law making treaties; Judicial decisions of the international authorities that would include ICJ, International Tribunals like permanent Court of Arbitration; etc.

International law primarily regulates the relations between the States themselves and with the International Organizations as well as to some extent with the individuals.

International Law is not a law of Sovereign as stated by Austin, but between sovereign States. Meaning hereby is that in International Law no sovereign authority exists. But do you really that this thus so happens because the five permanent member of Security Council of UN do impliedly exercise their authority over the other state and affects the acts or participation of the States in their relationships with other States. Example is the recent act of China in the year 2017, by using veto power recalcitrared the membership of India in the Nuclear Supply Group (NSG).

In International Law the norms are been created by its subjects themselves through the States entering into agreements where essence is a concordance of the will of States or any other of its subjects. But some rules which are been derived from the international treaties or customs being ratified by most of the States, the States which are not signatory or haven’t ratified a rule but still is applicable on them just like the UN principles.

The fact that International Law is being obeyed because of it being the principle of State legislature, unlike the municipal law the reason it is been obeyed is the application of the principle of pactasuntservanda and as States finds themselves morally bound to follow International Law.

The subject matter of International Law has always remained dynamic which has been observed the expansion of the application of International Law.[1]

Presently, Due to the evolution the International Law consists of Court i.e. ICJ which binds the party with its decisions and on the failure of compliance of the same, the Security Council of UNO is authorized to take action on such default, if the aggrieved party seeks the help. Therefore, the existence of International Legislation i.e. Multilateral treaties and agreements, a sanctioning authority i.e. ICJ, enforcement machinery are development of present era. [2]

Subjects of International Law: Any entity possessing the international personality are called the international person or the subjects of International Law and deemed so if it is capable of possessing and maintaining the International Rights.[3]The theories by different jurists have led to the recognition of total three subjects of International Law.

Presently the followings are the subjects of International Law:

  1. States: According to the Realist Theory, States were the only subjects of International Law where the States are alone the bearer of the rights and obligation provided under International Law. Therefore the State was to be considered legally distinguishable from the individuals who formed it. Later it was been criticized.
  2. Individuals: According to the fictional theory, the individuals are the subjects of International Law, alike municipal law as the State is the composition of individual and have no capacity to form or express an autonomous will. Kelsen mentioned in his theory that the formation of International Law and the rights recognized thereof are for the individuals indirectly. And the States are the mere representatives of the individuals.[4]
  3. International Organizations: Though it is true that International Law confers the rights and duties primarily up on the States. But in the last 65 years, substantial changes have taken place. As there has the proliferation of some new participants in International Law. International Organizations, distinguishable from States, has also been endowed the rights and duties, alike the States. These Organizations performs some specific functions and are to be distinguished from the member States, who takes an initiative to form them.[5]

In the advisory opinion on the interpretation of the WHO-Egypt Agreement the International Court of Justice stated that: International Organizations are subjects of International Law and, as such are bound by any obligations incumbent upon them under general rules of International Law, under their Constitution or under International agreements to which they are parties.[6]

Therefore, the rights and duties possessed by the International Organization is either the result of the International Customary Rules or constitution of the International Convention.[7]

International Organizations:

In the beginning of the twentieth century, some the important conferences took place i.e. Hague Peace Conference of 1899 & 1907, which mainly focused on the development of the International Law and International Organizations as well. These conferences led to the formation of  ‘League of Nations’  in the year 1915 as the result of need for experiments of these conferences and the devastating effect of the 1st World War. The main objective of the formation of this International Organizations was to maintain peace and security and to promote international co-operation. And consisted of two principal organs that are: the Assembly and Council assisted by the permanent Secretariat.

But in the 2nd decade (1930-40), the League of Nations lost its value and failed to achieve the objective of its formation. There were many reasons behind its failure which included:

  • League did not forbid the war completely,
  • One of the great powers like America was not a member to the Convention because of the non-ratification by the senate,
  • Members were not bound by the decision of the council, etc.

Later, on the happening of the 2nd World War, people of every State felt the need for the establishment of some International Organization after observing the ruthless destruction. And after a long and heated deliberation the United Nations Organization came into existence and new court came into the existence i.e. International Court of Justice as a replacement to the PCIJ which was abolished in the year 1946.

United Nations Organization:

San Francisco Conference (1945), officially known as United Nations Conference on International Organization (UNCIO), which took place after happening of the other conferences concerning the same issue of the formation of UNO. This conference consisted of delegates of 50 nations for the ratification of the proposal. The session took place for two month in full sessions and the committee came up with the drafted Charter of 111 Articles. And was passed unanimously and was signed by all fifty representatives on 26, June, 1945. United Nations came into force after the ratification by the 29 of its signatory States including the five permanent members of the Security Council.[8]

Preamble: the preamble is preceded by the words ‘Charter of United Nations’. And further states that the Charter is a multilateral treaty, having certain special characteristics. The preamble of the charter shows the aims for the achievement of which the United Nations was formed:

  • To save succeeding generations from the scourge of war;
  • To re-affirm faith in the fundamental human rights;
  • To establish justice and the respect of international obligation; and
  • To promote social progress and better standard of life.

The preamble also provides the way in which these aims can be achieved i.e. United Nations to practice tolerance, to live in peace with neighbors; international cooperation in achieving the objective; non- use of force except when is needed for common interest; efforts by the international organization for the social and economic betterment of people. But UNO is not a super national organization like a federal government because in reality. UNO is an association of independent States. Therefore, it can do only what its members make it do.[9]

Purposes of the United Nations:

the United Nations provides for the purpose of the formation of the United Nations, which are as following:

  • To maintain international peace and security:

Security Council is responsible for fulfillment of this particular purpose of maintaining peace and security which is to be achieved by taking effective measure for suppression of breach of the peace or acts of aggression by taking effective collective measures against the member States as well as non-members States[10].

But the Security Council at time fails to do so as its members are the one of cause of instigating acts which is likely to endanger peace of one or the other nation. For example the China’s sponsored and supports many a time the acts of Pakistan which do at time affects the freedom and security of the people of Kashmir which is the part of Indian Territory.

  • To develop friendly relations with other Nations:

The nations are required to maintain friendly relations with the other nations to avoid conflict and relations are to be based on respect for the principle of equal rights and equal rights of self-determination of people.

But the UN Charter states in Article 2 that no Member State of the UN should assist any States against whom the Security Council takes enforcement action.

  • To achieve International Co-operation:

The UN Charter asks to maintain the international cooperation for:

  • Solving international disputes being in nature of economic, social, cultural or humanitarian character arisen among the States.
  • Promoting and encouraging respect for human rights and for fundamental freedom to which every individual is entitled.
  • To make the United Nations an International forum for harmonization:

This purpose proposes that the United Nations is the center for the harmonization of States actions in order to achieve common ends. And looking at the merits of this organization it is the representative of the entire international community.[11]

But in no case the United Nation can interfere in the matters essentially with in domestic jurisdiction of any States as mentioned under Article2(7) of the Charter but does not restricts the UN to take enforcement measure as mentioned in the Chapter VII of the Charter and upon the matter involving the colonial issues.[12]

Principles of the United Nations:

Article 2 of the Charter of the United Nations states the principles or in other word some obligations which are binding up on its member and the organization as whole. The principles are follows:

  • The principle of Sovereign Equality:

This principle provides that each of its members will be regarded as equal irrespective of their size and resources. But if we check the reality this principle is not been made applicable in its true sense as it is provided in the Charter as the Charter itself provides some special power and rights in the hands of the five permanent members which would their right to veto.

  • The principle of the fulfillment of obligations:

All the member are required to fulfill all of their obligations which are been passed on them by the Charter, in good faith. This principle is based on the international law’s principle of pactasuntservanda

  • The principle of peaceful settlement of International dispute:

All members are under the obligation to settle their disputes involving any other nation in a very peaceful manner and should not use any such way or means which is likely to endanger international peace, security and justice.

This principle has been overlooked by China by conducting its act in such a manner which reflected its use of force during the Doklam Standoff were the Chinese troops did entered the Bhutan’s territory and initiated the illegal extension of the road instead of resolving the issue by conducting a meeting between the involved States.

  • Principle of non-use of force:

Under this principle the Charter imposes a restraint upon its member on the use of force against the territorial integrity or political independence of any state, etc. in regard to its international relation with such states. But it has been noticed that the members of UN themselves use force.

The question that arises is whether the members of the United Nations are been really restrained in doing so and as to how UN would impose liability on the State at default and will the accountability of the five permanent members using force in the name of maintaining peace with ulterior motive?

The Security Council as well as the ICJ is of use at the times like this ICJ being a remedial forum becomes active if and only if all the parties to the dispute agree to resort to it otherwise, ICJ has not been provided by the power to take cognizance of the case SuoMotu. And same is the case with the Security Council that until and unless party seeks its help it can take no action that to also only in concern to the enforcement of decisions delivered by ICJ.

For Member States other than five permanent members, the consequences will be that they can suspended or expelled from its being member on UN but the Charter is silent for the situation where the 5 permanent members are at default and in reality they generally escape their liability by giving mere justifications.[13]

  • The principle of Assistance to the United Nations:

This principle lay down that no State should provide assistance to any State against which UN has initiated preventive and enforcement action. And the members are obliged to support the organization in any action initiated by it with accordance with the provisions of the Charter.

  • The principle of Non-member States:

This principle imposes the obligation on the UN to ensure that the acts of the non-member States is in synchronization with the other principles as far as the act does not endangers the maintenance of International peace and security. Thus, indirectly burdens the other states to conduct their activities keeping in view the compliance of the mentioned principle.

  • Principle of Non- intervention in Domestic matters of a State:

United Nations has been restricted to intervene in the domestic matters where the domestic courts have the jurisdiction to that matter (as explained in the purpose 4 of the UN).

Inter relation between ICJ and Security Council.

The drafters of UN charter it was clearly stated that whenever any advice on legal question required by the Security Council it can seek advice from the International court of justice. The international court of justice whenever required may give the advisory opinion one the legal matter. The Security Council while functioning and maintaining peace and security encountered any legal dispute between two countries then it can also refer it to the international court of justice. The international court of justice is basically a law protecting body of UN. But the Security Council is a body which indulges in social reforms and maintaining peace and security and most of the decision was made by themselves[14]. They have experts in ICJ who can give more satisfactory and helpful solution. But the Security Council members for their benefit didn’t refer matter to ICJ. Over the years the council and even the secretariat have largely avoid the ICJ from taking advantages and advice which will help in the objectives of the UN. The UN charter gives much discretionary power to Security Council in the form of veto and making of resolutions. From the formation of ICJ to till today the council failed to collect and get the expertise from the ICJ.[15]

The judges of the ICJ elected for the term of 9 year by the general assembly and Security Council from a list nominated by the national group of permanent court of arbitration[16]. Under the art 4-19 of ICJ statute the process of the election is given. The main point raised here is the role of Security Council in the appointment of judges. This power of appointment by a political organ for a judicial organ leads to misconception in the mind of the society. The permanent members take care of the election of the Security Council, general assembly and the secretariat also.

The intervention in the field of other organ is the misuse of the power. The UN charter is not maintaining the checks and balances in between the two organs. The Security Council is more powerful organ in the all of above. The permanent members of the Security Council have the veto which is widely used for beneficial purposes.[17]

Not every conflict should be presented in front of ICJ but the matter in which not only the legal conflict but also the economic, social and other conflicts are included then the ICJ can proceed to such matter and the Security Council or any other organ cannot intervene in it. The Security Council some time purposely passes the resolution which is beneficial for the countries and to avoid the proceedings of the ICJ.  The other big contradiction is that is a decision was given against the any of the permanent 5 members than such members in the reference to the Security Council can pass the resolution and can veto the decision of the ICJ. Separations of powers are their but the Security Council has more weightage than others.

Effect of this relation:

The effect of this relation is already assumed by the society. The intervention of the Security Council in the ICJ basically considered as the giving the power to permanent members. The independence of judiciary is there but the function of Security Council somewhere digging it. If the decision are formulating inside the council then the role of ICJ will end then and there.  If matters goes to ICJ than the countries have a chance to review it. if security council will seek the advice of the ICJ than the decision will become more successful and satisfactory. The aim of the maintained of peace and security will always prevail when the permanent members will take all other with them.

The UN charter gives more power to them but this does not mean that they will monopolize the organs. The current conflicts of these members are clearly stating that the UNO need to reform some of its provisions to control the Security Council and mainly the Big 5. The intervention in the ICJ can be judged as the intervention in the independence of the ICJ. If a permanent member can veto the decision of the ICJ then the quality is not served properly. This provision of UN charter gives very wide power to permanent members.

Syria Case: involves Russia, Iran, USA, UK, France, Turkey, Iraq, South Arabia

  • The war between Syria government and the rebellions is taking off to new rivalry. The Syrian president bashar al-Assad and his allies now taking help of chemical weapon to destroy the rebellions, which resulted in the damage to infrastructure and hospital and people dying in the number of amount. The Russia continuously supporting its ally Syria and striking by air in the territory. They directly not using the weapon but they want to make sure that the Syrian regime will continue.
  • Russia vetoed against the resolution in UN in which the investigation was described. In the resolution the UN proposes the investigation behind the chemical attack on Syria which resulted a huge massacre in Syria in which the normal civilians also died. This veto power was criticized by the U S and Britain and this veto also guarding the perpetrators who are responsible for this massacre. This six year old war started between Syria and rebellions but at current point it is the biggest controversy of countries who are ally to Syria and countries that are financing the rebellions.
  • The another resolution which was drafted by U S, U K and France in which the ban on supply of helicopter and other was proposed, after investigation by its came into light that Syrian troops striking by helicopter and the barrels of the gas was dropped by them. But the Russia and china vetoed against this proposal and another resolution was vetoed in the matter of Syria. The Russia want to make ensure that the Syrian govt and the regime of president Bashar will continue and the Russia also insisted the gulf and other countries that all are supporting the Bashar al- Ashad’s opposition that intervention in the Syrian territory is against their sovereignty.
  • Syria during the cold war was an ally of Soviet Union and also against the western powers. Soviet Union also opened a naval base in tartus which control the activity of meditarrian. And the same was done by Russia during the initial days of Syrian civil war Russia was supporting them.
  • Russia misusing the veto by not cooperating the other countries and UNO. The only way by which the Syrian civil war can be stopped is the political settlement and by making agreement but the misuse of veto against the resolution is shown the thought process of Russia. Russia being the permanent member of security council supporting the Syrian govt directly or indirectly by proving military assistance and by providing missiles, chemical weapons and other support.
  • Article 2(4) of UN charter clearly states that all members shall refrain in their international relation from the threat and use of force against the territorial integrity and or political independence of state, or in any other manner inconsistent with the purpose of United Nation. There exception of this provisions which include act of self-defense. In the case of Democratic republic of Congo vs. Uganda[18] the invitation of intervention is applicable when it completed the conditions and surpasses the situation over which it was made. Other than the given situation the forceful intervention is not authorized and illegitimate use of force cannot be considered as the part of invitation.
  • Same in the case of Russian intervention in the Syrian territory, Russia still have to prove the invitation letter of Bashar al- Ashad. The relation between Russia and Syria are basically for the political and social benefit of both the countries. So use of force from the side of Russia already fulfilled the half of their invitations motive but use of force by Russia on the oppositions of Syria is still in the doubt that why what authority Russia doing so?
  • Similar to Russia the other countries like USA, UK, and Turkey they also using force and striking from the air and attacking the Syrian territory is also in question. They attacked Syria because of the use of chemical attack on citizens but the Security Council failed to make a resolution for stopping these attacks. By attacking on Syria the U S and other countries also using force without any invitation and without any resolution. The permanent five members in this matter are totally misusing their exclusive power. At one point the Russia is not passing the draft resolution for stopping the Syria conflict and at other point the USA, UK and France continuously attacking on Syrian territory for stopping Syrian and Russian military. Basically the main aspect of fight which is ISIL is getting advantage of this situation.
  • The basic use of force and self-defense is described in the UN charter but when the use of force by the countries done in the feeling of envy and their personnel matters, it effect the whole world
  • UN is made for the international peace, justice, economic, social and for political support but at this time the UN is failed to control the big power because of the funding and assistance. The big countries are funding and giving them the troops, economic, and social support.

The Security Council gave the limited power to its members but the permanent five members using it for the benefit of themselves not for the UN objects. The basic motive of giving the veto is to prevent any personal and the kind of resolution which can benefit the proposing country and its ally. For this situation which is effecting Syria at large the UNHRC must looked into matter the death of the people on a such big level is doubting the power and authorization UN and its organs.

CONCLUSION

The basic use of force and self-defense is described in the UN charter but when the use of force by the countries done in the feeling of envy and their personnel matters, it effect the whole world is made for the international peace, justice, economic, social and for political support but at this time the UN is failed to control the big power because of the funding and assistance. The big countries are funding and giving them the troops, economic, and social support. The Security Council gave the limited power to its members but the permanent five members using it for the benefit of themselves not for the UN objects. The basic motive of giving the veto is to prevent any personal and the kind of resolution which can benefit the proposing country and its ally. For this situation which is effecting Syria at large the UNHRC must looked into matter the death of the people on a such big level is doubting the power and authorization UN and its organs. The countries which are permanent members of Security Council taking care of the peace and harmony in the world but when these countries themselves indulging in misconduct then who will entitle to control them. On that basis the international is need to be more specific and must establish the doctrine of checks and balance. In the current Syrian issue all the permanent members are indulge and they destroying the peace and security of the other state. In the name of self-defense and act of force they are colliding because of the personal grudges and political benefits. The international doesn’t define anywhere on the control of the permanent members. The UNHRC is still waiting for the settlement but without the resolution the massacre will not stop. The UNHRC must confront the outsider countries who all are indulging in the Syrian crisis.

The UN on the ground of peace security was formed and also the outcome of World War 2 but right now because of the pressure of the powerful nations the UN is also hand tied. The Security Council is not proceeding because of veto power of the 5 permanent members. There should be a restricting authority which will control the super powers and also there is need of more specific laws which will direct the countries in respect of the provisions of the charter.

[1]Dr.H.O. Agarwal; International Law and Human Right,42&43 (21st Edition)

[2]Dr. H.O. Agarwal, International Law and Human Rights; Chapter1; 9-10 (21st Edition)

[3] Brownlie, ‘Principle of Public International Law’, .57 (6th Edition, 2003)& ‘A Manual of International Law’, Vol.I, p.47 (4th Edition)

[4] Westlake aet.al, Collected Papers for Public International Law (1914) Vol.I, p.78

[5] Dr. H. O. Agarwal; International Law and Human Rights; 65 (21st Edition)

[6] ICJ Reports (1980)p.73 at pp.89-90

[7] Verdross, On the Concept of International Law, 43 AJIL 439 (1949)  and Dr. H.O. Agarwal, International Law and Human Rights, 66 (21st Edition)

[8]  UNCIO, San Francisco, 15 vols., 1

[9]IAN Brownlie BCE, Q.C.; Basic Documents in International Law, 2 (5th Edition, part 1)

[10]  B. Simma,The Charter of the United Nations  (2nd ed., Oxford, 2002)

[11] Article1 of the Charter of the United Nations’

[12] Malcolm N. Shaw, International Law, 1205(6th Edition)

[13]   United Nations Peacekeeping Operations: Ad Hoc Missions, Permanent Engagement (Ramesh Thakur & Albrecht Schnabel,2001).

[14] Article 4,5&6 of UN charter.

[15]Paul Taylor & A. J. R. Groom, The United Nations at the Millennium 230 (1st ed. 2003).

[16] Merrills, International Dispute Settlement, 147 (5th ed.).

[17] H. G. Nicholas, The United Nations as a Political Institution 10–13 Oxford, 1975.

[18]ICJ 116 (2005).