UK’s lost seat at the International Court of Justice: a reflection on the authority of the Security Council

On 20 November 2017, following a ‘bruising diplomatic battle’ and for the first time since the creation of the United Nations, the United Kingdom relinquished its seat at the International Court of Justice, where judges nominated by the five permanent members of the Security Council have been customarily granted a place on the bench. The failure of the United Kingdom to prevent the adoption of the UN General Assembly resolution 71/292 (June 2017) requesting the International Court of Justice to provide an advisory opinion on the legality of the separation of the Chagos Archipelago from Mauritius in 1965 seems, in hindsight, premonitory. The Chagos resolution was adopted by 94 votes in favour, 15 against and 65 abstentions, with European Union countries among the majority of abstaining States. Over the five rounds of voting held on 13th November 2017 to re-elect a judge of the International Court of Justice, it became apparent that the widening gap in the General Assembly between the Indian candidate, Dalveer Bhandari, and the British one, Christopher Greenwood, was steadily increasing in favour of Judge Bhandari.

Whatever other reasons may explain the weakened position of the United Kingdom in international affairs, the undermined legitimacy of the current structure of the Security Council is particularly relevant. The different attempts to reform the UN Security Council have demonstrated two things. First, that there is a growing consensus on the need to reform the Council to ensure a better representation of the UN membership, drastically different from the founding members. Second, the impossibility of implementing such reform due to legally ingrained obstacles that prevent their modification. The question of equitable representation on, and increase in the membership of the Security Council has been on the UN General Assembly agenda since 1979 and continues to be frequently addressed in that forum. The decision to rejuvenate efforts to comprehensively reform the Security Council in all its aspects reflected in the 2000 UN Millennium Declaration (paragraph 30), followed by the concrete proposals put forward by the High level Panel on Threats, Challenges and Change in 2004 (paragraphs 244-260), reignited the academic and diplomatic debate. Successive waves of reform proposals resulted in ‘beauty contests’ where states parade a myriad of economic, political, military or geographic merit they deem relevant to deserve a position in a reformed Security Council, without yielding any result.

The criticism addressed, of the democratic deficits and lack of representation of the Security Council, often ignore the rationale for the permanent membership and veto powers. The United Nations was established after World War II with the primary objective of ‘…saving succeeding generations from the scourge of war’. The prohibition of the use of armed force to settle international disputes was established for this purpose and the Security Council was conferred with the unique responsibility to maintain global peace and security. Outside the confines of self-defense, the use of armed force could only take place if the States most likely to provoke a third world war were in agreement. Arguably, the fact that these rules have been openly broken by veto-wielding permanent member states with the primary responsibility of upholding them, has had a profound impact on the legitimacy of the Security Council and the United Nations as a whole. The first blatant manifestation was the NATO intervention in Kosovo, repeatedly characterised as illegal but legitimate, following the impossibility of securing Security Council authorisation, opposed by Russia and China. The military intervention in Iraq followed suit in 2003, with ousted Judge Greenwood (as an academic at that time), playing a significant role in providing legal cover for it, ignoring the clear lack of endorsement by the Security Council. More recently (2013), the UK published its legal reasoning to support its right to unilaterally use armed force in Syria, an action blocked by its own Parliament. In 2017, the US resorted to military strikes in Syria, without even trying to provide legal varnish for its actions despite adverse domestic level pressure. The practice of both countries put their geo-political interest ahead of their responsibility to maintain peace and security and the institutional system of which they are primary custodians.

The ‘paralysing’ effects referred to by commentators when reporting on the misuse of veto powers, tend to omit the fact that such paralyses have often halted military interventions with uncertain outcomes. Even when good arguments exist to defend illegal but legitimate use of force, (or  to defend other internationally banned practices such as torture), it is worth remembering that they weaken the law, the institutions and actors acting as their guardians. In this context it is unsurprising that the community of States is showing its discontent with the privileges enjoyed by permanent member states that have contributed to undermine the authority of the Security Council through their actions. The loss of the British judge is symbolic in this sense. The lack of respect for Security Council rules by its permanent member has spread to the rest of the world. The real problem is the uncertainty ahead. It seems increasingly implausible that the United Nations will survive in its current form for another 70 years. Judging by its track record, it is also unlikely to self-reform. The world needs inspired leadership to redesign and effectively implement a credible system of collective security accepted as legitimate by the international community. In the meanwhile, all signs point towards the progressive dismantling of the existing framework without anything to replace it with.

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One thought on “UK’s lost seat at the International Court of Justice: a reflection on the authority of the Security Council

  1. Pingback: Have Your Cake and Eat It Too: The Impossible Stance on The Syrian Strike | IntLawGrrls

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