An old new idea to break P-5 impasse

p5Rather muted in the U.S. press is France’s recent call for “self-restraint” on its part and that of its veto-friendly partners in the P-5.

The P-5, of course, are the 5 countries with permanent membership on the U.N. Security Council. By U.N. Charter mandate, each of the 5 enjoys the right to veto a resolution authorizing intervention – even if the rest of the 15-member Council finds harm to international peace and security. As has been evident in the 2-plus years of Syria’s civil war, by exercising its veto a P-5 member can leave a matter run its course without international intervention no matter what the casualty count.

France has suggested a way out of this predicament. As stated in an op-ed that Foreign Minister Laurent Fabius published October 4 in Le Monde, in French, and in the International Herald-Tribune, in English, here’s the idea:

‘[T]he five permanent members of the Security Council – China, France, Russia, Britain and the United States – themselves could voluntarily regulate their right to exercise their veto. The Charter would not be amended and the change would be implemented through a mutual commitment from the permanent members. In concrete terms, if the Security Council were required to make a decision with regard to a mass crime, the permanent members would agree to suspend their right to veto.’

How to determine when the commitment is in play? It’s “simple,” Fabius wrote:

‘[A]t the request of at least 50 member states, the United Nations secretary general would be called upon to determine the nature of the crime. Once he had delivered his opinion, the code of conduct would immediately apply.’

Fabius recognized “that objections of all kinds can be made,” and sought to deflect some of them with this caveat:

‘[T]his code would exclude cases where the vital national interests of a permanent member of the Council were at stake.’

It is not a new idea. As pointed out in an October 3 lecture at Georgia Law by Lee A. Feinstein, the former U.S. Ambassador to Poland who’s teaching here this semester, a similar idea appeared as Principle 3(D) of The Responsibility to Protect, the 2001 Report of the Independent Commission on Intervention and State Sovereignty, which launched the responsibility to protect concept.

What is new is that the show of support comes from a P-5 state itself. Yet it must be mentioned that France has vetoed far fewer times than most of its peers on the P-5. And those peers likely will be far less enamored of France’s idea, as Mark Goldberg posted at UN Dispatch.

What could draw those peers toward France’s idea? Perhaps an understanding that a P-5 member’s “vital national interests” are “at stake” whenever a resolution implicates the member’s client state. But then adoption would be hollow, for such a proviso would sap the proposal of its strength.

(Cross-posted from Diane Marie Amann. Credit for September 2013 U.N. photo by Mark Garten of, from left, British Foreign Secretary William Hague, French Foreign Minister Laurent Fabius, Russian Foreign Minister Sergey Lavrov, U.N. Secretary-General Ban Ki-moon, U.S. Secretary of State John Kerry, and Chinese Foreign Minister Wang Yi.)

U.N. Security Council Reform and the Duty to Decide

U.N. Security Council

The armed conflict in Syria, ongoing since 2011, garnered increased attention from the international community this week. First, the European Union did not renew an arms embargo on the Syrian opposition, thus allowing EU member states to make their own decisions about whether to provide military resources to parties to the conflict. Then, Russia announced that it intended to uphold a defense contract to provide weapons, including air defense systems, to the Syrian government. These developments have frustrated efforts led by the U.S. and Russia to initiate peace talks between Syrian President Bashar al-Assad and the Syrian opposition in Geneva in June. U.S. Secretary of State John Kerry was critical of Russia’s decision, saying “[i]t is not helpful to have the S-300 transferred to the region while we are trying to organize this peace [conference] and create peace.”

Notably absent from the headlines is the U.N. Security Council. The Council’s heavily criticized handling (or lack thereof) of the Syrian conflict shows that despite the fact that the Council has “primary responsibility for the maintenance of international peace and security,”[1] it also has no legal obligation to take actions or make decisions on crises that arise within the scope of its mandate. In my recently published article in the Harvard National Security Journal, I argue that it should. The Security Council is the only governing body with the legal authority to authorize binding measures necessary to restore peace and security, yet neither the United Nations Charter nor the Council’s own rules clarify the extent of its obligations. Unlike courts, the Security Council lacks a procedural rule establishing that it has a duty to decide. As a result, Security Council members can, and frequently do, defer making decisions in politically difficult cases. The costs of this ambiguity to those who depend on the Council for their security are high, making debate about reform critical and necessary.

In my article, I propose a model of reform that focuses on improving the Council’s decision-making practices through the adoption of three new procedural duties. First, the duty to decide would require the Council to take up decisions about whether or not it will take action in crises under its jurisdiction. Second, the duty to disclose would require the Council, when it takes no decision in a particular situation, to publicly disclose its reasoning for not doing so. Third, the duty to consult would obligate the Council to take reasonable measures to consult those nations, and the people therein, most affected by decisions falling under its Chapter VII authority regarding sanctions, intervention, and the use of force.

This framework provides a method of reform that places the Council in control of instituting changes to improve its decision-making process. I argue that unlike many other reform proposals, this approach is viable because it has the capacity to improve the Council’s effectiveness and address some of the common critiques of the Council’s lack of accountability and transparency, while still affording the Council the ability to control reform through the adoption of new procedural rules. Drawing upon statements made by U.N. Security Council Members and other U.N. members at the fifth Open Debate on the Working Methods of the Council meeting in November 2012, I show that there is considerable support for engaging in procedural reform and that such reform offers a viable pathway for initiating change at the Security Council. I also draw upon theoretical insights from international legal process theory, social psychology and negotiation theory to explain under what conditions procedural reform is effective and why it matters. For example, establishing the duty to consult is important because empirical research shows that increasing participants’ process control improves their perceptions about the fairness and legitimacy of the outcome.[2]

Ultimately, reform is necessary if U.N. Security Council is going to remain the shepherd of international peace and security. The proposed duties to decide, to disclose and to consult offer a politically viable start. However, I also recognize that procedural reform cannot and should not be a substitute for the more complex and difficult conversation that needs to take place about the purpose and function of the Security Council in the 21st century. One of the critical questions the Council faces, as the Syrian conflict has demonstrated, is whether or not the Council intends to assume responsibility for global peace and collective security. As the Open Debate showed, many U.N. members assume that the Council is concerned with regional security, civil wars and other threats to the peace that do not fall within the scope of situations envisioned in Article 39 at the end of World War II.

Such expectations are based on the presumption that the Council is responsible for collective peace and security globally. If the Security Council  is not going to be the locus for collective peace and security, we face an era where other organizations such as NATO and individual nations will intervene into armed conflicts in the Council’s absence. For these reasons and more, the Council’s responsibility for peace and security given today’s realities must be defined and confirmed. Until that happens, procedural reform offers a pathway toward improving the way the Council operates while the world waits for comprehensive reform.

[1] U.N. Charter Article 24.