POWER SHIFT: THE UN SECURITY COUNCIL HAS LOST ITS CLOUT.

• Author: Nanda, Ved P.

TABLE OF CONTENTS TABLE OF CONTENTS I. INTRODUCTION II. THE VETO POWER AND THE GENERAL ASSEMBLY'S INITIATIVES BYPASSING THE VETO A. The Origin of the Veto Power in the Security Council B. Abuse of the Veto Power and the Creation of the Uniting for Peace Resolution C. The Veto Problem Persists 1. The Syrian Tragedy 2. The Myanmar Problem C. Russia's Aggression Against Ukraine III. THE SECURITY COUNCIL'S FAILURE TO TAKE EFFECTIVE ACTION AND ALTERNATE RESPONSES A. Syria B. Myanmar C. Ukraine D. Responsibility to Protect IV. CONCLUSION I. INTRODUCTION

As world leaders were convening in New York to address the 77th session of the United Nations during the week of September 20, 2022, Foreign Policy Magazine issued a report entitled, "A Crisis of Faith Shakes the United Nations in Its Big Week." (1) After noting that "[a] series of disastrous conflicts--including in Ukraine, Syria, and Ethiopia--have laid bare the limits of the U.N.'s ability to diplomatically intervene and make peace[,]" the report cited Richard Goban, U.N. Director at the International Crisis Group, who said: "In many, many places--whether it's Afghanistan, northwest Syria, Ukraine--the U.N. has shown it does not have the political space to fulfil the ideas of its original charter[.] A lot of time now, the U.N.'s role has been reduced to geopolitical ambulance-chasing." (2)

Addressing the General Assembly, U.N. Secretary-General Antonio Guterres lamented: "Our world is in peril--and paralyzed. Geopolitical divides are ... [u]ndermining the work of the Security Council[; u]ndermining international law[; u]ndermining trust and people's faith in democratic institutions^ and ujndermining all forms of international cooperation. We cannot go on like this." (3) On the same day, the Prime Minister of Japan, Fumio Kishida, blamed the Security Council's failure to respond to Russia's invasion of Ukraine on Russia's veto and called for U.N. reforms to allow the organization to better defend global peace and order. (4)

The fault indeed lies with the inaction of the United Nations Security Council, which under the U.N. Charter is granted the primary responsibility to maintain peace and security in the world and is the only U.N. body empowered to take binding decisions, to impose international sanctions, and to initiate military action. (5) It has miserably failed to perform its assigned functions. Often deadlocked and dysfunctional since the onset of the Cold War, the Council was dormant in 1959, drifted until a short period following the Cold War, and continues to flounder. (6)

The Security Council is especially dysfunctional because it suffers from a crisis of legitimacy for two reasons. First, its current configuration is anachronistic: there is no permanent representation from Africa or Latin America, there is only one permanent representation from Asia (China), influential countries are not represented, and it reflects the geopolitical reality at the time of its creation in post-World War II. Second, the veto power is used excessively and irresponsibly by the five permanent members--China, France, Russia, the United Kingdom, and the United States, or the "P5"--who hold the power to veto measures brought before the Security Council, and thus block action on any matter under consideration. (7)

As the UN Charter's envisaged collective security architecture collapsed, the deeply divided Security Council has been unable to effectively address several crises, including serious situations of atrocity crimes. None of the several proposals for structural reform of the Security Council--membership, composition, and the veto power--or reform of its decision-making processes (8) has found acceptance by U.N. members. (9) The P5's veto power presents a major hurdle, as their concurrence or abstention will be essential for the adoption of any reform proposal.

The former U.N. High Commissioner for Human Rights, Ms. Navi Pillay, cited conflicts in Afghanistan, the Central African Republic, Congo, Iraq, Libya, Mali, Somalia, South Sudan, Sudan, Ukraine, and Gaza to pronounce: "I firmly believe that greater responsiveness by this Council would have saved hundreds of thousands of lives," adding that "[n]one of these crises erupted without warning." (10) She identified the problem: "[s]hort-term geopolitical considerations and national interest, narrowly defined, have repeatedly taken precedence over intolerable human suffering and grave breaches of and long-term threats to international peace and security." (11) She criticized the use of the veto power in the Security Council, for "to stop action intended to prevent or defuse conflict is a short-term and ultimately counterproductive tactic." (12)

Numerous tragedies that remained unaddressed by the Council include the killing fields of Cambodia, the Rwanda Genocide, the Balkan atrocities, the massacres in Srebrenica, the second Iraq War, the Syrian Civil War, mass atrocities in the Darfur region of Sudan, Myanmar's Rakhine state, South Sudan, and Russia's annexation of Crimea, among others. (13) There is no end to the Syrian and Ethiopian conflicts, and the unprovoked invasion of Ukraine by a Permanent Member, Russia, is a daunting challenge.

How ironic that, as Russia's aggression in Ukraine was flagrantly violating the U.N. Charter and its founding principles, Russia's UN Ambassador was serving as the Security Council's President in February 2022. (14) Addressing the Council, Ukrainian President Volodymyr Zelensky warned: "We are dealing with a state that turns the right of veto in the UN Security Council into a right to kill[, undermining] the whole architecture of global security." (15) He asked, "[s]o where is the security that the Security Council must guarantee? There is no security [although] there is a Security Council," and added, "[i]t is obvious that the key institution of the world, which must ensure the coercion of any aggressors to peace, simply cannot work effectively. If this continues, the finale will be that each state will rely only on the power of arms to ensure its security, not on international law, not on international institutions. Then, the UN can simply be dissolved." (16)

Zelensky himself had offered an alternative as he addressed the U.S. Congress earlier: he called for creating "new tools to respond quickly and stop ... [t]he full-scale Russian invasion of Ukraine, which began on February 24th." (17) He explained:

So we need new ones, new institutions, new alliances, and we offer them. We propose to create an association, U-24, United for Peace, a union of responsible countries that have the strength and consciousness to stop conflicts immediately, provide all the necessary assistance in 24 hours if necessary, even weapons, if necessary. Sanctions, humanitarian support, political support, finances, everything you need to keep the peace and quickly save the world, to save lives. In addition, such association, such union could provide assistance to those who are experiencing natural disasters, man-made disasters, who fell victims to humanitarian crisis, or epidemics. (18) And in January 2020, the Cambridge University Press had offered a proposal to replace the Security Council with an Executive Council consisting of 24 members under the authority of the General Assembly that would provide a balanced voice for all member states. (19) The Council would be responsible for collective security implementation and effective operation of the United Nations. (20) The veto power would be eliminated and replaced by a two-thirds majority of the voting power of all members on important matters. (21)

A paralyzed Security Council is unable to address today's pressing challenges, including massive human rights violations as well as climate change and public health crises. This has led to the erosion of the Council's clout and calls for reforming it, (22) but all such efforts face a major hurdle--use of the veto power by one of the P5 members. It has also led to a shift of power from the Security Council, primarily to the General Assembly, but also to the regional organizations.

The Uniting for Peace Resolution, which was adopted in 1950 by the General Assembly, received renewed interest after Russia vetoed a draft resolution condemning its acts of aggression in Ukraine, stymieing any possible action on the crisis. (23) The Security Council called for a General Assembly Emergency Special Session on February 27, 2022, (24) and since that time the Assembly has taken several bold actions, which are discussed below. This article examines the nature and scope of the power shift and its implications. Section II briefly notes the origin of the veto power and reviews the recent General Assembly initiative pursuant to the Uniting for Peace doctrine to hold accountable the Council Member using a veto and its implications. Next, Section III reviews the Security Council's failure to take effective action and some alternate responses; Section IV follows with the Conclusion.

2. THE VETO POWER AND THE GENERAL ASSEMBLY'S INITIATIVES BYPASSING THE VETO

   1. The Origin of the Veto Power in the Security Council

      Article 27 of the U.N. Charter entitles the five permanent members of the Security Council. (25) This decision was taken at the 1945 San Francisco Conference where the founders negotiated the Charter. (26) Any attempt there to weaken the veto power was rejected by the P5. (27) Professor Francis O. Wilcox, who served as a consultant to the Congressional members of the American delegation at San Francisco, (28) recounted:

      At San Francisco, the issue was made crystal clear by the leaders of the Big Five: it was either the Charter with the veto or no Charter at all. Senator Connally dramatically tore up a copy of the Charter during one of his speeches and reminded the small states that they would be guilty of that same act if they opposed the unanimity principle. "You may, if you wish," he said, "go home from this...