JURIST Guest Columnist W. Michael Reisman, McDougal Professor of International Law at Yale Law School, says that the current debate over expansion of the UN Security Council is not as critical as many diplomats and activists make it out to be...
The current agitation for expansion of the Security Council under one of the two plans of the High Level Panel is another of those ephemeral "crises." Once again, nothing will be done -- and the sky will not fall.
The real crisis posed to the UN, the one which prompted the Secretary General to establish the High Level Panel, was American insistence, after 9/11, on an expanded right to use military force unilaterally. The UN Charter prohibits states from using force, with one exception: actions in self-defense may be undertaken without prior Council approval, but, the Charter specifies, only in case of an "armed attack." The US, concluding that the only defense against Jihadist modes of warfare was ongoing offense, announced that henceforth it would defend itself "preemptively." This put the UN on a collision course with a Great Power, something which the veto privilege was designed to avert, but in this instance could not. After stating that there was no need to amend the Charter, the High Level Panel then reinterpreted it to find, mirabile dictu, that "armed attack" included "imminent attack." This largely met America's concern and obviated a real crisis for the Organization.
Because the United Nations is a heterogeneous constituency in which different states and groups of states have their own issues, an initiative like this has to be bundled into a package with something for everyone else's particular crisis. So the High Level Panel had recommendations, among others, for all forms of development assistance, which is the Third World's concern; for human rights reform, which is civil society's concern; and for changes in the Security Council, which is supposedly the General Assembly's concern.
None of the Panel's recommendations was surprising. On development assistance, the recommendation was . . . more. On human rights, which seeks to control what governments do to their citizens, the recommendation was to replace the Human Rights Commission, to which the General Assembly has repeatedly elected notorious human rights violators, with a different kind of commission . . . selected by the General Assembly. (Not that any of it will make much difference for human rights protection; after the conclusion of the Covenants and the other human rights treaties, for which the UN was indispensable, the action has shifted to non-governmental organizations.) As for the Security Council, the recommendation was to add enough seats to take care of the states that really want to become permanent members.
Curiously, there wasn't much in the cornucopia for the General Assembly, the body with the largest number of member-states. Unlike the 1963 Charter amendment, the alternative plans to expand the Security Council (the members of the Panel could not agree on one or the other) do not respond to General Assembly demands and will not empower that body. Now the 1963 amendment could have. It had increased the two-year, non-permanent berths on the Council from six to ten. This could have created a "non-aligned veto," if all the non-permanent members, who are elected by the General Assembly, had established a consultation procedure with the Assembly membership and collectively acted as its proxy in critical Council matters. They did not.
The vast majority of General Assembly members have neither expectation nor aspiration of ever winning a place on the Council. The High Level Panel's expansion proposals are of concern to a fraction of the UN membership, states that want to be on the Council because they covet the power and prestige that a permanent seat would give. Some of the aspirants for new permanent seats can validly point to their contribution to the UN as amply fulfilling the criteria spelled out in the Charter, for whatever those arguments are worth. Others claim to be "representatives" of their regions; there is no indication that their "co-regionists" share this perception or that the aspirants themselves would use the power they seek for "regional" purposes (whatever that means). The truth is the aspirants want the power for themselves. This is stated baldly, not to be invidious, but to underline the fact that expansion of the Council, whether under High Level Panel Plan A or B, would have no effect on the Assembly's historic concerns: the legitimacy of the Council and the veto power of its Permanent Members.
Amendment of the Charter requires the support of all five Permanent Members. While there is no evidence that any Permanent Member is especially enthusiastic about this amendment, it is all but certain that at least one member will not support it. With an arithmetical formula of 190-1= 0, that means that neither Plan A nor B is going to succeed.
Because terrible things are supposed to happen if the Council is not expanded, it is important to keep in mind how tiny the interest group agitating for expansion is. The failure to respond to their "crisis" will be a great disappointment to them but not a crisis for the Organization. Indeed, it will leave things better off. The United Nations has its problems, but a bigger Security Council, far from solving them, will only reduce the Council's effectiveness. Whether it is designing buildings or executive committees, Mies put it best: "less is more."
W. Michael Reisman is McDougal Professor of International Law, Yale Law School.