China and Russia, two permanent members of the United Nations Security Council, vetoed, on July 11, 2008, a draft resolution prepared by Britain and the United States for the Security Council to impose an arms embargo on Zimbabwe and financial and travel restrictions on President Robert Mugabe and 13 other top military and government officials, and authorise a United Nations special envoy for Zimbabwe.
Nine countries out of 15 voted for the resolution, but under Article 27 of the United Nations Charter, the Security Council's resolutions require "the concurring votes of the permanent members" of the Security Council.
Vitaly Churkin, Russian ambassador to the UN, is of the view that the proposed sanctions exceeded the Security Council mandate. He considers the draft resolution "an even more obvious attempt to take the Council beyond its charter prerogatives and beyond maintaining international peace and security." He believes "such practice to be illegitimate and dangerous" and that this draft is "the Council's attempt to interfere in the internal affairs of a member state."
Unhappily, the ambassador's statement is nothing but "the rhetoric of statism," to use Professor Anthony D'Amato's apt expression, to rationalise and justify the internal arrangements and practices of states, which are contrary to contemporary international human rights law, by selectively using the language of international law.
Long ago the Permanent Court of International Justice, the predecessor to the present World Court, answered the question of where to draw the line between domestic jurisdiction and international concern. It ruled in 1923, "the question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations."
Given the enormity of development in human rights law and the substantive requirement of the conformity of internal governance with international standards, the Russian ambassador's position is, in the words of British ambassador to the UN Sir John Sawers, "an old-fashioned and literal view." The instance of serious human rights violations is a matter of international concern.
It is understandable that the political leadership of newly independent countries in the post-decolonization era are jealously protective of its political independence and territorial integrity. The notions of "sovereignty of states" and "non-interference in the internal affairs of states," unfortunately, continue to evoke emotions and indignation from the general population of the country concerned. Regrettably, they are not only the direct victims of human rights abuses and deprivations, but also the victims of the cultural hegemony of the elite, in Antonio Gramsci's sense.
That's why external forces of ideas and knowledge such as the Universal Declaration of Human Rights serve like the Reformation. The Universal Declaration is unequivocal in prescribing that "[t]he will of the people shall be the basis of the authority of government." Sovereignty is thus the sovereignty of the people and not "a metaphysical abstraction called the State," to quote Professor Michael Reisman.
As I described previously in this column ("The Regime of Negative Reciprocity," July 9, 2008), occasionally, the notion of "reciprocity" reversely affects the process of decision-making in dyadic relations between two countries resulting in the lowest common denominator. "Under the present conditions, passing a sanctions resolution against Zimbabwe would not help to encourage the various factions there to engage in political dialogue and negotiations and achieve results," said Mr Lin Jianchao, spokesman of the Chinese Ministry of Foreign Affairs. In turn, Zimbabwean Ambassador to the UN Boniface Chidyausiku said, "The United Nations has stuck to the Charter." China's veto on the draft resolution on Zimbabwe, I would submit, belongs to this category of negative reciprocity.
Under Chapter V of the UN Charter, the Security Council has "primary responsibility for the maintenance in international peace and security," and that competence was "to ensure prompt and effective action by the United Nations." The Security Council acts on behalf of all the UN members, and they agreed to accept and carry out the decisions of the Security Council. Why do we need "the concurring votes of the permanent members"?
The original rationale for the veto was that it was the Great Powers that would be ultimately called on to maintain peace and security under Chapter VII, and, therefore, they had to be protected against loss of control over the events that might lead to such enforcement decisions in the Security Council. The requirement of "the concurring votes of the permanent members" was designed to maintain the same unanimity rule among the Great Powers as was practised during the execution of the Allied war campaign during World War II; otherwise, it was thought the Organisation would break down if enforcement action were undertaken against a Permanent Member.
But that kind of rationalisation was entertained in the beginning of the United Nations with only 51 members. Now the situation is radically different not only in terms of the number of member countries (192 in 2008), but more importantly in terms of the availability of accessible and mobile modern weaponry, the modus operandi of discrete proto-state groups that wage asymmetrical warfare, and the role of the media and civil society in political processes. Under these circumstances, the unanimity rule has become anachronism.
As historical records amply attest, the instance of the veto has become integral part of the regime of negative reciprocity and mutual tolerance among the permanent members of the Security Council as each casts a veto to protect its foreign policy interest. Moreover, under Articles 108 and 109 of the UN Charter, there is no possibility of amending any provision of the Charter without the concurring votes of all the permanent members of the Security Council. So what can we do?
The General Assembly adopted the "Uniting for Peace" resolution (A/RES/377A) on November 3, 1950 when the Security Council failed to exercise its "primary responsibility" for maintaining peace. The General Assembly recognised that such failure did not deprive the General Assembly of its rights or relieved it of its responsibilities under the Charter for the maintenance of international peace and security. Accordingly, the General Assembly resolved that:
"If the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security..., the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security."
To facilitate prompt action by the General Assembly, the resolution created the "emergency special session" framework. The session can be convened on the basis of either a procedural vote in the Security Council, to which the veto does not apply, or within twenty-four hours of a request by a majority of UN Members being received by the Secretary General. The "Uniting for Peace" resolution provides the necessary authority and mechanism for the General Assembly to overrule any vetoes in the Security Council and to discharge its responsibility for international peace and security.