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Australian Year Book of International Law |
Gerry Simpson[∗]
Much of my recent work concerns the intersection of law and power.[1] I have used a familiar but neglected principle of international law, that of sovereign equality, to investigate some dilemmas about international legal and political order. The principle of sovereign equality is associated with the notion that states are formally equal or are entitled to some sort of equality under or before or in the creation of the law.[2] I have juxtaposed against this principle of international order two images of the state that are just as familiar to international lawyers but, perhaps, are under-theorised by them. These are, respectively, the image of the ‘great power’ and the portrayal of some states as outlaw states or criminal states. In a recent article I discuss the relationship between two versions of liberalism, sovereign equality and the characterisation of certain states as beyond the pale.[3] In this paper, I turn to the relationship between the principle of sovereign equality and the concept of great powers. It is important to be clear about what I mean by ‘great powers’.
Of course, states assigned this label possess immense economic, military and political resources. What makes them great powers, though, is the legal recognition of their status as superior powers by others in the society of states and the great powers’ own sense of responsibility for the operation of the system.[4] Material advantage alone cannot confer great power status.[5] Great powers are, in one sense, the converse of outlaw states: they are endowed with special privileges while outlaws are denied standard rights. Yet, both categories challenge a particular understanding of international law that sees all states as equals and does not willingly tolerate departures from this principle of equality.
With one exception, the standard textbooks on international law have not been concerned, to any significant degree, with the problem of the great powers. The exception is Professor Greig’s International Law, published in 1974. In a forthright and erudite passage, typical of the book itself and of his work generally, Professor Greig considers the problem of the United Nations (UN) Charter. What are the basic principles underlying it? For Greig, there is little doubt that it is ‘the principle of great power hegemony upon which the Council and Charter is based’.[6 ]This view, though, is at odds with that found in some of the specialist texts on the UN Charter. Goodrich and Hambro, for example, argue that it was sovereign equality that, ‘determined the fundamental character of the proposed organisation’.[7] Bleckmann justifies his agreement with this position by arguing that any exceptions to the principle of equality were ‘based on pragmatic reasons and cannot be interpreted as a general feature of the Charter …’.[8]
I want to take Greig’s comments as my point of departure in thinking about sovereign equality and a phenomenon I want to call legalised hegemony. In the end, I disagree with both Greig and the likes of Goodrich and Hambro.[9] In this paper, I argue that the UN Charter effects a (perhaps unremarkable) compromise between the political requirements of hegemony (or what was termed the ‘special responsibility’ of the great powers) and the juridical commitment to equality (or the dignity and sovereignty of the smaller states). Of course, throughout the past 56 years, the particular ways in which equality and hegemony have been configured have themselves changed. What has remained stable, though, is the original constituting text of the world organisation.[10] Accordingly, this paper focuses on the debates at San Francisco and how these debates shaped this text and determined the contours of the tension between sovereign equality and legalised hegemony. I consider the operation of legalised hegemony and sovereign equality in the drafting history of the UN Charter in order to demonstrate how, not for the first time, institution-building in the legal order required an attempt at reconciliation between these two core values.[11] All of this, in turn, has contemporary significance in the light of recent debates concerning reform of the UN. Though I do not make any explicit links in this paper, it will be obvious to the reader that many of the patterns of debate found in 1945 are being replayed in present discussions.[12]
In 1945 a number of states met at the Fairmont Hotel in San Francisco to establish a new international organisation and to design its constituent instrument, the UN Charter.[13] At this time, the world community was split along (at least) three axes: the great powers, the small and middle powers, and the enemy states. Each represented a different bloc of interests and presented a distinct set of difficulties for the re-negotiation of international political community.
The great powers arrived at San Francisco convinced of the merits of their proposals for a world order devised at Dumbarton Oaks and based on legalised hegemony.[14] The ‘four policemen’ model was a central element of these proposals and the idea of an executive-led, collective security regime dominated the thinking of the United States of America, the United Kingdom and the Soviet delegates in particular. The small and middle powers brought to California a set of anxieties about the shape of order expressed in the Dumbarton Oaks proposals.[15] They worried about the entrenchment of great power privilege in the UN Charter. There was widespread acceptance that the great powers occupied a special position in the international system but many of the delegates believed that the Dumbarton Oaks proposals had exaggerated the role of the great powers in the areas of dispute resolution and enforcement. There was a belief that the new organisation threatened to convert potentially ephemeral material inequalities into immutable constitutional certainties. The Netherlands government, for example, in responding to the Dumbarton Oaks proposals, regretted the fact that these proposals perpetuated ‘and legalised an existing de facto position of inferiority’.[16]
Finally, there were the enemy powers. They were the outsiders against whom the other nations were to be ‘united’. They were to have no role in drafting the new Charter and were to be excluded, initially, from the resulting organisation. Their existence meant that the early outlines of the organisation could not be fully universal. The idea of the ‘enemy state’ was thereby ingrained in the formative moments of the new international organisation.[17]
How were all these positions to be reconciled? In particular, would or could sovereign equality be reconciled with the idea of great power privilege? For those committed to the ideal of equality among nations, the opening scenes of the conference (albeit that they took place offstage) must have seemed inauspicious, to say the least. Clement von Metternich, who hosted the important ‘informals’ prior to the Vienna Congress in 1814 in his apartment, though, would have recognised the scene (and endorsed the procedure) as the ‘big five’ met in a penthouse suite on Nob Hill at the Fairmont Hotel in San Francisco to discuss the outcomes of the conference to establish the UN system.[18] The idea of pre-arranging a post-war order in anticipation of a plenary conference of all nations had an established history by this time.[19] The outlines of the UN system itself are found in the war-time councils of the great allied powers at Moscow (1941) and Yalta (1944) and in the technical agreements at Dumbarton Oaks.[20] The smaller states were excluded from all these preliminary but defining conferences. It was accepted among the great powers, therefore, that the system would be hegemonic in style and structure (though the euphemism, ‘collective security’ was preferred).
At first, following Yalta, President Franklin D Roosevelt of the United States of America, whose administration was the intellectual engine-room for this new world order, envisaged a policing mechanism as the central element of international organisation.[21] The big three (the United States of America, the United Kingdom and the Union of Socialist Soviet Republics) were to possess exclusive enforcement capacity over a disarmed majority (with the possibility of some review by a watchdog body of neutrals). In cases of recalcitrance, ‘the policing powers could then threaten to quarantine the offending state and, if that did not work, to bomb some part of it’.[22] Later, at Dumbarton Oaks, the Americans developed the idea of an Executive Committee in which three of the big four (China was now added to the list) could initiate action with the support of some smaller states.[23] The British favoured this concept of an executive body though they were keen for it to have a European focus. In October 1942, the British issued their Four Power Plan, which anticipated an international organisation under the ‘supreme direction’ of the four great powers with ‘an international police’[24] and this figure of the policing organisation is found repeatedly in other statements of President Roosevelt, Mr Sumner Welles,[25] Premier Joseph Stalin and Prime Minister Winston Churchill around this time.[26]
That the UN was to be based on a form of legalised hegemony struck most observers as inevitable. However, it was justified in a number of different ways. One rationale was based on the special responsibilities of the great powers.[27 ] Anthony Eden [28] made this explicit in his address to Parliament following the Moscow Conference where he began by allaying fears that the three powers had any intention of creating a ‘dictatorship’. On the other hand, he continued, ‘special responsibilities do rest on our three powers and we did at Moscow try to devise machinery and agree on a policy which would enable us to give full expression to that sense of our responsibility’.[29] A number of Roosevelt’s war-time statements reflect the same assumptions. In his Postwar Security Organisation Program of 15 June 1944, he refers to those states, ‘bearing responsibilities commensurate with their individual capacities’.[30 ]Andrei Gromyko, the Soviet Ambassador to the United States, justified the special position of the great powers on the correspondence of this position with the ‘responsibilities and duties that would be imposed on them’.[31]
Interestingly, though, the great powers did not wish to have this justification articulated in the UN Charter itself. Mexico sought to spell out the reasons for the special position of the ‘big five’ in the Charter. Permanent seats would go to those states with ‘greatest responsibility for the maintenance of peace’ because of the ‘juridical principle that more extended rights were granted to those states which have the heaviest obligations’.[32] The proposal that these justifications be expressed in the Charter was rejected by the five great powers.[33]
Another view advanced at this time regarded a place on the Security Council as a ‘reward’ for the great burden borne by the major allied powers during the war.[34] These powers, it was said, had a unique role in preserving peace in light of their war-time sacrifices and, in a stronger version of this view, they had, as a result, come to embody the general interest.[35]
Ironically, one of the primary justifications for hegemony was, and continues to be, linked to the idea that ‘substantial’ sovereign equality could best be preserved by resort to legal hegemony. According to this view, the sovereignty and existence of small states could only be secured through some form of hierarchically based centralised international organisation. To give a contemporary example, the preservation of Kuwait’s sovereignty could be attributed to the special privileges and powers of the Security Council without which the great powers would be disinclined to intervene in order to preserve the sovereign equality of a member state.[36]
Finally, there were the ghosts of Vienna[37] and, most notably, Versailles [38] to exorcise. The great powers were determined to avoid the lack of consensus apparent shortly after Vienna, the fatal dispersal of power and the overall lack of centralised, mandatory authority found at Geneva.[39] The principal failing of the post-great war settlement was thought to lie in its lack of enforcement potential combined with the absence of certain key powers from the elite arm of the organisation. It was regarded as vital that these defects be remedied at San Francisco.[40] Equally, Vienna, while it created a loose and inclusive enforcement arm of the great powers in the Concert of Europe, lacked an institutional structure and permanence. The Second World War allies preferred a concert built on firmer organisational foundations.
These various inclinations resulted in a process that was, initially, openly elitist and a series of proposed norms that reflected or confirmed the dominance of this elite. The big powers met in various combinations prior to San Francisco with the smaller powers waiting in the wings for portents of the new international order. The Washington Declaration [41] was signed by all of the, then, 26 allied states, but even this gesture to equality was undermined by the unusual practice of having the major four powers sign the document first. According to Ruth Russell, this was a procedure ‘not accepted without resentment by many of the smaller states’.[42]
So, throughout the pre-San Francisco period, the big three continued to meet and discuss drafts. There was little inclination to ask the small powers to participate lest they ask awkward questions of their larger allies. International organisation was to be worked out in advance by the elite states. The ‘Vienna’ procedures[43] were preferred over transparency or democratic decision-making. This was the case in both the political discussions at Moscow and Potsdam and in the important technical meetings at Dumbarton Oaks. Often, the decisions reached at these meetings formed the substance of the final texts in the UN Charter.[44]
But there remained the tricky question of who was entitled to great power status or designation. This issue had arisen at Vienna where the great powers had been similarly mismatched and where France’s role had proved so ambiguous.[45] It is typical of any period of hegemony that the identity of the hegemons themselves will often be controversial. The category is inevitably contentious and in order to supply some stability to membership a rough notion of sovereign equality has often been employed in relations among the great powers despite obvious differences in power, capacity and influence.
At the conclusion of the Second World War, the United States of America, the Union of Soviet Socialist Republics and the United Kingdom formed a natural alliance (though even within this group there was a United States-United Kingdom predominance that gave rise to a great deal of suspicion on the part of Stalin).[46] However, the question of China’s and, later, France’s membership quickly became an issue of contention. The British were against Chinese membership, believing the Chinese to be unworthy of this status and the Soviets refused to even talk to the Chinese as equals.[47] These disputes resulted in two separate conversations at Dumbarton Oaks, one between the United States, United Kingdom and the Soviet Union, and the other involving the United States, United Kingdom and China.[48] In the end, the American interest in having the Chinese as (junior) policing partners in the Pacific prevailed over more material criteria and China was admitted to the great power grouping.[49] In contrast, the United States attitude towards France was quite negative. Roosevelt believed it to be a small power, which would be disarmed as part of the general post-war settlement. By mid 1944, however, pressure was rising to allow France a place at the table and France was eventually admitted in 1945. As at Vienna, it was partly because of the fear that France would become a leader in the Assembly of the smaller European powers that it was co-opted onto the Security Council.[50]
The result of all this was the present composition of the permanent members of the Security Council (the ‘P5’). It is worth remembering that the make-up of the P5 was far from settled even as late as 1945. It is not the case that reform of the Security Council membership today is necessary because the current membership has become an anachronism. It always was an anachronism. When Goodrich and Hambro argued that article 23 imposes a ‘static arrangement’ because ‘the great powers today … [may not] always continue to be so’, they are only half right.[51 ]At least two of the P5 powers of ‘today’ were in fact, already in 1945, the great powers of yesterday.[52]
This need not have been the case. There were a number of proposals in circulation after Dumbarton Oaks that sought to mitigate the element of permanence and lack of flexibility in arrangements concerning the identity of the great powers. The Mexican Plan reflected the overall thrust of some of these plans (others included The American-Canadian Technical Plan and The United States Technical Plan) in calling for an ‘Executive Council’ based on a distinction between non-permanent and semi-permanent members. Article 12 of the Mexican Proposal read:
The semi permanent Delegates shall represent the States whose responsibility for the maintenance of peace is more considerable in the international community. It shall be the duty of the Assembly to decide, every eight years, which shall be these states.[53]
This was justified on the grounds that history is partly a history of the rise and fall of individual great powers. As the Explanatory Memorandum put it, ‘there is no State whose relative international importance fails to suffer with the passage of time’.[54] This proposal, too, was rejected. The great powers wanted privilege to follow power but only to a certain extent. They did not wish to have the enjoyment of these privileges subject to the continued possession of commensurate power.
A norm of sovereign equality, then, created a level of artificial parity between the great powers themselves in the Security Council just as legalised hegemony ordered relations between the core and the peripheral states.[55] This combination of parity and hegemony became a mark of the new international legal order.
To conclude, the four (and subsequently five) ‘great’ powers, for all their disagreements, did reach a consensus on the idea that they were to be the principal players in the new organisation. This agreement was born out of two concerns that were dominant at Dumbarton Oaks. The first, as I have said, was the strong belief that this new world organisation should not repeat the mistakes of its predecessor, the League of Nations. In order to accomplish this end the Dumbarton Oaks delegates settled on a system in which there was very little diffusion of responsibility and power in the organisation and in which there was the potential for rapid military action against potential aggressors. The second concern flowed directly from the solution to the first concern and resolved itself as an anxiety on the part of the four powers that majority voting in the security branch of the new organisation combined with strong enforcement powers might lead to a situation in which one (or more) of the four might be obliged to provide military support for an action of which it was not in favour.[56]
At the same time, the sovereign equality of all states, as opposed to a specific equality ordering relations among the elite powers, was recognised as a founding principle of the UN system from its period of gestation during the Second World War through to the final drafting process in 1945. As early as 1943 in Moscow, where the four major allied powers initiated the planning of a future world organisation, they acknowledged, in article 4, the need to establish ‘at the earliest practicable date a general international organisation based on the principle of sovereign equality of all peace-loving States and open to membership by all such states, large and small’.[57]
This was partly a matter of form and partly a response to the anxieties of smaller powers which were alarmed by Roosevelt’s policing metaphor.[58]
Roosevelt, himself, saw parallels between sovereign equality and the rights enjoyed by individuals within the American republic. The idea that the large would dominate the weak was rejected as having been the principle adopted by the enemy states.[59] Cordell Hull,[60] in an address to Congress after the Moscow Conference called equality ‘the corner-stone of the future international organisation upon which the future international organisation will be constructed’ and he laid particular emphasis on the special significance of the norm for the ‘American family of nations’.[61] The mantra was repeated at Dumbarton Oaks.[62]
Meanwhile, in international legal practice, the principle of sovereign equality was influencing the great powers in some of their direct dealings with minor states. At the Teheran Conference,[63] for example, there was an exchange of notes between the UK/Soviet Union and Iran in which the Soviets and British agreed to ‘do their best to secure that Iran will be represented on a footing of equality in any peace negotiations affecting her interests’.[64]
But while the great powers were paying lip-service to the idea of equality, the smaller states were naturally alarmed at the prospects of four policemen in a world in which they were to be disarmed. Many states worried that the Dumbarton Oaks proposals had concretised a system of permanent alliance among the great powers to the detriment of the ‘rights and aspirations of the so-called small and medium nations’.[65]
The problem for the drafters of the UN Charter was exactly that which faced Castlereagh[66] in Vienna and the likes of James Scott during The Hague Conference of 1907.[67] How could the principle of sovereign equality and, in particular, the amour propre of the smaller states be reconciled with the realist imperatives of great power hegemony?[68] In each case, the great powers attempted to assuage the feelings of the ‘jealous’ small powers. At the Congress of Vienna, the big four co-opted France, involved selected small powers in committee deliberations and adopted Castlereagh’s scheme of ensuring that legal hegemony was introduced gently or surreptitiously. At The Hague Peace Conference in 1907, the small powers rejected Scott’s rotation scheme for the constitution of an international court of justice and instead advocated a strong form of absolute sovereign equality (with every state represented on the Court) that rendered centralised decision-making rather problematic.[69]
By the time of San Francisco, developments at Versailles and the backlash against legalism engendered by the Second World War and the ‘failure’ of the League of Nations, meant that the time was more propitious for the imposition of some form of legalised hegemony. Nevertheless, the allies remained wary of forcing such a system on the other states. Weighted voting on the basis of material power was rejected on precisely these grounds. The United States State Department, for example, discussed the possibility of plural voting ‘but it was agreed that the smaller states would strenuously resist any unequal voting methods in the Conference’.[70] Such a system was thought to be too transparent a departure from sovereign equality and had provoked a powerful reaction at The Hague. Instead, the large allied powers preferred an ‘indirect’ form of legalised hegemony. The United States Staff Charter, developed in anticipation of the San Francisco meeting, was explicit on this point:
Such a system [weighted voting] would provoke the traditional resistance of a majority of states to overt denials of the equality of states, and it would be difficult to secure general support for any index of power with its corresponding system of voting. While weighted voting may well be utilised in the organisation of certain technical agencies, it constitutes too direct a violation of the traditional system to be proposed for the plenary body of the United Nations. It was considered more satisfactory to provide for the special position of the larger states in the United Nations by more indirect means, particularly through the composition of the Council and the voting privileges accorded states with indeterminate tenure on the Council.[71]
This document argued for a Council in which the small powers were to be represented so as to downplay the appearance of hegemony. Other changes were more cosmetic but nonetheless reflected great power sensitivities, for example, the term ‘members with indeterminate tenure’ replaced ‘permanent member’ in relation to Security Council membership.[72] Britain also wanted more small states represented on the Council ‘in order to prevent criticism that the major powers wanted to rule arbitrarily’.[73]
A Draft Four Power Agreement circulated by the United States State Department in 1943 tried to formulate a proposal that would satisfy Roosevelt’s desire for a measure of legal hegemony and the concerns of the small powers. The four policeman model was inserted into a scheme in which the principles of equality of nations and universality were central. However, this draft was modified after discussions at the State Department because of a belief that ‘equality’ implied a ‘factual equality’ incompatible with collective security. As a compromise, ‘sovereign equality’ replaced ‘equality of nations’ on the basis that sovereign equality was a principle more consistent with the dominance of the great powers.[74] All of this reflected Roosevelt’s preference for a system in which hegemony dominated in one sphere (the security arena) while a form of egalitarianism was permitted to operate in the economic and social zone.[75]
Understandably, in the circumstances, the small nations approached the San Francisco conference in a state of suspicion and anxiety. The Mexican response to the Dumbarton Oaks conversations exemplified this mood. The Mexicans were concerned that the Dumbarton Oaks proposals deprived the organisation of its democratic basis by limiting the powers and functions of the General Assembly. Such a limitation violated the principle of sovereign equality ‘theoretically consecrated’ in the Dumbarton Oaks proposals.[76]
Nevertheless, even among the small powers, there was an appreciation of the need to find some reconciliation between the two principles of sovereign equality and legal hegemony in the UN Charter. The Uruguayan government issued a statement in 1944 that attempted to find just such a middle ground. At the same time as calling for an international league ‘in which there are no differences of prerogatives and treatment among its members … with identical rights’, the Uruguayans also accepted that the great powers, because of the weight they had carried in the war, should assure themselves of places on an executive council during a transition period.[77]
Ultimately, there was agreement on three things. First, sovereign equality was to be a cornerstone of the new international system. Second, departures from the principle or, at least, deviations from the strict implementation of the principle, would be necessary to give the new international security regime some teeth. Third, these departures would have to be justified on the basis either of competing legal principles or by reference to overwhelming political necessity.
Procedurally, the conference at San Francisco was a great power affair in one respect: it was sponsored by the great powers themselves rather than in the name of an international organisation.[78] However, in other respects there was an egalitarianism or democracy that had been missing at, say, Versailles or Vienna. Though the big five held consultations throughout the conference, the adoption process was much more egalitarian than at Versailles, where the great powers controlled the steering committee and acted as gatekeepers for any proposals. At San Francisco, proposals circulated more freely and a two-thirds majority was required before proposals could be adopted. This meant that the great powers were obliged to convince, or at least cajole, other states into accepting their schemes (embodied in the Dumbarton Oaks proposals) for post-war international organisation.[79] It also meant that the small powers were sometimes able to prevail on relatively important matters.[80] Offsetting this was the fact that only the great powers were represented in each of the San Francisco committees and sub-committees.[81]
In substance, most of the debate concerning sovereign equality/legal hegemony revolved around the Security Council and its powers. It was assumed that the principle of sovereign equality would appear in a prominent place in the Charter. The sole issue remaining was to what extent it would be compromised by or mediated through the entrenchment of great power authority. The small and middle powers expended virtually all their energies in Commission III (on the Security Council) in an attempt to dilute the effects of legal hegemony. The form of constitutional organisation envisaged at Dumbarton Oaks was heavily weighted in favour of the idea of executive action on the part of an international elite composed of the great powers and it was this aspect of the Dumbarton Oaks proposals that came under heaviest scrutiny in the various committees at San Francisco.
Unease towards the Dumbarton Oaks proposals was reflected in a number of counter-proposals. In general, the most visible advocates of this egalitarian revisionism were the ‘Western’ middle-powers (notably the Netherlands and Australia) and the smaller Latin American countries such as Peru or Ecuador, whose contributions were very much in the spirit of Rui Barbosa[82] at The Hague and the special Latin approach to equality.[83]
These counter-proposals were organised around three different strategies: the attenuation of the veto power itself, the dilution of great power hegemony within the structure of the Security Council (including the review of permanent membership, the status of that membership and the number of non-permanent members) and the subjection of Security Council action to either procedural or normative constraint.[84]
Now, I think if we start from the basis of the inevitability of the veto even the most orthodox person must agree that it is a realist approach, and we are told we must be realists.[85]
Voting, of course, was a matter of intense debate among delegates and a rich array of amendments to the Dumbarton Oaks proposals were suggested. Inevitably, there were those states that wished to do away with the veto altogether.[86] However, the majority of the smaller powers accepted the need for the special voting rights of the great powers in the Charter and focused their energies on softening the effects of the veto. Some states, for example, sought to re-define the veto power by broadening the category of procedural matters that could be carried by a simple majority. The Australian delegation reluctantly accepted the need for a veto but argued that by removing its application from settlement of disputes (Chapter VI), its use could be limited to cases where the Security Council was taking enforcement action.[87]
This was a position shared by many other states.[88] The Australians also proposed that the veto power should be suspended in cases involving the amendment of the Charter.[89] The Egyptian delegate argued that action under Chapter VII ought to be permissible when four of the five permanent members wished it.[90]
The response of the great powers was negative. The greatest fear seemed to be that any loss of veto power would have the potential to compromise the special position of the great powers altogether. There was a particular concern that a move to majority decision-making in Chapter VI would carry over too readily into Chapter VII and that a member of the P5 could become embroiled in a dispute resolution process against its will which would then become an enforcement action. Justifying the veto, per se, the British delegate argued that the veto was just an extension of the unanimity requirement under the League of Nations Covenant but with the veto withdrawn from the minor or ‘secondary’ powers.[91] The British delegate agreed that while the veto rule: ‘may be considered to be unequal treatment … I would like to submit that it is not entirely unreasonable’.[92] The British also argued that the special position of the great powers, while not democratic or egalitarian, was necessitated by the nature of international life:
Well, we in my country are inclined sometimes to boast of our democracy … but we can only justify that boast by periodically introducing and passing redistribution bills adjusting the constituencies to a shift in population …You can’t do that in the international field. You have to accept the inequalities you find, and you can’t alter them in any rough and ready way.[93]
This was a classic statement of the realist belief in the disjunction between a domestic zone of constitutionality and democracy and an international zone of hierarchy and anarchy. It was this view that prevailed with little modification.
Alongside the attempt to limit the matters over which the veto could be exercised, there was also a debate about the membership of the Security Council not unlike the one that took place over the composition of the Permanent Court of Arbitral Justice at The Hague. Once again a number of schemes were suggested. Liberia proposed membership based on the alphabet, a special position for middle powers was suggested by Holland, India preferred a criterion based on population (taking up China’s arguments from 1907) and Australia wanted re-election for non-permanent members.[94] The Egyptians proposed an imaginative scheme, which involved an executive based on regional zones corresponding to ‘electoral constituencies’.[95] The UK wanted contributions to security to be the main criterion. The Latin Americans insisted on a special seat to be reserved for a state from that region.[96] Some of these proposals were special pleading. These proposals were summarised in the Report of the Rapporteur of Committee III/1 on Activities of Committee III/1 Structure and Procedures for the Security Council. In that report the Committee listed the various criteria suggested in discussions:
full equality of all member nations, geographical distribution, population, contributions … guarantees concerning the active defense of the international order … combination of elements including population, industrial and economic capacity, future contributions in armed forces and assistance pledged by member states.[97]
The small powers were pushing for a combination of ends. They wanted an increase in the number of non-permanent members in order to loosen the hold of the great powers on decision-making in the chamber and some form of special representation for discrete categories of regional powers.
Alongside attempts to modify the membership of the Council, there were proposals seeking to render the membership of the P5 less permanent. A number of delegations proposed that permanent membership be subject to review after ten years (see above). Legalised hegemony was to operate on a flexible basis. It was pointed out that the identity of great powers was subject to serious fluctuation and that any entrenchment of specific great powers in the Charter would render it an anachronism. The Mexican position, discussed above, questioned the very validity of permanence and suggested replacing it with a structure in which some states occupied a seat on a semi-permanent basis.[98]
The Brazilians supported the idea that the Security Council should begin in hegemonic mode but should become more ‘democratic’ once the transition period was over.[99] This came to be associated with another unsuccessful proposal that the Security Council’s mandate should be reviewed after eight years or ten years.[100] There was also a genuine concern about the extent of the Security Council’s transitional powers in the Charter. It was believed that great power hegemony might operate for a significant period outside the parameters of the already expansive Charter system though this fear proved unfounded.[101] Again, the great powers prevailed and the current membership of the P5 remains unchanged since 1945.
Committee I of Commission III was given the task of determining the structure of the UN Security Council and it was during these meetings that a number of further attempts were made to limit the effect of hegemony in the Charter. Most of these efforts revolved around the important question of whether Council decisions could be constrained by any principles of law and whether there could be any review of Council decisions under Chapter VII by other bodies (notably the General Assembly or the International Court of Justice (ICJ)). These two matters were, of course, linked, since the idea of normative constraint presupposed some form of review.[102 ]The most radical of these proposals focused on the potential of the General Assembly as a body capable of supervising the Security Council and approving of its actions.[103] The Venezualans argued for a ‘better balance’ between the General Assembly and the Security Council through mechanisms that would allow the General Assembly to act ‘as a control on some decisions of the Council’.[104] Other delegations went further, suggesting that the essence of the relationship between the General Assembly and the Security Council was one of delegation from the plenary body to the executive.[105] For the Costa Ricans, the General Assembly’s role was to safeguard the principles and purposes in relation to the Security Council.[106]
Other states were content to outline the normative limitations on Security Council action either by suggesting that Council action be limited by the purposes and principles of the Charter or by the operation of a rule stating that the Security Council should not ‘establish or modify principles or rules of law’.[107] As a corollary the possibility that the Security Council be required to act in cases of aggression was mooted. This would have left the Council free to determine the existence of lower levels of violation (threats and breaches of the peace) but would have made action automatic in cases of aggression. Committee III/1 rejected this proposal on the time-honoured grounds that a definition of aggression could not be agreed upon.[108] On the other hand, as we have seen, there were those who wished to diminish the effect of the veto when the Council was acting in its quasi-judicial mode. The idea here was to distinguish action under articles 41 and 42 from determinations under article 39 and Chapter VI. This was the thrust of the Netherlands proposal and the Australian position discussed above.[109]
Another dispute revolved around the status of ‘principles and purposes’. Could not these be written in such a way as to bind or circumscribe action under Chapter VI or VII? This too was rejected by the Conference with the big five arguing that this specification would open a loophole for challenging any particular action of the organisation as being unjust. The Security Council, they emphasised, should be able to prevent fighting as a policeman does, deferring inquiry into the rights and wrongs of a situation until late.[110]
In the end, the small states were successful in modifying the Dumbarton Oaks proposals in respect of the General Assembly’s right to be kept abreast of all questions being dealt with by the Security Council (article 12(2)),[111] but virtually every other modification was rejected by the P5. Article 24 contained a reference to the principles and purposes of the UN but at the UN Conference on International Organisations, a decision was made ‘to leave to the Council, the entire discretion as to what constitutes a threat to the peace …’.[112] The middle and small powers were left with the forlorn hope that the P5 would treat the veto as a ‘sacred trust’[113] to be wielded sparingly and only in the interests of the international community. There was a recognition that special privileges were at variance with the principle of sovereign equality ‘from a democratic, legal and theoretical point of view’ but that these privileges were politically necessary.[114]
As a result, hegemony is entrenched in the resultant institution. The Security Council’s powers are ‘generous’, especially in the field of peace and security where it has primary responsibilities.[115 ] Chapter VII outlines a procedure that offers the Council a high degree of latitude in defining its own powers to act either forcibly or non-forcibly.[116] Each member of the P5 wields a significant amount of power within the system.[117] Most of this power is what might be called ‘negative power’, permitting P5 states to prevent certain action being taken by the UN on a range of issues. So, for example, a permanent member of the Security Council is able to veto any amendment of the Charter, prevent the appointment of a candidate for the Secretary-General’s position and restrict efforts to have states admitted or expelled from the organisation.[118] These are not merely theoretical powers. P5 states have been active in ending the ambitions of sitting Secretary-Generals, for example, the United States failure to support Boutros Ghali’s quest for a second term, and have regularly vetoed admission of states to the UN system.[119] The requirement that P5 states all agree on any fundamental reforms of the UN system makes the various efforts to change the composition of the P5 highly problematic.[120 ] The veto, then, is a ‘central norm of decision-making in the UN’.[121]
It is in the area of collective security that the operation of legal hegemony is most remarkable.[122] A P5 state can veto any enforcement action by the Security Council or by regional organisations, though by a customary law modification of the Charter neither an abstention nor absence is any longer regarded as a de facto veto.[123] The effect of the collective security provisions is to entrench a form of sovereign inequality. It is not just that the great powers enjoy special powers in the realm of enforcement and institutional management but that their position in relation to the former has an effect on their sovereign power vis à vis other states.[124] Chapter VII of the Charter, in effect, grades sovereignty on the basis of degrees of immunity or territorial integrity. The P5 enjoy complete immunity from the enforcement jurisdiction of the UN while other states are subject to increasingly intrusive doctrines of intervention.[125] While the great powers could argue that this was simply an application of the unanimity principle found in a number of international bodies prior to the Charter, it resulted in an inequality in the Charter because in other respects, and for other states, majority rule was now the accepted procedure in international organisations.[126] The unmodified unanimity procedure was a rule of equality. As Brierly remarked in 1944, the unanimity rule (dominant at The Hague) means that a state could ‘refuse to have its own rights or duties changed’ whereas the veto permits a member of the P5 to ‘debar other states from introducing changes which are only to affect itself’.[127] This is the case for all actions under article 25 and most obviously in regards to the amendment procedures under articles 108 and 109. In addition, as Fassbinder has argued, the veto has enormous influence in cases where it is never used by virtue of its utility as a bargaining tool.[128]
If the small and middle powers were unsuccessful in their attempts to constrain the Security Council, they were more successful in expanding the domain of the General Assembly. The egalitarian chamber is putatively the General Assembly though even this equality has highly unequal effects if approached from the perspective of say, fairness to individuals or representation of non-governmental entities.[129]
On the inter-state plane, though, there is little doubt that the General Assembly is the ‘most representative organ of the United Nations’.[130] All members of the UN are represented on the General Assembly and there are no special privileges for great powers.[131] Article 9(2), specifying the number of delegates permitted to sit in the General Assembly, also has its roots in an egalitarian sensibility. There was a concern, at San Francisco, that the large states would swamp the small states with their larger number of delegates at the General Assembly and ‘wound their [the small states]’ delicacy’.[132]
Of course, the representative nature of the General Assembly does not in itself demonstrate that the UN is in any way an egalitarian organisation. Indeed, a typical image of the UN projects the idea of a powerful core Security Council and an irrelevant talking shop General Assembly.[133] On this reading, the mere presence of a weak General Assembly would barely detract from the hegemonic nature of the overall organisation.
This interpretation of the General Assembly’s role, though, misrepresents both its constitutional power and its symbolic impact. In fact, the General Assembly possesses quite extensive powers even if it cannot legislate as such.[134] It is from the General Assembly that a number of other UN organs derive their powers.[135] The Trusteeship Council and the Economic and Social Council report to the General Assembly and take instructions from that body and both the Security Council and Secretary-General are obliged to provide annual reports of their activities to the General Assembly for consideration.[136] The International Law Association is mandated to complete certain tasks at the behest of the General Assembly.[137]
Then there are the various functions of the Assembly. These include the peaceful settlement clauses of the Charter permitting the Assembly to initiate studies, promote co-operation and ‘recommend measures for the peaceful adjustment of any situation, regardless of origin’.[138] Finally, there are the elective and financial functions.[139] The General Assembly has control over the organisation’s budget and it elects its own members on a recommendation from the Security Council as well as the non-permanent members of the Security Council and the members of the Economic and Social Council.[140]
Given all this, it would be peculiar to adopt the position that the UN is overwhelmingly hegemonic in structure. Indeed, one might claim that the significant reforms to the system have been in the direction of sovereign equality or, at least, democratisation. There are more states than previously represented at the Security Council, more states on the Economic and Social Council and a general diluting of the power of the P5.[141] Even in the Security Council, the P5 cannot act without the support of at least three non-permanent members (this is sometimes referred to as the sixth veto). The early history of the UN is marked by regular attempts, some successful, on the part of the General Assembly to accrue more power over areas of international regulation (security, political matters) and specific issues which might have seemed to fall within the jurisdiction of the Security Council.[142]The General Assembly has also used its power to seek advisory opinions from the ICJ to impose limits on the latitude of the P5 in membership decisions, in clarifying the legality of peace-keeping and in assessing the legality of nuclear weapons.[143] Even in cases where the San Francisco delegates refused to adopt a specific mechanism, the General Assembly has used its extensive powers under article 13 to broaden its powers. The now-routine practice of having the General Assembly submit multilateral treaty proposals to the community of states is an example of this.
Sovereign equality is also preserved in relation to the formal weighting of votes at the UN. It is ‘formal’ because, obviously, the institution of the veto adds significant weight to the negative vote of a member of the P5. The principle of one state-one vote has never been departed from in the procedure of a universal political organ. Article 18(2) of the Charter was adopted with little dispute.[144] In the decades immediately following the adoption of the Charter, a number of suggestions were made concerning the calibration of votes. The most politically weighty of these proposals came from John Foster Dulles,[145] who argued for voting strength to be allocated on the basis of power.[146] Others asserted that voting privileges should correspond to financial contributions (along the lines of the International Monetary Fund and the World Bank) while another group worried about the democratic deficit in giving one vote to each state.[147] None of these proposals resulted in any modification of the sovereign equality principle as it applied to voting.
Finally, of course, there are the references to equality in the Charter itself. The equality of states was regarded as a basic principle of the new international organisation. Articles 2(1) and 78 make this explicit while articles 1(2) and 55 indicate that promoting the equal rights of peoples is a purpose of the UN.[148 ] These articles clearly do not preclude organisational hierarchies but they do confirm that the UN continues to be based on some idea of state sovereignty and an insistence that ‘UN organs must also treat states equally’.[149]
In the end what was produced in San Francisco was a dialectical scheme in which an attempt was made to satisfy the imperatives of hegemony and the requirements of equality. None of the views expressed at the beginning of this paper is entirely accurate: Greig’s because it overstates the weight of legalised hegemony; Goodrich’s and Hambro’s because they do the opposite; and Bleckmann’s because he is wrong to suggest that hegemony can be consigned to some non-legal zone leaving a pristine area of equality-based legal regulation (and because the distinction between the political and legal features of the Charter is unsustainable).[150]
At San Francisco, the drafters of the Charter succeeded in accommodating equality and hegemony where the delegates at The Hague failed and in a manner not even attempted at Vienna. It is true that on the central question of Security Council privileges, the great powers could not be budged. Famously, the small powers were faced with the choice of a Charter with great power privilege or no Charter at all.[151] However, in other respects, the sovereign equality of states was bolstered by the Charter. The main plenary body, the General Assembly, became a principal egalitarian organ. Voting and representation was to be equal in the decision-making practices of this body. While the existence and constitution of the Security Council was a reflection of the hegemonic imperative in international affairs, even here it must be remembered that the great powers had only one vote each (albeit one capable of being exercised as a veto). The principle of weighted voting had been rejected as a breach of the norm of sovereign equality.[152]
Is the Charter, then, a reconciliation of the two principles? The Charter creates an international order in which the sovereign equality of all states was adapted to the prerogatives of the great powers.[153] It represents neither the vindication of sovereign equality (in spite of the references to the principle in articles 2(1) and 55) nor its passing (despite Chapter VII and article 25). Instead, sovereign equality needs to be understood as a raft of principles, some of which survive the creation of semi-centralised constitutional orders, others of which are severely compromised as a consequence. In the case of the Charter, a thin formal equality persists in, for example, the rules surrounding the ICJ and the acceptance of the idea that the organisation ‘in deciding on disputes between its members must act impartially, unmoved by considerations of power’.[154] What might be termed the existential equality of states is protected by a series of non-intervention provisions and by a general commitment to independent statehood and organisational pluralism.[155] Legislative equality, the equal power to make international law, meanwhile, finds some measure of protection in the General Assembly’s powers but is severely compromised in the governing principles of the Security Council.[156] Ultimately, the Charter enacts a weakened form of legal equality alongside a mildly constrained constitutional hegemony.[157]
[∗] Senior Lecturer, Law Department, London School of Economics and Political Science. This article forms part of a larger work, Unequal Sovereigns: Great Powers and Outlaws in the International Legal Order, which has been submitted to the University of Michigan in partial fulfilment of the requirements of the SJD degree.
[1] See two recent essays: G Simpson, ‘On the Magic Mountain: Teaching Public International Law’ (1999) 10 European Journal of International Law 70 (discussing legalist, realist and romantic approaches to teaching public international law); G Simpson, ‘The Situation on the International Legal Theory Front: The Power of Rules and the Rule of Power’ (2000) 11 European Journal of International Law 439 (discussing the relationship between international law and international politics). See also, G Simpson, ‘The International Criminal Court and the Politics of Sovereignty’ (1999) 5 University of California (Davis) Journal of International Law and Policy: Symposium on International Criminal Law 195.
[2] This hardly does justice to the nuances of sovereign equality. For a classic account see E Dickinson, The Equality of States in International Law (1918).
[3] G Simpson, ‘Two Liberalisms’ (2001) 12 European Journal of International Law 537.
[4] For a definition emphasising this ‘social’ aspect, see H Bull, The Anarchical Society (1977) 202-230.
[5] Eg, the position of the People’s Republic of China prior to its admission to the Security Council.
[6] D W Greig, International Law (2nd ed, 1976) 709. Greig is not alone. Others, eg, P E Corbett, Law and Society in the Relations of States (1951) 264-265 wrote that the Charter contained merely a ‘salute’ to the principle of sovereign equality. Bengt Broms calls it ‘an act of homage’ with little legal significance: B Broms, The Doctrine of Equality of States as Applied in International Organizations (1959) 166.
[7] L M Goodrich and E Hambro, Charter of the United Nations: Commentary and Documents (2nd ed, 1949) 7.
[8] A Bleckmann, ‘Article 2(1)’ in B Simma (ed), The Charter of the United Nations: A Commentary (1994) 77, 89.
[9] Of course, these positions hardly exhaust the range of possible attitudes towards the UN. The UN system is conceptualised in radically different ways. For some, it represents either a move towards world government or the indefinite postponement of that fantasy. For others, it is viewed as a workable compromise between balancing power and creating just order (though this belief was tested in the post-war period of great power domination and intransigence). Yet another group saw it as a return to the disastrous institutional utopianism of the inter-war period. For a general discussion, see A Roberts and B Kingsbury, Presiding Over a Divided World: Changing UN Roles, 1945-1993 (1994) ch 1. Some of these attitudes are drawn out in an argument presented by Anne-Marie Slaughter when she articulated the underlying tension between realist and legalist images of world order in the foundations of the UN system: A-M Slaughter, ‘The Liberal Agenda for Peace: International Relations Theory and the Future of the United Nations’ (1994) 4 Transnational Law and Contemporary Problems 377. My focus is conceptually narrower, however, than that of Slaughter. It is narrower in the sense that I do not attempt to trace the lines of these splits and compromises through a wide range of UN doctrines and institutional structures. Instead, I focus on the debate over equality and, in particular, sovereign equality. This debate takes place and is resolved most obviously in the working principles of the UN’s two political organs, the General Assembly and the Security Council. The intention is to tease out the arguments about equality and the impact they have on the resultant structures of order.
[10] With some exceptions, eg, arts 23 and 27 of the UN Charter were amended in 1965 (providing for an enlarged Security Council).
[11] I remain focused on the workings of the international system and particularly the UN within that system. So, there is no discussion of sovereign equality and legal hegemony in, eg, the Council of Europe or other regional organisations. For an interesting discussion see Greig, above n 6, 717-23.
[12] For reform proposals see B Boutros Ghali, Supplement to An Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the 50th Anniversary of the United Nations, UN Doc A/50/60-S/1995/1, 1-24 <http://www.un.org/Docs/SG/agsupp.html> G Picco, ‘The UN and the Use of Force: Leave the Secretary General Out of It’ (1994) 73 Foreign Affairs 14; S Touval, ‘Why the UN Fails’ (1994) 73 Foreign Affairs 44; A Orford, ‘A Radical Agenda for Collective Security Reform’ (1995) Proceedings of the Australian and New Zealand Society of International Law, Third Annual Meeting 71; G Evans, ‘ “Restoring Peace” and “Enforcing Peace”’ in Cooperating for Peace: The Global Agenda for the 1990s and Beyond (1993) 89, 133. For an interesting discussion of the cyclical nature of ‘reform’ see D Kennedy, ‘A New World Order: Yesterday, Today and Tomorrow’ (1994) 4 Transnational Law and Contemporary Problems 329.
[13] This group made up the majority of already existing sovereign states. Excluded were the axis powers, states that had supported the fascists (eg, Argentina) and states whose government remained contested (eg, Poland).
[14] The Dumbarton Oaks meetings were a series of preliminary negotiations among the great powers. The discussions at Dumbarton Oaks focused almost entirely on security issues and, in particular, the role of the great powers in policing the international order.
[15] These are discussed below in the section ‘At San Francisco: The UN Conference on International Organisation’.
[16] Suggestions presented by the Netherlands Government Concerning the Proposals for the Maintenance of Peace and Security Agreed on at the Four Powers Conference of Dumbarton Oaks as Published on October 9, 1944, January 1945, Doc 2 G/7(j), III United Nations Conference on International Organisations (UNCIO) 306, 315 (emphasis added).
[17] This story is taken up in ‘Two Liberalisms’, see above n 3.
[18] See C Eagleton, ‘The Charter Adopted at San Francisco’ (1945) 39 The American Political Science Review 934, 936. See, too, H V Evatt, The United Nations (1948) 15. For a discussion of the meetings in Metternich’s apartment see B Gooch, Europe in the Nineteenth Century: A History by Brison D Gooch (1970) 57.
[19] See the discussions at Vienna in 1814 and at Versailles in 1919.
[20] See Dumbarton Oaks, Washington Conversations on International Peace and Security Organization. 7 October 1944 <http://www.ibiblio.org/pha/policy/1944/441007a.html>.
[21] United States Department of State, ‘Report on the Crimea Conference: Message of the President to Congress’ (1945) 12 Bulletin 321; R Wedgwood, ‘Unilateral Action in the UN System’ (2000) 11 European Journal of International Law 349, 350.
[22] R Russell, A History of the United Nations Charter: The Role of the United States 1940-1945 (1958) 98. In fact, Roosevelt’s idea was to have two forms of collective security, one aimed at minor transgressors to be dealt with through the quarantine method (sanctions), the other by the full-scale collective enforcement method (against larger states). The problem of Security Council members breaching the peace was not raised at Teheran because the United States was keen to get the Union of Soviet Socialist Republics involved at this stage, ibid 156.
[23] See H Notter, Postwar Foreign Policy Preparation, 1939-1945 (1949) 611-619.
[24] Ibid 103.
[25] United States Acting Secretary of State, 1940.
[26] See Slaughter, above n 9; G Kennan, Memoirs 1925-1950 (1968).
[27] See Russell, above n 22, 241 and Goodrich and Hambro, above n 7, 199.
[28] British Minister of Foreign Affairs, 1940-1945, 1951-1955.
[29] Russell, above n 22, 146. As a United States State Department Memo said prior to the Dumbarton Oaks meetings: ‘This principle of equality should not extend, however, to the field of enforcement, in which the states having greater responsibilities should have correspondingly greater powers’, quoted in Russell, above n 22, 405.
[30 ] Fourth Meeting of Commission III, 22 June 1945, Doc 1149 III/11 XI UNCIO 103, 108.
[31 ] Ibid 109. Note here the genuine belief on the part of the great powers that they had not sought this position but acquired it as a burden or duty ‘imposed’ on them by the international community.
[32] Russell, above n 22, 650.
[33] There is, of course, one very clear inequality of responsibility in the apportionment of the expenses of the organisation among member states. This is relatively uncontroversial now (legally at least) but when the first scale was released the United States baulked at its 50 per cent allocation on the basis that the UN was an organisation of ‘sovereign equals’: Goodrich and Hambro, above n 7, 184.
[34] The Position of the Government of Uruguay Respecting the Plans of Postwar International Organisation for the Maintenance of Peace and Security in the World, 28 September 1944, Doc 2 G/7(a), III UNCIO 26.
[35] D Ninic, The Problem of Sovereignty in the Charter and Practice of the United Nations (1970) 130.
[36] I leave aside here arguments relating to the legal justification for the action as collective self-defence under art 51 of the Charter or as some inherent right to self-defence. See R Higgins, Problems and Processes: International Law and How We Use It (1994).
[37] The Congress of Vienna 1815.
[38] See Treaty of Versailles 1919 in Treaty Series No 4 (1919) (Cmd 153).
[39] The Council of the League of Nations was able to recommend enforcement measures but it could not compel members to take action in the way envisaged by the UN Charter.
[40] N Bentwich and A Martin, A Commentary on the Charter of the United Nations (1950) xi. The League was dissolved in April 1946 at its final meeting. This meant that the existence of the League of Nations and the UN actually overlapped for a short period.
[41] Declaration by the United Nations, 1 January 1942 (Washington Conference) (1941), A Decade of American Foreign Policy: Basic Documents, 1941-49 (1950).
[43] At Vienna in 1815, the smaller powers had merely decorated the proceedings while the great powers met in private to pre-arrange the outcomes of the Congress.
[44] Eg, the text of art 27 is virtually unchanged from that agreed upon at Yalta: Bentwich and Martin, above n 40, xviii.
[45] The question of what to do about enemy states who are also great powers arose more acutely at Vienna where, arguably, France, though an enemy state, remained a great power in defeat. At San Francisco, both Germany and Japan were severely weakened states and demoralised societies. There could be no question of inviting them into the inner sanctum of the Security Council. Of course, the inevitable renaissance of these powers meant that these questions had simply been left to a later date. At Vienna, France was admitted to the great power councils towards the end of the Congress only as a result of a number of successful power-plays by Talleyrand and because France was viewed (by the British and Austrians) as a useful player in maintaining the balance of power against Russia and Prussia. The rehabilitation of Germany and Japan can be explained on similar grounds.
[46] Russell, above n 22, 128.
[47] Ibid 103.
[48] The Soviet phase lasted from 1 August to 28 September 1944 and the Chinese phase from 29 September to 7 October 1944.
[49] Interestingly, the Americans also believed that the presence of China would deflect criticism that the UN was to be a Western-controlled body: Russell, above n 22, 128.
[50] Russell, ibid 272. The Anglo-French alliance and the force of de Gaulle’s personality enabled France to be admitted to the inner sanctum in 1945 after its liberation or when it ‘recovered its greatness’: Russell, ibid 114.
[51] Russell, ibid 199.
[52] Attempts were made by the smaller powers to have the permanent members unnamed in the Charter to take into account changing circumstances. Unsurprisingly, this was rejected by the great powers.
[53] Opinion of the Department of Foreign Relations of Mexico Concerning the Dumbarton Oaks Proposals for the Creation of a General International Organisation, 23 April 1945, Doc 2 G/7(c), III UNCIO 54, 111.
[54] Ibid 117.
[55] There was still a need to determine how other states in the Security Council were to be chosen. Britain suggested military contributions and the Soviet Union, general contributions. The United States feared that this would lead to three levels of states: the P5, those with military power, and others (with these others being effectively excluded from the council should such a proposal be successful). In the end, art 27 embodied a principle by which non-permanent members would be chosen on the basis of regional representation and contributions. (In practice, this operates through a system of rotation and political preference rather than ‘merit’.) But see the inequalities of representation in the General Assembly caused by Byelorussia’s and the Ukraine’s admission to the UN as member states, as well as, more debatably, the premature admission of some of Britain’s former colonies.
[57] The Moscow Declaration 1943, A Decade of American Foreign Policy: Basic Documents, 1941-49 above n 41.
[58] Russell, above n 22, 110.
[59] Opinion of the Department of Foreign Relations of Mexico, above n 53, 106.
[60] United States Secretary of State, 1933-1944. Served as a member of and senior adviser to the American delegation to the United Nations Conference in San Francisco in 1945.
[61] Opinion of the Department of Foreign Relations of Mexico, above n 53, 106.
[62] Goodrich and Hambro, above n 7, 7.
[63] The Teheran Conference, 28 November to 1 December 1943, Declaration of the Three Powers, 1 December 1943, A Decade of American Foreign Policy: Basic Documents, 1941-49 (1950).
[64] Treaty of Alliance between the UK and the Soviet Union and Iran, 29 January 1942, Cmnd 6335, Persia No 1, 2, 5.
[65] Observations of the Government of Venezuela on the Recommendations Adopted at the Dumbarton Oaks Conferences for the Creation of a Peace Organisation, 31 October 1944, Doc 2 G/7(d)(1), III UNCIO 189.
[66] Great Britain was represented by Lord Castlereagh at the Congress of Vienna in 1815.
[67] James Scott, a United States Legal Adviser at the Second Hague Peace Conference, was responsible for developing a plan for a permanent international court that would meet the needs of the great power (for representation in keeping with their status) and the claims of the smaller powers (to sovereign equality in the composition of the Tribunal).
[68] H V Evatt, the Australian delegate, noticed this aspect of sovereign equality when he remarked towards the end of deliberation at San Francisco that ‘the smallest nations had a sense of dignity and self-respect which was really the basis of their international life’: Fourth Meeting of Commission, above n 30, 129.
[69] A Ross, A Textbook on International Law (1947).
[70] Russell, above n 22, 353.
[71] Quoted ibid 357. By 1944, the Moscow Declaration had led to the proposal to establish the Interim Consultative Security Commission (ICSC).
[72] Ibid 241.
[73] Ibid 272.
[74] Ibid 111.
[75] Ibid 206.
[76] Dumbarton Oaks Proposals, art 1, ch 2; Opinion of the Department of Foreign Relations of Mexico, above n 53, 107.
[77] The Position of the Government of Uruguay, above n 34, 26.
[78] France, yet to be accorded status among the great powers, declined the invitation to become one of the sponsoring powers.
[79] Of course, the P5 flourished the ultimate threat towards the end of the Conference in hinting that they would cease to participate if there was not general agreement on the security provisions and veto power. Senator Connolly gave this threat a graphic reality when he tore up the proposed Charter in order to demonstrate what a vote against the veto meant. UNCIO II, 493.
[80] Goodrich and Hambro, above n 7, 17; Broms, above n 6, 160; L M Goodrich ‘Pacific Settlement of Disputes’ (1945) 39 The American Political Science Review 956, 958.
[81] Broms, above n 6, 159. The San Francisco Conference resembled the Vienna Congress in the sense that all the important work was completed in committees and sub-committees. A number of important committees handled the procedural aspects of the Conference while the substantive issues were under consideration by four commissions and within these 12 sub-committees.
[82] Barbosa was elected Judge of the Permanent Court of International Justice in 1921. He represented Brazil at the Second Hague Conference in 1907.
[83] Barbosa had been the most vehement and eloquent advocate of absolute equality in the discussions concerning the PCIJ at The Hague in 1907. See eg, J Brown Scott, The Hague Peace Conferences (vol I, 1909) 459.
[84] It is remarkable how similar these ‘reform’ proposals are to some of the current schemes for redesigning the Security Council to bring it into line with international ‘realities’. See above n 10.
[85] Statement of Questions by the Delegate of New Zealand and of Replies by the Delegate of the United Kingdom at Ninth Meeting, 17 May 1945, Doc WD3, XI UNCIO 317, 319. See Statement of the Delegate of the United Kingdom, ibid 323.
[86] Fifth Meeting of Commission III, 22 June 1945, Doc 1150 III/12, XI UNCIO 163.
[87] Debates occurred over whether the veto applied to both Chapters VI and VII; to both recommendations and decisions; to procedural matters or substantive matters; and to all actions or be excluded from those involving superpowers. Whatever the discussion as Senator Vandenberg wrote, ‘this veto bizness (sic) is making it very difficult to maintain any semblance of the fiction of sovereign equality among nations’: see Russell, above n 22, 725-26, also 717-8; A H Vandenberg Jr (ed), The Private Papers of Senator Vandenberg (1952) 200.
[88] Fifth Meeting of Commission III, above n 86, 165.
[89] Verbatim Minutes of Fourth Meeting of Commission III, above n 30
, 123. H V Evatt, the Australian delegate, justified this approach by arguing that Chapter VII powers ought to be distinguished from Chapter VI duties. Only the former were susceptible to the use of the veto, ibid 108. The great powers themselves seemed to be leaning at this point in the direction of allowing discussion regardless of the objection of a P5 member but were not willing to go further and permit the full menu of conciliation measures to be recommended, ibid 124. The great fear on the part of the P5 seemed to be that allowing changes in voting in Chapters VI and VII might lead to an unstoppable chain of events in which the loss of veto power at the beginning of the chain would lead to its elimination at the end.
[90 ] Amendments to the Dumbarton Oaks Proposals Presented by the Egyptian Delegation, 5 May 1945, Doc 2 G/7(q)(1), III UNCIO 453, 458.
[91] Russell, above n 22, 716.
[92] Ibid 717.
[93] Statement of Questions by the Delegate of New Zealand and of Replies by the Delegate of the United Kingdom at Ninth Meeting, above n 85, 320.
[94] Russell, above n 22, 648.
[95] Suggestions of the Egyptian Government on the Tentative Proposals of Dumbarton Oaks under Examination at the United Nations Conference at San Francisco, 16 April 1945, Doc 2 G/7(q), III UNCIO 446, 449; and Amendments to the Dumbarton Oaks Proposals Presented by the Egyptian Delegation, above n 90, 457.
[96] Brazilian Comment on Dumbarton Oaks Proposals, 2 May 1945, Doc 2 G/7(e), III UNCIO 232.
[97] Report of the Rapporteur of Committee III/1 on Activities of Committee III/1 (Structure and Procedures for the Security Council), Concerning Chapter VI of the Dumbarton Oaks Proposals, 17 June 1945, Doc 1050 III/1/58, XI UNCIO 675, 678.
[98] Summary Report of Seventh Meeting of Committee III/1, 16 May 1945, Doc 338 III/1/14, XI UNCIO 289; Opinion of the Department of Foreign Relations of Mexico, above n 53, 111.
[99] Brazilian Comment on Dumbarton Oaks Proposals, above n 96, 236.
[100] Fourth Meeting of Commission III, above n 30, 116; Fifth Meeting of Commission III, above n 86, 163.
[101] Statement on Behalf of the Australian Delegation Regarding the Report of Committee 3 of Commission III on Chapter XII (Transitional Arrangements) Annex to Fifth Meeting of Commission III, above n 86, 198.
[102 ] Though not necessarily judicial review, see J Alvarez, ‘Judging the Security Council’ (1996) 90 American Journal of International Law 1 and T Franck, Fairness in International Law and Institutions (1995).
[103] Verbatim Minutes of the First Meeting of Commission III, 13 June 1945, Doc 943 III/5, XI UNCIO 12, 13. Another possibility was that states not members of the Security Council play a larger role in the Council’s deliberations either when the interests of these states were at issue or when it was envisaged that these states might have to contribute military forces in Council action; ibid 14.
[104] Observations of the Government of Venezuela, above n 65, 189, 196. The Venezualans also called for a larger role for the ICJ with the possibility that it might ‘intervene’ in political conflicts, ibid 209.
[105] Observations of the Guatemalan Government Regarding the Proposal for the Establishment of a General International Organisation for the Maintenance of Peace and Security in the World, 23 April 1945, Doc 2 G/7(f), III UNCIO 254.
[106] Comments of the Government of Costa Rica, 5 December 1944, Doc 2 G/7(h), III UNCIO 274.
[107] Fourth Meeting of Commission III, above n 30, 113; Verbatim Minutes of the First Meeting of Commission III, above n 103, 16.
[108] Verbatim Minutes of the First Meeting of Commission III, above n 103, 17; Russell, above n 22, 671-2.
[109] Summary Report of Ninth Meeting of Committee III/1, 18 May 1945, Doc 417, III/1/19 XI UNCIO, 305. Ibid 309.
[110] Russell, above n 22, 656. See also, Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v United Kingdom) (Libyan Arab Jamahiriya v United States of America) [1998] ICJ Rep 115.
[111] Goodrich and Hambro, above n 7, 173.
[112] UNCIO VII, 505, quoted in G Nolte, ‘The Limits of the Security Council’s Powers and its Functions in the International Legal System: Some Reflections’ in M Byers (ed), The Role of Law in International Politics: Essays in International Relations and International Law (2000) 315, 317.
[113] Fifth Meeting of Commission III, above n 86, 163.
[114] Suggestions presented by the Netherlands Government, above n 16, 314.
[115] Goodrich and Hambro, above n 7, 29. The Council has in recent years established ad hoc criminal courts SC Res 827 (1993); imposed new obligations on states SC Res 687 (1991) and acted as a quasi-judicial body, eg, SC Res 705 (1991). See Franck, above n 102. It has also considerably expanded the category ‘threats to the peace and security of …’ to include failed states, internal wars and failure to comply with disarmament treaties, ibid 218.
[116] The extent of these powers are themselves the subject of controversy among scholars. One group argues for a ‘constitutional’ reading of the Council’s powers based on the Charter’s principles and powers or the constraining effects of the Charter’s text: see T Franck, ‘Fairness in the International Legal and Institutional System: General Course on Public International Law’ (1993) 240 Collected Courses of the Hague Academy 189. Another group adopting a ‘realist’ position denying to the Charter (or even international law) and restraining potential: see Alvarez, above n 102.
[117] Art 23. Note that Russia has ‘succeeded’ to the Soviet Union’s seat at the Security Council in 1990 and the People’s Republic of China replaced Taiwan as the Chinese representative in 1971.
[118] Art 110 also required the ratification of each of the P5 before the Charter could come into force. Only a majority of the other states was required.
[119] See, too, the ‘implacable hostility’ shown towards Trygvie Lie by the Soviet Bloc after the Korean enforcement action. See H G Nicholas, The United Nations (1962) 156. The Security Council also shares certain powers with the General Assembly (eg, powers of election relating to membership of the organisation and the choice of judges at the ICJ).
[120] K Annan, Secretary-General Presents Annual Report on Work of Organisation, as 55th General Assembly Begins General Debate, GA/9760, 200. For the distinction between reform of the UN requiring amendment and reforms that can be carried out more informally, see L Sohn, ‘Important Improvements in the Functioning of the Principal Organs of the United Nations That Can Be Made Without Charter Revision’ (1997) 91 American Journal of International Law 652.
[121] B Fassbinder, UN Security Council Reform and the Right of Veto: A Constitutional Perspective (1998).
[122] Art 106 also permitted the P5 some latitude to use force outside the Charter scheme pending the coming into force of art 43 (and thus art 42). Some scholars, of course, argue that art 43 has never come into force: see Higgins, above n 36. Do the P5 thereby retain their powers under art 106? See, too, the continuing powers of UN members in relation to the use of force against ‘enemy’ states, art 106.
[123] On absence see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16. On abstention, see art 27(3); British Statement to Political Committee, GAOR III Ad Hoc Committee Meetings 6 April to 10 May, 200. The veto operates only in respect of non-procedural matters. For a discussion of the difference between procedural issues and non-procedural matters see, Greig, above n 6, 707-9. One could argue that the Rules of Procedure provide for a dilution of hegemony by permitting the President of the Council to declare a procedural or non-procedural draft resolution (Rule 30). Such a ruling can only be reversed by a nine-member majority. The permanent members of the UN are also permanent members of the now largely moribund Trusteeship Council. In fact, the P5 are now the sole members of that Council. The P5 were able to act individually in preventing the adoption of the UN Charter. See Ninic, above n 35, 132.
[124] Bentwich and Martin, above n 40, xvi, even suggest that the relationship of UN members to the Security Council was a principal/agent relationship in which members delegated authority to the Council.
[125] Ninic, above n 35, 132. See eg, SC Res 794 (1992) and 837 (1992) on Somalia.
[126] On the transition from unanimity to majority voting see eg, T J Lawrence, International Problems and the Hague Conferences (1908); W Schucking, The International Union of the Hague Conferences (1918) (C Fenwick trans).
[127] J Brierly, The Outlook for International Law (1944) 99, quoted in Fassbinder, above n 121, 280.
[128] Fassbinder, above n 121, 281.
[129] Franck, above n 102, 484.
[130] Goodrich and Hambro, above n 7, 25.
[131] The Soviet Union ended up with two extra seats (those of Byelorussia and the Ukraine). Stalin had placed enormous pressure on the United States in this regard, arguing that the Soviet republics were at least as important as Liberia or Guatemala and at least as independent as the Philippines and India. Secretary Stettinius described this frankly as ‘the multiple membership of the Soviet Union’: quoted in Russell, above n 22, 535. Roosevelt confirmed this interpretation in Malta when he distinguished the admission of the British dominions and that of the Soviet Republics: ‘it was not a question of a new country but of giving one of the Great Powers three votes instead of one in the Assembly’: Malta and Yalta Documents, 775, quoted in Russell, ibid 538. The Soviets suggested that the United States also get two extra votes in order to secure equality: Malta and Yalta Documents, 967, cited in Russell, ibid 539. However, this raised the question of why the United Kingdom had six votes (these votes being the Dominion votes controlled by the United Kingdom delegate) and the United States and the Soviet Union only three, Russell, ibid 596.
[132] Observations of the Government of Venezuela, above n 65, 195.
[133] For a discussion of some of these images of the UN, see Roberts and Kingsbury, above n 9.
[134] The legal effects of General Assembly resolutions were a matter of some discussion among international lawyers in the 1960s and 1970s. Prima facie, the General Assembly’s recommendations have no law-making effect. The General Assembly is the ‘open conscience’ of the world: Goodrich and Hambro, above n 7, 150, but as with all consciences it has no direct legislative capacity. However, General Assembly resolutions can contribute to the formation of the opinio juris limb of customary international law: see R Higgins, The Development of International Law Through the Political Organs of the United Nations (1963). The ICJ in Nicaragua went further in suggesting that General Assembly resolutions can be construed as state practice. This doctrine proved to be highly controversial among scholars. See eg, H G Maier, ‘Appraisals of the ICJ’s Decision in Nicaragua v US (Merits)’ (1987) 81 American Journal of International Law 77.
[135] Goodrich and Hambro, above n 7, 25.
[136] See arts 15, 98, 16, 60, and 85.
[137] Art 13(1)(a).
[138] Arts 17, 18 and 61. In addition, the General Assembly can discuss and make recommendations relating to any matter ‘within the scope of the present Charter’ (art 10) providing it does not trench on Security Council action under art 12.
[139] These categories are found in Goodrich and Hambro, above n 7, 26.
[140] The General Assembly is also involved in the election of judges to the ICJ (art 4 of the Statute of the ICJ) and in the appointment of the Secretary-General (art 97).
[141] Eg, the General Assembly has constantly tried to chip away at the power of the Security Council in the admissions process by making recommendations to the Council and by initiating an Advisory Opinion on the powers of Security Council members; in the peace-enforcing realm with its Uniting for Peace Resolution GA Res 377 (1950) and in the peacekeeping area where it possessed primary responsibility during the first phase of peace-keeping operations. On enforcement, see Resolution 376 (1950); on peace-keeping see Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151; on admissions see Conditions of Admission of a State to Membership in the United Nations (Advisory Opinion) [1948] ICJ Rep 57.
[142 ] Perhaps the most famous being the Uniting for Peace Resolution, above 141. See also the discussions of the Palestine and Spanish cases in Goodrich and Hambro, above n 7, 153-163.
[143] Eg, Certain Expenses of the United Nations (Advisory Opinion), above n 141 where, in turn, the Court held that a General Assembly innovation, ie peace-keeping, was legitimate.
[144] See a proposal from the Canadian Delegation that a category of ‘middle powers’ be recognised in the Charter: Ninic, above n 35, 119.
[145] United States Minister of Foreign Affairs, 1953-1959.
[146] J Dulles, War and Peace (1950) 197, quoted in Ninic, above n 35, 119.
[147] This time it was the representation of the citizens of Iceland and the United States was compared: see Romulo, first session of the GA UNGA Official Records, 1252, cited in Ninic, above n 35, 120. See, too, arguments in M S Korowicz, Organisations Internationales et Souveraineté des Etats Membres (1961) 208.
[148 ] There has been some debate about the precise meaning of ‘peoples’ in this regard. It seems unlikely that it was to apply to peoples in the decolonisation sense because self-determination was not regarded as a right in the Charter. However, the terms ‘peoples’ and ‘states’ are employed loosely in the Charter and it does not seem absurd to suggest that what arts 1(2) and 55 represent are attempts to link sovereign equality to economic development and the promotion of human rights within states. For confirmation of this view, see Bentwich and Martin, above n 40, 7.
[149] Bleckmann, above n 8, 78. Bleckmann goes on to suggest that sovereign equality also means that the UN ‘must not infringe [state] sovereignty’. This hardly seems a plausible reading of the Charter now (see art 2(7)) but in 1945 many states regarded the principle in this light.
[150] Greig, above n 6; Goodrich and Hambro, above n 7; and Bleckmann, above n 8.
[151] Fifth Meeting of Commission III, above n 86, 163.
[152] Weighted voting did of course, feature in the Bretton Woods Agreements. For a consideration of voting procedures at the International Monetary Fund and World Bank, see L Sohn, ‘Weighting of Votes in an International Assembly’ (1944) 38 The American Political Science Review 1192; E McIntryre, ‘Weighted Voting in International Organizations’ (1954) 8 International Organization 484; J Gold, Voting and Decision in the International Monetary Fund: An Essay on the Law and Practice of the Fund (1972); J Gold, ‘Developments in the Law and Institutions of International Economic Relations’ (1974) 68 American Journal of International Law 687; S Zamora, ‘Voting in International Economic Organisations’ (1980) 74 American Journal of International Law 566; W Gainaris, ‘Weighted Voting in the International Monetary Fund and the World Bank’ (1990-1) 14 Fordham International Law Journal 910. See also the existence of plural voting at the International Labour Organization, the International Atomic Energy Agency, and the International Maritime Organisation.
[153] It is sophistic to argue that legal hegemony is an expression of sovereign equality because sovereign states have contracted together to form an international organisation with legal hegemony at its heart (this argument is described in Fassbinder, above n 121, 289). Perhaps hierarchy can be defended on voluntaristic grounds but only at the cost of saying anything meaningful about the way the Charter was created, the ways in which it actually operates and, in particular, the manner in which the whole collective security regime is premised on radical inequality.
[154] Bentwich and Martin, above n 40, 12.
[155] Eg, arts 2(4), 2(7) and 2(1).
[156] I have given the word ‘legislative’ a liberal definition here. What I mean is that the General Assembly has played a critical role in the development of international law through custom and through its Sixth Committee and the International Law Commission. I realise there is another sense in which it is clearly not a legislative body. Indeed, arguments have been made that the Security Council lacks direct law-making authority in the classic sense even though it can establish ‘norms’. I find these arguments unpersuasive. See eg, M P de Brichambaut, ‘The Role of the United Nations Security Council in the International Legal System’ in Byers, above n 112, 269.
[157] Equality of consent, too, is diminished by the Charter’s embrace of the majority idea. All UN organs decide either by simple majority or some form of special majority. Compare this to the League of Nations’ preference for unanimity: Bentwich and Martin, above n 40, 11.
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