The following debate questions the effectiveness of the Charter of the United Nations. Developed in 1945, its ability to keep its relevance amidst the latest developments concerning Syria, and the emergence of asymmetric threats in the form of rebel or terrorist groups is open to question. We would like to point out that this is a special debate to us, as we have Călin Mureșanu, a Lawyr.it alumni and Vice-president of the Lawyr.it board, as a guest contributor in what is an Old Editors v New Editors debate.
Călin graduated in 2015 from the Babes-Bolyai University (L.L.B in Law) and has recently been admitted to the Bucharest Bar. He was one of the four founding members of the Lawyr.it project and has been a Senior Editor until June. As a law student, he was also involved in the university’s debate team, as well as a member of the editorial board of Criminal Law Writings. Currently, he is working as an Associate at Reff & Associates SCA, member of Deloitte Legal, Romania.
Henok Abebe Gebeyehu
Henok Gebeyehu graduated in 2013 with Bachelor Degree in Laws (LLB) with Great Distinction from Addis Ababa University. Since November 2013, he has been working as Instructor of Law at College of Law, Haramaya University, Ethiopia. Currently, he is an LL.M Human Rights student at Central European University, being their representative at the Student Union and a Student Union Board member. He has also recently been accepted as a Junior Editor in the Lawyr.it Team.
Opening Statement - Călin
The United Nations was established after World War II, following the failure of the League of Nations in preventing the escalation of large-scale conflicts. In the three and a half decades up to the establishment of the UN, over 70 million people had perished in the two major conflagrations. A strong international organisation was needed, one which would include the major powers and respect their interests while also forcing them to keep each other in check, so as to prevent the occurrence of a third war of similar magnitude. I argue that it has succeeded in its mission, and has done so not because of the lack of challenges, as the world has since seen many smaller-scale armed conflicts, as well as a 44-year long Cold War.
My opponent argues that the United Nations Security Council fails to act promptly because of the veto power, leading to the occurrence of bloodletting crises, such as the one in Syria. My response is twofold. Firstly, I argue that in analysing if such events amount to enough of a problem to deem the whole system as dysfunctional, we need to have a broader perspective. I do not argue that the system is perfect – conflicts will happen. However, the role of the right to veto is to maintain the fragile balance where the interests of the major political and military forces of the world are kept in check, while also giving them enough political power to make sure that they adhere to the organization and the system rather than choose to simply ignore the framework. Note that International Law does not have the same enforcing mechanisms as National Law does, and it heavily relies on States willingly cooperating with each other. Some conflicts may happen under the system, but the system makes sure that no interest of a major power is infringed upon in such a significant way to cause a larger-scale conflict.
Secondly, when failure to act happens, such as was the case in Syria, it happens because there are underlying reasons for major actors to exercise their veto power. Syria was the battleground of a myriad of conflicting interests and agendas. At no point was it evident that the intervention was the proper course of action and that it would lead to long-standing peace in the Middle East. Furthermore, individual states, including states with the veto right, had strategic geo-economic and geo-political interests at stake which also needed protection. These interests are there regardless of the system we put in place to protect international security. In spite of all of this, the UNSC has eventually managed to reach a consensus and has been taking steps to find a long-term solution for Syria as of August 2015.
With respect to the UN’s implication in threats promoted by individual actors, we need to nuance the cases where the actions of an individual amount to such a threat that they are under the scope of the UN Charter. The Charter was designed as a framework to developing international peace, to prevent inter-state conflicts. When an individual poses a threat to the peace of an individual state, it is rarely an inter-state matter and more often a case of an individual committing a crime that he/she should be punished for. Whereas terrorism may indeed be international in effect, in the sense that a group of individuals from one country may pose threats to people from other countries, such individuals do not act as representatives of any state, falling outside the scope of the UN Charter. There are other mechanisms specifically targeting such crimes committed by the individuals, such as the ICC. The actions of such individuals may be addressed by individual states based on national and international criminal law. To the extent that a state actively condones terrorism, I argue that Article 51 of the UN charter is fully applicable and does not present a lacuna.
To conclude, whereas I do not believe that the UN Charter is perfect or that it provides a silver bullet for combating threats to global security, I argue that the past 70 years of relative peace have proved that the UN Charter is a functioning tool.
Opening Statement - Henok
The maintenance of international peace and security, which is the linchpin of all purposes, is the number one chartered mission of the United Nations (UN), established to spare the generation from the scourge of war. We, the peoples of the United Nations, are sailing in the same boat where your infliction is mine, and my enchantment is yours as well. The General Assembly (GA), during the 2005 World Submit, affirmed that the relevant provisions of the UN Charter are sufficient to effectively deal with the contemporary threats to the international peace and security. I argue, however, that there are certain loopholes that still impede the entity from effectively achieving its ambitions (Guzman, 2011).
First, one of its main organs, the Security Council (SC), is entangled with the veto power scheme. The SC has been failing to act resolutely during situations that have paramount ramifications on the international concord. The Permanent Member States of the SC are jealously guarded, with the help of the anachronistic veto power, their strategic interest, and political motives at the expense of their international responsibility. The double standard problem and the veto power scheme epitomise the failure of the SC to swiftly react in the bloodletting crisis of Syria. The failure is piled with the lack of a well-developed and binding international norm of the responsibility to protect, and humanitarian intervention principles. Pursuant to the Uniting for Peace Resolution, the General Assembly (GA), however, has certain recommendation powers, but they are short of legal binding force.
Second, the failure of the UN Charter to encompass the new developments of prohibition of the threat and use of force and self-defence against private actors makes the organisation less effective. The right to self-defence, an inherent right of states, is an exception to Article 2 (4) which restrains states from resorting to the threat or use of force, when an armed attack is launched by a state against the territorial integrity or political independence of another member state. Resort to self-help is allowed only when the entity whose acts are attributable to the state has performed the armed attack. However, nowadays, states tend to use Article 51 against another state when it is the terrorists or rebel groups who attack, and the host state is unable or unwilling to curtail the harmful conduct. Among other things, terrorism is one of the greatest menace to international peace and security. Prohibition of the threat and use of force is meant to effectively tackle the infliction of massive injury by states. Despite the glaring fact that non-state actors are as capable as states to inflict massive injury, however, the right to resort to self-help to terminate a pernicious attack committed by private parties is not permitted by the Charter.
Pursuant to the Charter, harbouring a rebel or terrorist group does not amount to an armed attack by a State. Nor does the Charter envisage the right to self-defence against the safe-harbor state. Self-defence against a state for an act committed by non-state actors, and counterterrorism responses as a self-help right against private actors hosted in another state are unwarranted self-defence actions that contravene Article 2 (4) and 51 of the UN Charter. Despite all the prohibitions, states are utilising their inherent unilateral self-defense right. The dissonance between the real state actions and the Charter is one of the constraints of the UN and makes the Charter less effective to maintain the international peace and security.
Third, the advent of the notion of peremptory self-defence and the proliferation of weapons of mass destruction makes the Charter, not least Article 51 that requires the occurrence of an armed attack, futile and archaic. States are exercising anticipatory self-defence, which is not envisaged by the Charter, assuming that to wait until the trigger is pulled and the bullet is ignited would certainly result in irreparable and irreplaceable annihilation.
Therefore, it is hardly possible to imagine that the UN Charter, while it fails to address such de facto lacunas, is sufficient to effectively deal with the contemporary threats to international peace and security.
Henok’s main argument resolves around the Security Council’s inability to act, in accordance with its powers, due to the existence of the veto right, the scantiness of provisions relating to non-state actors, as well as the failure of Article 51 to incorporate anticipatory self-defense. The blockage, according to Henok, results from the geo-economic and geopolitical interests of its members. Călin, on the other hand, provides a new perspective, arguing that the failure in finding a common ground cannot be solely attributed to the veto right. He also counters Henok’s reference to terrorism and non-state actors, arguing that a group of individuals do not act as state representatives, and, as a result, the UN Charter is not applicable to their actions.
Rebuttal - Călin
It is without doubt that failures occur under the framework set forth by the UN Charter. I agree with my opponent that it is foolish to argue that the Charter is an impeccable tool for defending peace internationally. However, we need to analyse the extent to which these failures are caused by a flaw of the system and the extent to which a different system would yield less failures, without any significant disadvantage. It is easy to point out failures; these become more obvious as the loss of human life (often in high number) occurs. However, success is less quantifiable – it is harder to notice that which did not happen. I argue that the UN (especially because of the UNSC) has successfully kept a state of relative peace for the last 70 years.
My opponent’s main argument relies on the fact that the right to veto allows for conflagrations to escalate around the world because of key strategic interests of individual countries that urge them to exercise the use of the veto and block intervention. My opponent is correct in pointing this out. However, what my opponent doesn’t point out in his argumentation is that it is specifically because of this veto power that major poles of power (such as the USSR for the majority of the existence of the UN) are incentivised to invest into the organisation and uphold its resolutions as norms of international law.
As I mentioned before, international law does not benefit from the same enforceability that national law has. In a national jurisdiction, the State has a monopoly over the use of force, as well as authority to regulate what individuals can and cannot do. This allows for a mechanism where the legislative body of a State defines a set of rules that all individuals must follow, a State-approved Court of Law decides when an individual has breached said rules, and the State’s law enforcement can then proceed to prosecute individuals and enforce the law (or Court ruling) with authority. At an international law, there is no such monopoly over power, nor is there a powerful enforcement mechanism that we can use to enforce rules of international law. These norms only gain the status of ‘mandatory’ law that States must follow through willing adhesion from the States to the norms. It is therefore essential that we respect individual States’ interests and incentivise them to ‘buy-in’ to the system that we create, especially if said States are major poles of power in the absence of which the system could hardly be called ‘international’.
It is this very mechanism of respecting State interests and sovereignty that has led to the greatest success of the UNSC so far – preventing a conflagration of the scale of the two World Wars. Note that we live in a world where ‘Mutually-Assured Destruction’ is a term we have gotten used to and are strangely comfortable with. Note that the United States and Russia, the states with the world’s largest nuclear arsenals were in a Cold War for more than four decades. This state of global peace is largely due to countries’ unwillingness to defy this highest expression of international law – The United Nations with its Security Council (Sieff, 2013). In the absence of the right to veto, this would not happen.
The underlying assumption that is present in my opponent’s argumentation is that the UN is a failure in that it protects States’ interests unequally, giving significantly more protection to the P5 countries than to all other countries. That may be the case; one could argue that the League of Nations was ‘fairer’. But the League of Nations failed. In our struggle to achieve world peace, we need to acknowledge that the issue is not about democracy – it is about balancing effectiveness, legitimacy and rights (Muravchik, 2006).
Rebuttal - Henok
It is neither a pertinent nor a wise move to turn our neck backward to argue whether the UN Charter is an impeccable instrument to effectively handle contemporary threats to the international peace and security.
The Syrian conflict is the epitome, but not the sole mess that the SC has failed to address. The Council has been impotent in so many instances, such as Rwanda, Darfur, Bosnia, and its failure to condemn Russia’s annexation of Crimea. The mechanism envisaged by the founding members might have been meant to effectively keep the influential power holders, but, as it is evidenced from history, the veto design makes the Council to act with one hand tied behind its back. Referring to the veto right of the P5 states, the collective self-defence scheme failed to halt a conflict that bears a chilling effect on the international peace and security. The international community is experiencing repetitive annihilation, as the conflict opens a Pandora’s Box for similar sufferings, and the SC will not react if the interest of one of the permanent members is at stake. And then, how can the UNSC maintain the international harmony at the same time pursuing the uncompromising interest of its super powers? The problem is not all about the existence of greedy political interest in a certain conflict prone area; rather it is all about leaving the international peace and security under the mercy of their selfish interest.
My opponent has argued that whether veto power is schematised or not, conflicts might happen, but I also say that the anguish could have been ameliorated had there not been a veto power scheme or had there been a system of expedited intervention mechanism.
Unaddressed state conducts are multiplying. The charter did not envisage the US military operation in Afghanistan under the guise of dismantling terrorist groups. The right to resort to the self-defence is applicable when the attack is launched by another state. A new development of the self-help right against non-state actors is, however, springing up and looming over the international peace and security, while the Charter fails short of solutions.
There are conducts seen as crimes, which fall under the jurisdiction of national or/and international adjudicatory systems. What if the states resort to taking the law into their own hands? That would be similar to what Ethiopia did against Al-Shabaab in Somalia, and the USA in Afghanistan and Iraq. The Charter is far from addressing the practical state conducts that shrouded over the international peace and security. Israel destroyed the Osirak Nuclear Reactor of Iraq in 1981 under the doctrine of anticipatory self-defence. No state, especially a capable one, will wait for the nuclear attack to be launched. This is another unaddressed threat to the international harmony that will pose a threat to the UN’s ability to maintain its missions.
At this point, Henok consolidates his arguments by explaining the consequences resulted from the failure of the collective self-defense scheme, and he counters Călin’s point on the underlying causes of the SC’s inaction, by stating that it is the countries’ selfish interest which leads to the blockage, rather than the geopolitical interests reserved to a certain area. Călin, in turn, argues that, as criticisable the veto right is, the UN has successfully prevented a large-scale conflict over the past 70 years, and moreover, it has been a powerful tool in trying to build a similar level of enforceability of international law norms as is the case with national law.
I hope you enjoyed the debate and the conclusions will help you form an opinion of your own!
Conclusions - Călin
The United Nations greatest success probably is the fact that the ‘Cold War’ happened, rather than ‘World War III’. It is a system that effectively deals with major threats to peace and security worldwide. It has succeeded in creating a world worthy of its name – a world where global powers of vastly competing interests are not just able, but more importantly willing to cooperate on providing solutions to escalating conflicts and upholding a global notion of peace.
In arguing against the effectiveness of the UNSC, US secretary of state Cordell Hull says that the ‘entire plan’ of the United Nations rests on the premise that the permanent members of the Security Council consider themselves morally bound to cooperate with each other in maintaining peace, but that only the US and UK act on morality. The others three powers follow foreign policies out of pure egoism, untainted by any trace of morality (Muravchik, 2006). This is correct. However, this is a reality that cannot be changed by any international organisation. Instead of foolishly hoping that the reality will change, we need to acknowledge this fact and cherish the fact that the UNSC does not solely rely on morality; it provides these states with a means to selfishly protect their interests – the right to veto. This keeps them invested into the organisation, and is thus a necessary evil without which global peace would suffer dearly.
Conclusions - Henok
Having the mission to maintain the international peace and security at the crux of its purpose, the UN has been passed through myriads of vicissitudes, traversed into the doomed and gloomed Cold War epoch and finally reached the age of extremism and terrorism. It is difficult to get a conventional success metric as the best indicator of the achievements and failures of the UN, but, still, it is worth noticing that the organisation has managed to achieve a small part of success. There has never been, after the establishment of the UN, a similar war like the two World Wars, and this can be considered as the roaring success of the entity.
New threats to the international peace and security, which were not envisaged by the founding fathers of the UN, are emerging. The SC ensnared by the veto power and succumbed to take measures that could have assuaged the destruction and plights. Our tomorrow, together as the citizenry of the globe, can be bright or gloom. The turmoil at the Middle East has the potential to disturb the whole world. If a system fails to preserve peace and protect humanity at a certain corner of the globe, we, too, all are responsible for that.
The onset of terrorism and proxy wars makes Article 51 of the charter futile, as states, under the guise of dismantling terrorism, claim they are using an inherent self-defence right against non-state actors, although the article permits the use of force only when an attack directed against a member state by another member state.