United Nations Security Council and the Challenge of Rule of Law in the 21 st Century

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1 United Nations Security Council and the Challenge of Rule of Law in the 21 st Century Wahab Egbewole* Abstract The paper discusses the circumstances that galvanized in the creation of United Nations (UN), the parent body of the Security Council. It also delineates the pivotal need of an organization of this nature and argues that the Charter of the UN rightly captures the central tenants. The Charter is a mirror of global governance in the face of breakdown of law and order as well as the terror and horror experienced during the Second World War. The first purpose of the UN as set out in that Constituent Act is maintenance of international peace. The prospects of the UN Nations in maintaining international peace in the 21 st century lies in being a paragon of rule of law particularly at the level of its very powerful elite sub-body, the Security Council. (*Wahab Egbewole, Acting Dean, Faculty of Law, University of Ilorin, eabdulwahab@unilorin.edu.ng) 56

2 There is simply no alternative in a nuclear age to world peace through Rule of Law Arthur J.G i. Introduction The name United Nations Security Council is apt. It perfectly captures the circumstances that led to the creation of United Nations, the parent body of the Security Council. It also captures a central purpose of the organization as stated in its charter. The United Nations charter is a mirror of the global shocking response to the break down of law and order as well as the terror and horror experienced during the Second World War. The first purpose of the UN as set out in that Constituent Act is maintenance of international peace and security ii. The Security Council is granted primary responsibility for the maintenance of global peace and security iii. The Council decisions are supposed to be geared to this end iv, whether it has lived up to the billing according to the best provisions of international law is another matter. v The precursor of the global body, League of Nations, failed for a number of reasons one of which is the refusal of United States to be a member. vi The body was Eurocentric and given the power calculation then, the United States of America was not regarded as strong enough to effect or affect anything. Another reason - quite more fundamental is wanton disregard of its constituent Act and if one may add-of international law. vii In other words, it faced the problem of rule of law. The prospects of the United Nations in maintaining international peace in the 21 st century lies in being a paragon of rule of law particularly at the level of its very powerful elite sub-body, the Security Council principally saddled with this responsibility. The Organization and Operation of the Security Council The Security Council was conceived as an executive organ of the UN with immense executive and legislative powers viii. There are fifteen members in the Council consisting of 5 veto wielding permanent members. The five permanent members are: United States of America, United Kingdom, Russia, China and France. ix The five permanent members emerged from the power play of the Second World war-being the victorious powers of the war. x The foundation members in 1946 consisted of United States, United Kingdom, USSR, France and Republic of China; xi Russia takes the place of 57

3 USSR, China takes the place of the Taiwan based Republic of China. xii been reflected in the Charter. xiii This change has not The permanent members hold the veto powers. The Charter provides that the decisions of the Security Council must be made by an affirmative vote of nine members which embraces the concurring votes of the permanent members. xiv One exception to this is vote on all procedural matters. In practice, absenteeism is not regarded as a vote in spite of the clear provision of the Charter. xv Veto (or negative vote) by a permanent member prevents adoption of a motion notwithstanding that it is supported by not less than nine required votes. The non permanent seats on the Council are distributed in line with both Charter provisions and non charter agreements and rules. xvi The ten non permanent members are elected by the General Assembly for two years term on being chosen by required groups. xvii Three members are chosen from Africa, the Latin America and Caribbean. xviii Western Europe axis and other blocs choose two members each and the Eastern European bloc chooses one member. xix Unlike the General Assembly s President, the presidency of the Security Council rotates monthly by English alphabetical order of states. xx The President has some powers to call and regulate meetings as well as preside over debates. His rulings are subject to challenge by the Council particularly the permanent members. xxi Hence, the position is essentially a ceremonial one. The President has the vires to issue both presidential statements and notes which of course are subject to consensus among Council members. xxii For the purpose of dealing with crisis, the Council is designed in such a way that it can meet on any given day. The rules of the Council require it to meet at intervals of no more than fourteen days, though this is usually breached. xxiii The Council operates a committee system. It may have ad-hoc committees such as the Governing Council of the United Nations Compensation Commission xxiv and Counter Terrorism Committee. xxv This paradigm is geared towards making the system live up to the mark as a body primarily charged with the responsibility for global peace and security. It also ensures that the system operates within the ambit of the Charter and in line with the rule of law. By the provision of chapter VI of the Charter (Pacific Settlement of Disputes), the Council may investigate any dispute or any situation which might lead to international friction or give rise to a dispute. xxvi The anticipatory self defense principle was used as justification for the post 9/11 National Security Strategy to forestall or prevent holistic 58

4 acts. xxvii Towards this end, the Council may recommend the proper procedures of adjustment, if in its opinion the situation could endanger international peace and security. However these recommendations are not binding on any member. In contras, under chapter seven of the Charter, the Council has broader powers to decide what measures to be taken in situations involving threats to peace, breaches of the peace, or acts of aggression. xxviii For this purpose, it is not limited to recommendations but may take actions including the use of armed forces to maintain or restore peace, in the spirit of Collective Security. This principle of collective security in the United Nations System is a three layered theory, that is, it is based on three tenets. First, all members forswear the use of force except in self defense. xxix The Council authorized the use of force for the first time under Chapter VII on 29 th November 1990 when Iraq evaded Kuwait. xxx Secondly, members agree that an attack on one is an attack on all. This position is justified under the principle of collective self defense. The argument of proponents of this position is that in this thermo-dynamic world, a state should not wait for direct attack before she joins others in ensuring her own security by aligning with others to secure her territory. Lastly all members pledge to unite to halt aggression and restore the peace by supplying to the UN or its other agencies whatever material or personnel resources necessary to restore peace. xxxi For the purpose of collective security, the Charter gives the Council power to investigate any situation threatening international peace, recommend procedures for peaceful resolution of a dispute, call upon other member nations to completely or partially interrupt economic or diplomatic relations, enforce its decisions militarily or by any means necessary and avoid conflicts and maintain focus on co-operation. xxxii These are provisions of the Charter: they are the laws; enforcing them fairly to achieve the central aim of the Council will mean that the rule of law reigns supreme in the world system. Before diverting anon, it s apposite to show the general context of the rule of law within the United Nations system itself. The United Nation s principal bodies duties are sometimes interlocking and inter-related. As an illustration, the Security Council s responsibility of maintenance of international security is shared with the General Assembly, as for instance, in Pacific Settlement of Dispute, and with International Court of Justice, in adjudication of same. As Malcolm points out, the United Nation system is founded in constitutional terms upon a relatively clear theoretical distinction in the functions of the principal organs of the organization. However, 59

5 he goes further, due to political conditions in the international order, the system failed to operate as outlined in the Charter and adjustments had to be made as opportunities presented themselves. xxxiii The Security Council was intended to function as the executive of the UN, with the General Assembly serving as the parliamentary forum. xxxiv As it operates now and even going by the powers under the Charter, one cannot but agree with Janet that the Council exercises legislative, executive and judicial powers all together. xxxv This gives it a lot of powers portending dangers to rule of law. The meaning of this is that the whole UN structure as interlocking as it is requires some re- examination at the constitutional level on the terms of its own charter and international law in general. Rule of Law in the United Nations System Dicey s conception of rule of law is a good working concept in any discourse of rule of law. According to him rule of law is absolute supremacy or pre-dominance of regular law as opposed to the influence of arbitrary powers and excludes the existence of arbitrariness, prerogative or even wide discretionary authority. xxxvi This is not a consensus definition as it has been observed that its time the quest for consensus definition be given up because rule of law is used in different ways by different actors for different purposes. xxxvii The Charter of the United Nations can be regarded as the first instrument of United Nationsled world. xxxviii The first paragraph of the first article of the Charter declares that one of the purposes of the United Nations is settlement of international dispute in conformity with the principles of justice and international law. It is submitted that the said principles of justice and international law refer to international law and natural justice in general, all predicated on rule of law on which depends all other things in the system to paraphrase Lord Archborn. xxxix Some of these principles are enunciated in the Charter. The Charter is a multilateral treaty establishing the mode of obligation among its members hence it is an important addition to international law. xl The Charter enumerates the principles on which UN and its agencies operate to forestall arbitrariness and entrench Rule of Law. xli The first principle is the sovereign equality of the members. xlii This finds expression in the idea of one- state, one vote. However some inequality is recognized in according the permanent membership of the Security Council to 60

6 the big nuclear powers. Another restriction upon sovereignty is the obligation to abide by binding decisions of the Security Council. The membership in the UN of sovereign political units such as Ukraine or the Vatican is an exception to the rule of sovereignty. There are two principles relating to security. One is that all member states refrain from the threat or use of force in any manner inconsistent with UN purposes. xliii The other is that they shall settle their disputes by peaceful means. On this Lervy observes, The substitution of peaceful settlement for reliance on force has been disappointing in the UN record. xliv Similarly for the first arm of the twin principle. A few examples will be cited later in this paper. Another one is the principle relating to the obligation of members to support enforcement actions of the United Nations and to refrain from giving assistance to states that are the object of UN preventive or enforcement action so long such actions are in line with the Charter. xlv The other half of this is the collective responsibility to require non member states to conform sufficiently to Charter principles to ensure the maintenance of international peace and security xlvi. Another principle is the obligation of all members to fulfill their mandate under the Charter. The Charter lays a foundation for adherence to rule of law when it obligates members to accept and carry out the decisions of the Security Council in accordance with the present Charter. xlvii One notable feature of the principles contained in the Charter particularly those in Article 2 (4) is the emphasis on adherence to the Charter in the spirit of rule of law. The right of individual or collective self defense is yet another principle. xlviii Under it, member states have the responsibility for reporting their responses to enemy attacks to the Security Council but are not obligated to wait for effective UN action before taking self defense measures. xlix Regional defense such as on the platform of Africa Union (AU) or Economic Community of West African States (ECOWAS) standing force might be seen to have somewhat curtailed the United Nations Security Council or the General Assembly from restoring peace in situations in which armed force is involved. l However the Charter itself has provided for the world s body relationship with regional bodies in the achievement of global peace and maintenance of law and order. li The real issue in collective security is that a permanent member of the Security Council may ignore its obligation to report individual or collective self defense to the Security Council or hides under it to commit acts that can endanger global peace. lii Pre-emptive attack is recognized by 61

7 a United Nations Secretary General s Report as one area that needs to be properly understood in the light of the Charter if the United Nations would be a forum for legally resolving differences, rather than a mere stage for arbitrarily acting them out. liii This is one issue that can not be waived away in view of the ample effects of such actions as the unilateral Israeli attack on Iraq nuclear facility in the name of self defense. liv The need for a proper grasp of the principle of self defense becomes more pressing in the face of growing concern over terrorism and the fear of running foul of rule of law in the name of fighting terrorism. It has raised concerns over state terrorism and sparked intense debate in the United Nations. On this the Secretary s report says...it is time to set aside debates on so called state terrorism. The use of force by state is already thoroughly regulated under international law. And the right to resist occupation must be understood in its true meaning. It cannot include the right to deliberately kill or main civilians. lv The report links success in prevention and resolution of deadly conflicts to the need to promote the rule of law. lvi In the light of recent allegations of misconduct by UN administrators and peace makers, the UN system should reaffirm its commitment to respect, adhere to and implement international law, fundamental human rights and the basic standard of due process. lvii It goes further to highlight the importance of rule of law as an element of freedom to live in dignity stressing that new laws must be put into place, old ones must be put into practice and or institution must be better equipped to strengthen the rule of law. lviii It is submitted that the United Nations has an existing system for achieving this feat. It has inherent constitutional process, multilateral treaty mechanism, legislation and quasi legislation system, through, for example binding decisions of the Security Council, General Assembly Resolutions, and dispute settling mechanism such as the International Court of Justice as well as recourse to the general principle of international co-operation. lix To ensure adherence to the UN system of law, a rule of law co-ordination and resource group was put in place within the Secretariat. lx The group headed by the Deputy Secretary General 62

8 will be the focal point for co-coordinating system wide rule of law activities so as to ensure quality control and greater policy coherence and co-ordination. lxi This system wide approach normally embraces the Security Council too. The fears that observers of international events would have for this effort is the power that the Security Council wields and the readiness of its powerful members and other powerful nations of the world to make themselves bound by the dictates of rule of law in the international arena and their readiness to embrace suggestions for its improvements. Perhaps to allay this kind of concerns, the Security Council on 6 th October, 2001 held a meeting to discuss Justice and the Rule of Law and the Secretariat Report to that effect was titled The Rules of Law and Transitional Justice in Conflict and Post Conflict Societies. lxii Similarly, in June 2006 the Security Council met to discuss the issue of rule of law vis-à-vis maintenance of international peace and security. In both cases the Council reiterated the need for the Secretariat to provide proposals in that regard. lxiii In any case, proposals by the Secretary to the Security Council remain what they are: proposals. Suggestions on enhancing the rule of law in the United Nations are not new. What remains is for every one including and particularly the more powerful members, especially the elites, to be bound by them. They dictate the rules and consider themselves too big to be bound by it. lxiv The Security Council and the Rule of Law Challenge: Quo Vadis? An understanding of the rule of law mechanism in the whole of the UN system as discussed above is essential for grasping the place of the United Nations Security Council. Pursuant to the 2004 Report of the Secretary General on rule of law where he highlighted on rule of law vis-à-vis conflict and post conflict societies, the General Assembly World Summit passed a resolution re-affirming its commitment to the rule of law. lxv In a 2006 report on rule of law the Secretary General refers to the situation in Darfur. He viewed the United Nations Security Council s reference of the crisis in Darfur to the International Criminal Court as a reflection of its commitment to rule of law in line with his proposals and the commitment of the General Assembly. lxvi This could be the case. However Security Council intervention in Darfur as with many of its interventions needs to be understood in the context of its members historical attitude to rule of law. The Darfur Crisis 63

9 has been with the world for a long time but it appears that intervention of the UN still leaves much to be desired. lxvii The Rome Statute of the International Criminal Court gives the Security Council the authority to refer cases to the Court where the court could not otherwise exercise jurisdiction. lxviii It exercised this power for the first time in March 2005 when it referred to the Court the situation in Darfur where there had been serious carnage that had led to killing of many persons and displacement of many others. lxix It is good to note that the United States of America which spare headed reference of the issue to ICC refused to be a signatory to the Rome Statute that created it. lxx It is also note worthy that America considers Sudan an unfriendly nation. The Secretariat had advocated for ratification of treaties as an element of rule of law in order to Preserve in this regard effective multilateral engagement based on the Rule of Law. lxxi When top permanent members of the Council do not live by example and try to subdue others to international instruments to which they themselves do not subscribe, it raises problem of legitimacy and credibility. It is one problem that portrays the Council as elite of nuclear powers used as a calculus for their own power plays. This also appears to be the situation in the Korean War of 1950s. The resolution passed by the Security Council in its proclaimed aim to end the conflict really served to legitimise the reality of American intervention on the side of its ally South Korea, in what became one of the bloodiest wars of the Century. lxxii This is not to suggest that the United Nations Security Council has never succeeded at some points in putting an end to some acts of aggression. In the Darfur case it is hoped that its intervention, if properly managed and divorced of power politics could, bring about peace in that part of the world. The issue has been that of management and positive intentions on the part of the big super powers. They get result when they are interested; they care less when their interest is not threatened. By popular accounts, the Council has not lived up to the mark. The Rwanda and Angola genocide are cases in point, the Security Council s inaction led to the death of millions of people. lxxiii The Council is accused of protecting the Oil rich Kuwait in 1991 but poorly protecting resource poor Rwandans. lxxiv The major issue here is slow action aggravated by poor response system. Negative vote (veto) is another cause of the Council s failure in its 64

10 appointed task of preserving international peace and security. As pointed out earlier a veto from any of the permanent members is sufficient to stall all but procedural resolutions of the Council. lxxv Where any of the permanent members does not agree that a situation constitutes a breach of peace or a threat to peace, action may be stalled. The Council only adopts measures relating to enforcement of world peace after it has determined first the existence of any threat to peace, breach of the peace or aggression. lxxvi In discharging its duties, the Security Council is mandated to act in accordance with the purposes and principles of the United Nations. lxxvii These principles have been earlier enunciated and so has the purpose. But do they really determine the thrust and crux of the Council s actions? May be in a few instances but specific examples shall be examined to answer this question in broader form. In any case how the organization defines threat to or breach of the peace or acts of aggression depends on the relationship of the permanent members to the issue under consideration. lxxviii And such relationship, it is submitted further, is usually defined by power politics and national interest rather than Rule of Law or serious concern for international stability, security or peace. The first time threat to peace was defined was in the aftermath of creation of Israel in 1948 when the Security Council passed a resolution to demand ceasefire. lxxix From then, America has usually vetoed resolutions critical of Israel. lxxx In fact, Mearsheimer claims that since 1982 US has vetoed 32 Council resolutions critical of Israel which is more than the total number of votes cast by all other Security Council members. lxxxi Hence, veto, like proper definition of threat to peace, is a major problem of the Council in the post cold war 21 st century as it was in the cold war era-or perhaps more. The Cold War affected the Council s rule of law regime. This is the more reason why the Post-Cold war Security Council has the challenge of ensuring that the Council is not used for arbitrary use of power by any one member or a number of members. At this point it is apposite to examine some specific examples of United Nations Security Council or its members adherence to the spirit of its Charter and international law in a bid to maintain international security. These examples are the best indicators of the problems and prospects of the Council vis-à-vis Rule of Law. 65

11 Israel/Arab Saga The first major challenge that the Council had to face was the Israel/Arab Saga. The creation of Israel triggered a wave of crisis in the Middle East. lxxxii The Middle East is a perennial hot-spot that has currently engaged the attention of the United Nations. lxxxiii During the war, Israel captured Golan Height, from Syria, Sinai Peninsula from Egypt and the West Bank from Jordan. lxxxiv The Security Council resolution 242 of November which called for Israel withdrawal was disobeyed with utmost contempt. Israel clung to the Cities lxxxv leading to continuous bloodshed that claimed and continues to claim many lives, rendering many homeless and hearts swollen. lxxxvi Washington s insistence on Iraq s compliance with a whole raft of UN Security Council Resolutions sits uneasily with what is perceived as a reluctance to enforce Israel compliance with UNSC Resolution 247 and Resolution 425 (1988). lxxxvii The Resolutions called for a full Israeli withdrawal from the security zone that it had established in South Lebanon in conjunction with Lebanese militia forces. lxxxviii Only recently, Israel launched an attack on a flotila of aid headed for Gaza Strip causing the death of a few persons. lxxxix The Security Council condemned the attack but it did not inspire any serious action to end the problem fuelling further crisis in that region. The crisis in the Middle East has been severally identified as a major motive force for acts of violence around the world. That is the more reason why failure by the Security Council to tackle it head on is monumental. It is a serious drag on its proclaimed aim of maintaining International peace and security. Its inability or refusal to enforce its Resolutions raises a lot of credibility issues. Hence for Israel /Palestinian Saga the Council s score on the rule of law is not anything to write home about. It is abysmal to say the least. The records are clear. Bosnia/Herzegovina Genocide The conflict in Yugoslavia witnessed the intervention of the Council by means of different resolutions. In 1991 the Council passed a resolution imposing arms embargo on that country. xc In 1992 another Resolution was passed authorizing full deployment of a peace keeping force. xci In yet another resolution, the Federal Republic of Yugoslavia/Croatia was criticized for their onslaught on Bosnia and sanctions were also imposed. xcii This was followed by a string of other resolutions meant to quell the dire situation and keep the peace, which did not largely deter aggression. It was much later that North Atlantic Treaty Organization (NATO) resorted to the use of air strikes to ward off attacks by Bosnia Serbs. 66

12 That was after many casualties had been recorded. Hence in the case of Bosnia the question was whether the Council was swift in carrying out its Charter obligation using the appropriate channels. It was claimed by Bosnia in the case of Herzegovina v Yugoslavia (Serbs and Montenegro) that the Security Council imposed arms embargo upon the former Yugoslavia had to be interpreted in a way that would not rob Bosnia of its right of self defence under international customary law and under the provisions of Article 51 of the Charter. xciii The case underscores how judicial intervention might be sought to ensure that the Council s decisions are within the purview of international law, albeit succeeding in getting such decisions to be is another matter. Iraqi Wars Iraqi War was one of the most notable instances in which the Security Council authorized the use of force in the aftermath of Iraqi invasion of Kuwait. xciv It was a situation in which the powers of the Security Council to maintain peace was tested as the Council first had to call on Iraq to withdraw. Following plan to annex Kuwait as an external part of Iraq; the later invaded the former on 2 August xcv After a number of initial resolutions the Council decided to authorize the use of force in an operation led by the United States and a coalition of states. xcvi While the repulsion of Iraq from Kuwait was done in line with the Council Resolutions, some subsequent actions raised questions, for example a no flying zone was established over Southern Sudan subsequent to deployment of troops by France, US and UK into Northern Iraq to create a safe haven for humanitarian operations. xcvii It is submitted that these were actions that were not mandated by the resolutions. This perhaps explains why Western State troops in Northern Iraq were speedily withdrawn and replaced by UN guards. Hence the operation despite being carried out under the Council resolution not only ran foul of rule of law in certain instances, it also caused enormous loss of civilian lives. xcviii The Second Gulf War posed more serious legal questions. While a 2002 Resolution recognized that Iraq s non compliance with Council Resolution and alleged proliferation of weapons of mass destruction posed a threat to international peace, xcix the Council was divided on the need for a follow up to this Resolution. In fact, a draft resolution drawn up by the US, UK and Spain as a follow up to the resolution was withdrawn when it became clear that it would be opposed by one or more permanent members. Hence without full Council 67

13 authorization the United States led another attack on Iraq, igniting global criticism. c In the wake of preparations for the Second Gulf War President Bush was reported to have said I don t care what the international lawyers says, we are going to kick some ass. ci To show that rule of law was not taken into consideration in launching the second gulf war, Sir Stephen Wall, a Senior Foreign Policy Adviser to Prime Minister Tony Blair said we allowed our judgement of dire consequences of inaction to override our judgment of even more dire consequences of parting from the rule of law. cii The premise of possession of nuclear weapons was generally regarded as a fuse it was indeed another minus for Rule of Law at the international level-a situation that has since left Iraq in continuous turmoil. ciii The same can be said for Afghanistan with some differences anyway. Africa Africa hosts many of the hottest international conflicts in the world. One example is the Somalia Conflict, an issue that has tasked the United Nations Conflict management machineries. The Civil war in that country (which has come to be a failed state anyway) saw many citizens dead and displaced. In the beginning, the Security Council called for a ceasefire among the parties and imposed arms embargo. civ A humanitarian and technical mission was put up to provide aid. Acting under Chapter VII of the Charter, the Council saw the need to use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations cv with troops from over twenty states including some 30,000 from the US. cvi The intervention by UN soon got entangled in America geo-politics in that horn of Africa Country. After American unilateral attacks, Ethiopia got assistance from the United States to launch attacks on that country, in the guise of fighting off terrorist threats. cvii Somalia is still in the throat of turmoil s as the centre cannot hold notwithstanding UN Security Council s Resolutions and the efforts by the Africa Union. cviii Rwanda is another spectacle of blood, which left a big hole in the hearts of shared humanity on account of sheer acts of man s inhumanity to man exacerbated by neglect of Charter s legal assignment by the relevant global authorities. By the time the dust of blood shed trailing the fighting between Government forces and the rebels in the 1990 settled, millions of lives had been sent to early graves. As earlier stated, the Council was not swift in its response, as the resolutions were not backed up with strong actions until things had deteriorated. cix The same can be said for the situation in Congo which also got enmeshed in 68

14 super powers politics. Disaffection with the way the Council handled the Congo crisis was one of the factors that precipitated the founding of Organization of Africa Unity. cx The South African situation deserves some comments. Apartheid in South-Africa is the very anti-thesis of the spirit of equality espoused in the UN Charter. cxi The Security Council had also at once described it as a crime against conscience and dignity of mankind. cxii The activities of some members of the Security Council particularly the United Kingdom would not allow the effort of the international community to bear fruits on time on the issue of Apartheid. It was the time US was also battling with racial segregation at home. cxiii A former British Prime Minister Margaret Thatcher had described Mandela who was later to be given a Nobel Prize for Peace and honoured with a Mandela Day by UN as a dangerous communist terrorist. cxiv This was the kind of posturing that beclouded the many General Assembly and Security Council s Resolutions condemning racial discrimination in the spirit of equality as an element of rule of law. Lip service was paid to the principle and little was done to exterminate the evil regime. Nigeria and the then Organization of African Unity took far reaching decisions but little was achieved till the regime finally collapsed. On a final note, actions by the Council as outlined in the above instances can be carried out under the banner of either chapter VI or chapter VIII. While the former deals with pacific settlement of dispute (regarded as being recommendatory), the later gives rise to the decision making powers of the Council. In ensuring that exercise of these powers does not go outside the realm of rule of law the International Court of Justice may have a role to play. cxv case: As the Court points out in homilies The political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitation on its powers or criteria for its judgment. cxvi In that case, the compatibility of the Council s resolutions with International law was discussed. The ability of the court to exercise its powers in checking and reviewing international coercive power of the more powerful states is an important element of rule of law. It is submitted that the arms of ICJ and ICC need to be strengthened to ensure its ability to curtail the excesses of the Council and its powerful members. Suggestions have been made 69

15 for an all round overhaul of the United Nations Security Council in particular and the UN in general. The case has also been made for a replacement. In the meantime it is suggested that the Charter of the UN be amended to review the powers of the Council especially as it has to do with exercise of veto. The Security Council should be made more democratic by including more permanent members from other parts of the world particularly Africa. cxvii Democratization of the Council or any set up is an important aspect of the rule of law to be able to meet the challenge of a unipolar 21 st Century. Conclusion The prospect of an organization is adjudged by its objective and the machineries put in place for its achievement. Bridging the gap between prospect and success is a challenge, a challenge whose epicenters is the rule of law. Rule of law at the level of the Security Council is not an all or nothing issue, it is a score card having its two sides. However from the foregoing there is no gainsaying the fact that the Council score sheet is in red as it has recorded more failures in the maintenance of peace and security through the instrumentality of rule of law than success. It is not the best model of the rule of law that many of its initial admirers had anticipated it to be on its conception and inception. The realities of the 21 st Century makes adherence to the rule of law more imperative. The world can hardly afford unregulated use of powers by the Council or any of its members particularly in the new unipolar world. If the League of Nations had fallen because of disregard for rule of law and intransigence of big powers then, there is a room for the United Nations to take a cue especially at the level of the Security Council. If the Cold War era hampered the Council with super powers rivalry, the New World era can learn to be above board in adherence to rule of law. If not, when the worst happens to this global platform the world may look back with mouth agape to utter these earlier paragraphed words of Lord Achborn. In the hindsight we should have put the establishment of the rule of law first, for everything depends on it cxviii 70

16 References i This Statement by Arthur J.G provides an illuminating background to the analysis in the following pages considering the fact that the Security Council is an exclusive club of powerful countries and possessors of Nuclear Weaponry. See generally Rajin C, Global Politics and Institution, Tellus Institute 2006.see also Nuclear Non Proliferation Treaty 1968 which exempts the five permanent members from a general ban on nuclear weaponry. ii The text of the article goes thus: To maintain international peace and security and to take to that end, effective collective measures for the prevention and removal of threats to the peace and for the suppression of acts of aggression or other breaches of the peace.. iii Article 24 of the Charter iv Susan Rice, President of the Security Council while reading the resolution of the Security Council on the political crisis in Cote D Ivoire on 21 st December, 2010 underscored this point. v International Law has provided the empowerment but international relations and politics appear to be undermining the process. vi Article 1 (1) the Charter vii Leland M.G, The United Nations, Steven & Sons UK (1961) (16, 17), Flemming D The United States and the League of Nations Praeger Publisher, New York (1973). For more on the League, See. Walter, F.B, A History of League of Nations, Oxford University Press (1982). Verzil J. International Law in Historical Perspective, Suthof, Netherland, (1968), viii Malcom M.S, International Law, Cambridge University Press (2005) ix ibid. x Bennet L. International Organisation: Principles and Issues[Prentice Hall,]New Jersey, US (1995) 67, 68 xi Ibid xii assessed on 13 th August, 2010 xiii Article 23 of the Charter still reflects the old position xiv Article 27 xv This appears to be one of the major challenges facing the operations of the Security Council especially as the ultimate body in the world where issues of peace and Security are considered. It is expected that such a body should represent epitome of order and rule of law. xvi Bennet op cit p. 68 xvii assessed on 14 th August, 2010 xviii General Assembly Resolution 1991 (XVIll) xix Ibid. xx That for example explains why Turkey succeeded Nigeria in the presidency the later having been President in August and the former in September, See Chidi, O. Agenda for Nigeria s Security Council Presidency. The Guardian, Tuesday July 6, 2010 p. 68 xxi assessed on 14 th August 2010 xxii Ibid. xxiii This may be viewed as another breach of rule of law but if we consider the ever dynamic nature of the world and the challenges facing maintenance of law and order, it is not possible for Council not to be meeting under the circumstance as depicted above. xxiv Established under Resolution 692 (1991) xxv Established under Resolution 1373 (2001) 71

17 xxvi See particularly Article 2(4). Article 51 of the Charter which provides for self defense has been a subject of controversy on whether the principle of anticipatory self defense is permissible. The article has been described as myopic for its inability to anticipate let alone address the rise in surrogate warfare prompted by rogue states and international terrorists. See generally, Frank T. Recourse to Force: State Action Against Threats and Armed Attacks (Cambridge University Press 2002) p.50 xxvii The National Security Strategy of the United States September 2002 at P.15 available on assessed on 18th Jan xxviii This provision of the Charter is the basis for UN armed action in Korea in the 1950s during the Korean War and the use of Coalition forces in Iraq and Kuwait in In the case of Iraq the final,resolution to force Iraq out of Kuwait was Resolution 678 xxix See Article 2(4) Article of the Charter which provides for self-defense has been a subject of controversy on whether the principle of anticipatory self defense is permissible. xxx This position is not controverted by the 1966 authorization of Britain to use force against tankers discharging oil from Rhodesia as this authorization was under Article 42 of the Charter. xxxi This should be differentiated from peace keeping. While this element of collective security identifies aggression and employs military force to defeat the aggressor, the later employs military force to prevent fighting or stop conflict. Developing Countries such as Nigeria has the highest contribution to peace keeping xxxii Article 24(1) xxxiii The principal organs of the UN are the General Assembly, the Councils i.e. Security Council, Economic and Social Council and the defunct Trusteeship Council, the Secretariat and International Court of Justice, George Allen International Law Unwin Ltd (1978) P.194 xxxiv Ibid. xxxv Grecy Janet, Read the First Print First Some Questions Raised at the Science for Peace Conference on UN Reform, Peace Magazine Jan-Feb 1994, pg. 20 xxxvi Dicey, A. V. An Introduction to the Study of Law and Constitution 9th ed. (1885) pp See also the Comment on Rule of Law by Lord Archborn quoted in The Punch Nov. 1, 2010 pg. 69, See further, Nigeria at the UN (official) [Third Press] Lagos (1991) p 94. xxxvii Randy Peerenboom, The Future of Rule of Law: Challenges and Prospects for the Field 2009 Hague Journal on the Rule of Law Volume 1 Issue 1 P.7 xxxviii One other way the Charter promotes international Law and rule of law are its provisions enabling the organization to advance the codification of International Law (Article 13). Towards that end, the International Commission was created in The Commission has midwife a lot of international treaties such as the Vienna Convention on Diplomatic Immunity (1963), International Convention on the Elimination of All forms of Discrimination (1968), among others. See the definition of rule of law by former UN Secretary General, Kofi Anan: it refers to a principle of governance in which all persons, institutions and entities, public and private, including the state itself are accountable to laws that are publicly promulgated, equally enforced and dependently and adequately adjudicated (Report of the Secretary General, UN DoC s/2004/616 (report Aug. 2004). xxxix See note 36 xl Bennet L; op. cit xli Article 2 lists out the principles. However this is not exhaustive as several other rules and principles are scattered throughout the charter. xlii ibid Article 2(1) xliii Article 2(4). This has its basis in the Kellog and Briand Pact of 1928 between United States and France and Doctrine of Stimson of 1933 which later developed on the Pact as a multi-lateral treaty. xliv Lervy op cit p.62 72

18 xlv Article 2(5) See the Corfu Channel case (ICJ Reports 1949, p 4, 35) in which Article 2(4)was interpreted with the holding that respect for territorial sovereignty is an essential foundation of international relations. xlvi Article 2(6) xlvii Article 2(25) xlviii Article 5 See the Report of the Secretariat Panel on Collective Security: A more Secured World: Our Shared Responsibility A/59/565 (Dec 2004). Today the world is still divided on the principle of self defense or collective self defense based on the interpretations of Articles 7(2) whether it is self executory or any affected state need to wait on actual or physical threat before she can exercise the self defense option. xlix Ibid. l One ready example is Liberia where ECOWAS intervened militarily to restore peace in that West African Country. Another crisis is brooding in Ivory Coast where there may be need for regional, continental and global body to intervene. Incumbent President Laurent Gbagbo is festering serious crisis in the West African sub-region. li See Articles lii This is one of the banes of the Security Council and this is in spite of the provision of Article 24(2) requiring the Council to abide by the principles and purposes of the UN. Since the equality principle is compromised in the status of membership by way of discrimination, then little wonder members with veto power are beyond reprieve. liii Report of the Secretary General: UN Larger Freedom: Towards Development Security and Human Rights for All A/59 (2005) pg 33 liv For more on self defense see Schachter Self Defense and the Rule of Law 33 ASIL 1989; see also generally Dinstein Y. War Aggression and Self Defense Cambridge lv Secretary General Report (2005) p. 96 lvi ibid p. 29 lvii ibid p. 31 lviii ibid p. 35 lix See generally Loius B.S, The United Nations: The Next 25 years Oceans Publication Inc. Though not generally regarded as law General Assembly resolutions for instance are regarded as authoritative because they were taken as expressions of agreement of all states on what constitutes the rule of law as Oscar Schacter put it: see Caster et al, International Law Aspen Publisher (2007) 133, 134 lx The Report of the Secretary General to the Security Council :Uniting our Strengths Enhancing the UN Support For the Rule of Law A161/636- S/2006/ p. 2 lxi ibid lxii ibid The highlight of the Rule of Law and Transitional Justice is essentially about the rules and strategies in post conflict societies for example, adherence to the rule of law and restoration of stability in such societies. lxiii It is titled Strengthening International Law, Rule of Law and Maintenance of International Peace and Security see ibid pg 3. See the Two Council Presidential Statements made after the discussion (S/PR55/2004/34) and (s/prst/2006/28) lxiv For example, Dr Aafia Siddiqui has been in a prison in the United States since 2006 without trial and nobody is asking question. lxv See the Resolution 60/1/per 134 (9) lxvi Report of the Secretary General,

19 lxvii See generally. Dafur Crisis and its Implications on Peaceful Co-existence in Africa paper presented of the Conference on War and Conflicts in Africa Texas University, Austin U.SA March, lxviii See Article 3 of the Rome Statute. Thus ICC is currently dealing with five situations: The Democratic Republic of Congo, Northern Uganda, The Central African Republic, The Darfur Region of Sudan and Kenya (see Sang Hyun Song before the ICC Conference Kampala Guardian May 28, 2010 pg 511 Sang Hyun is the President of ICC. The genocide in Libya is also been mentioned as a case that should be taken before the ICC. lxix Guardian June p. 10 lxx The US is well known for shunning International treaties, other examples include the Kyoto Protocol Vienna Convention on Law of the Seas 1998 to mention a few. lxxi Report of the Secretary General 2006 lxxii Charles C Peace Soldiers: UN Military Force in Making War, Making Peace, World Wars Publishing Coy, 1990 pg 400. See also year Book of the UN 1950, R 226, 230 lxxiii Ogunleye O. The UN Response to Rwanda Conflict. The Valiant not Valid etc Nigeria, March 29, lxxiv See Report of Secretary General, See also Razin C. op cit. The Horrors shown in two popular documentaries on Rwanda titled Sometime in April and Hotel Rwanda and the lackadaisical attitude act of World Powers to the carnage acted therein are not works of fiction. They were worst in reality. lxxv Article 27 lxxvi Article 2 (1) lxxvii Article 24 (2) lxxviii Malcom op cit lxxix Resolution 54 (1948) lxxx This one of the reasons America is seen as a biased arbiter in the Middle East Peace Processes. lxxxi See generally Mearsheimer, The Israel Lobby and US Foreign Policy Harvard University, (2007) lxxxii William R. K,The Twenty Century World Oxford University Press New York 1992, 360 lxxxiii See generally Awalen S. Moshe: PLO and Israel: From Armed Conflict to Political Solution, pg lxxxiv Ibid lxxxv Ibid lxxxvi Ibid lxxxvii Clive J, Eric C, Israel: Challenges to Identity, Democracy and the State Moutledge, New York, (2002) p. 109 lxxxviii For issue on occupation of Gaza for example see Laila El-daills, Israeli Occupation of Gaza, Daily Trust September, 30, 2005 p. 13 lxxxix ibid xc Resolution 713 (1991) xci Resolution 749 (1992) xcii Resolution 757 (1992) xciii International Court of Justice Report 1992 pg ILR 1, 2, xciv Sctatcter, O, United Nations, Law in the Gulf, 85, AIL, 1991, Resolution 660 (1990), adopted same day to condemn the attack. xcv Malcom op cit, 1136.Resolution 688 (1991) 74

20 xcvi Resolutions 660 (1990), 661 (1990), 662 (1990), 678 (1990) which authorized use of force xcvii Kirgis, International Organisation in their Legal Setting 2 nd Edition, St Paul 1993 pp 854, xcviii Seyi.O, Iraq As a Metaphor of Human Intelligence This Day Newspaper January 2010, 07 p.18 xcix Resolution 14th (November 8, 2002) subsequent ones was Resolution 1511 (2003) c Iraq: Stories the American Public is Not Aware of Daily Trust, April 16, 2007 pg 19 Tunji A. Iraq, Bombs and History Daily Trust, September 7, 2007 ci After the 9/11/2001 invasion, it was clear that President Bush was preparing to retaliate with or without the support of the Security Council and whether or not the rule of law was observed. This was quoted in Richard Clarke, Against all Enemies (Free Press, 2004) p. 24 cii BBC News of November 2010 Stephen Wall, The US can only be constrained by International Laws The Independent 9 November 2004 p.3 ciii Ibid see also Philips op cit 187,188 civ Resolution 733(1992) cv See particularly Article 42 of Chapter VII of See also UN S/24868 (1992), and Security Council s Resolution 94 (1992) cvi See UN S/24976 (1992) re-affirmed in Resolution 837 (1993) cvii Ethiopia in Somaila: The US Connection Sunday Trust, Jan p. 15 cviii Pious O.A; Unsetting the Somalia Dust The Guardian February, See also Sheikh M.A Anger in Somalia Crescent, UK 2008 July, p. 15 cix Resolution 893, 909, 912, 916 (1994) cx Tunde A; Relationship Between OAU and UN, A Case Study of Congo Crisis ( ) in Akindele (ed) Journal of International Affairs Vol pg 17: For a similar situation in Namibia see Peter H, A History of Namibia UNESCO, Paris cxi See Preamble to UN Charter cxii Nigeria in the UN op cit 64 cxiii See generally Sander S, Martin Luther King WPC, US 2005 cxiv Christian, S. Nelson Mandela Random House, New York (2006) p. 100 cxv For more on ICJ see Heland, M. The United Nations Columbia University, London (1960), Bowet et al, International Court of Justice, Process, Practice and Procedure, London 1997 cxvi ICJ Reports (1992) p. 45 cxvii The reform of the Council on this score has long been canvassed. It echoed more recently when Nigeria. President Jonathan made the call at a UN meeting. The Nation, Sept. 25, 2010 p 3. The Guardian July 6, 2010, The Guardian June 1, 2010 pg 1 & 2 cxviii See note 36 75