Dapo and Marko both know that I must be one of the worst blog editors ever. I don’t know how to blog, because I can’t (yet) conceive of something written without shedloads of research and footnotes. Nor do I know how to post posts, despite it being explained to me, patiently, slowly, and using simple words. If either of them says a child of four could do it, then all I can do is echo Groucho Marx and ask that someone find me a child of four. If you are reading this, then one of them has done the computer magic.
Tonight I am in Manhattan, and have just returned to my hotel after eating too many mussels in a rather pleasant bistro. But as it is New York, and a “boutique” hotel, it is virulently non-smoking, and so I am writing this without benefit of cigars. There is a small balcony outside my room window but, of course, the window is fixed fast shut for fear that an open window might interfere with the air conditioning. It is late March for pete’s sake—who would want air conditioning now? And who wants to sit in a fridge anyway?
Alan Rickman is appearing in a play a few blocks away. As I wandered back from the bistro, I was somewhat surprised to see crush barriers and a reasonable crowd outside the stage door. Never mind a career as a distinguished classical and character actor, as well the campest Sheriff of Nottingham ever, or even a thoughtful if bleak debut as a film director (The winter guest released in 1997 in case you are wondering—is that nearly a footnote, or merely an aside?), simply play a witch in a blockbuster movie or three and the world is your lobster.
Much as I admire his work, I am not here to collect Alan Rickman’s signature. I have not read any of the Hairy Potter books nor seen the films. I was so not part of the demographic awaiting him, clutching autograph books, at the end of his performance. I am here to participate in a retreat called by the President of the General Assembly, to discuss what seems to be the never-ending search for Security Council reform.
And jeez, I desire to do some inhalation exercises with a cigar.
It is frequently said that the problem with the Security Council is that it reflects the political realities and concerns of 1945. I don’t think that this is the case. The problem doesn’t stem so much from 1945 as from 1919: to a good extent, the gross structure of the UN mirrors that of the League of Nations—a plenary body topped by a body of restricted membership, some of whose members are permanent. There are two differences between the League Council and the Security Council which are relevant to calls for current reform. The UN Charter is much more difficult to amend than the League Covenant, with the consequence that permanent membership of the League Council was more fluid than that of the Security Council—see Yehuda Blum’s Proposals for Security Council reform, 99AJIL 632 (2005) for details. Also, in principle, every League member had a veto, in both the League Council and Assembly because, in accordance with diplomatic practice of the time, the League proceeded on the basis of unanimity.
It is true that there was the doctrine of qualified unanimity, that a member whose interests were directly involved in a dispute could vote regarding resolutions taken in relation to that dispute, but that its vote was not counted for the purposes of calculating unanimity. This doctrine, formulated by the Permanent Court in the Interpretation of the Treaty of Lausanne advisory opinion, was controversial and (as far as I can recall without having books or notes to consult) avoided in practice and not implemented.
The doctrine also effectively put the nail in the coffin of thoughts of US participation in the League, or at least in the Council on an ad hoc basis as a non-member in relation to disputes involving it, as qualified unanimity would mean that it could not veto any resolution that sought an advisory opinion on that dispute. The guarantee it thought it saw in the Eastern Carelia advisory opinion that recourse to any method of pacific settlement of disputes, including an advisory opinion request, was dependent on the parties’ consent was rendered null by Interpretation of the Treaty of Lausanne.
Although the veto was, more or less, discarded in the UN, and is only retained by the P5 in relation to substantive issues, the structure of permanent and non-permanent members in the Council reflects that of the League, and also its underlying justification of great and small powers. But given that some of the proposals for the reform of the Security Council call for the enlargement of the group of permanent members (with or without a veto), should we replicate the 1919/1945 solution by doing so? If the contemporary situation is seen as unsatisfactory because it reflects the politics of 1945, how long would it be before the 2012 solution is seen as unsatisfactory because it reflects contemporary politics? Would the creation of new additional permanent members simply be building obsolescence into the Security Council?
Experience shows that that political solutions or adopted for good reasons in the past can cause subsequent problems simply because they are tied too closely to the circumstances of their creation. While some Charter provisions are susceptible to expansive, if not transformative, interpretation, others are not—and the provisions on Charter amendment and Security Council composition fall into the latter category. No matter how committed one is to the notion of the inherent indeterminacy of legal texts, these provisions admit of little scope for imaginative construction. Surely the aim should be to try to formulate a solution which addresses perceived inadequacies currently bedevilling the composition of the Security Council (such as the under-representation of Africa), but one which also is flexible enough to contain the possibility for future change without the need for another formal amendment of the Charter some years hence?
It is odd, but in thinking about this meeting and the question it poses I was struck by the perception that States are often in flux, while intergovernmental organisations give at least the appearance of rigidity. In the past few decades, the world of States has been transformed by, for instance, the dissolution of the Soviet Union through to the possibilities, probably as yet only dimly perceived, of the Arab Spring. The referendum for Scottish independence is imminent, if still on the horizon, but it does demonstrate that while we can accept a malleability in the identity of the principal subjects of international law, changing the institutional structure of how States interact seems much more difficult.