# The Author 2006. Published by Oxford University Press. All rights reserved.

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The United Nations Organization and Global Power Politics: The Antagonism between Power and Law and the Future of World Order
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Hans Kochler

Abstract
The dilemma faced by the United Nations Organization at the beginning of the 21st century lies in its inability to reconcile the structural realities of power politics in a unipolar world with the requirements of the international rule of law. The paper analyses the normative contradictions in the UN Charter that result from the antagonism between power and law and reviews the prospects for a fundamental reform of the United Nations Organization that would guarantee its survival under the radically different circumstances of the post-Cold War environment. In that regard, the paper emphasizes the need for a new paradigm of international organization that will do away with the idea of special privileges accorded to the great powers of 1945, and emphasizes the need for a better regional balance in the decisionmaking processes at the United Nations.

I. Introduction
The basic weakness of the system of international organization represented by the United Nations consists in the fact that it contains an irreconcilable normative contradiction, namely between (a) the principle of the sovereign equality of Member States and (b) the privileged position of the ve permanent members of the Security Council, expressed in the veto right. Thus, a heavy price has been paid by the international community for the ( partly) supranational authority vested in the Security Council. Incorporating the power

Professor and Chairman, Department of Philosophy, University of Innsbruck (Austria); Visiting Professor, Polytechnic University of the Philippines, Manila (email: hans.koechler@uibk.ac.at).

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Chinese Journal of International Law (2006), Vol. 5, No. 2, 323 340 doi:10.1093/chinesejil/jml016

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balance as it prevailed at the end of the Second World War, the world organization has been unable to reform itself along democratic lines. The Charter is itself based on a compromise between power and law, combining two contradictory elements or procedures: (a) the international rule of law is ensured through a system of collective security guaranteed by the Security Councils enforcement powers under Chapter VII; whereas (b) the authority of the Council, guaranteeing the rule of law, is intrinsically linked to the veto power of the permanent membersa privilege which mainly serves their individual security interests (as opposed to those of collective security) and exempts them de facto from the application of the very rule of law they are supposed to ensure. Ever since its foundation, this state of affairswhich may be referred to as the dialectic of power and lawhas condemned the world organization, in particular the Security Council, to a modus operandi that is characterized by a policy of double standards (a predicament which has become even more acute under the conditions of the present unipolar power constellation, prematurely called the New World Order). The unilateral actions of its most powerful Member State increasingly threaten the organization with marginalization as the events of 2002/03 in connection with the war against Iraq have drastically demonstrated. Because the international rule of law cannot be enforced against a permanent member of ` the Security Councilthe Charters ban on the unilateral use of force being ineffective vis-avis the permanent membersthe case will have to be made for a major paradigm shift by way of a democratic reform of the United Nations Organization (including the abrogation of the veto right) or, absent the endorsement of such a reform by the ve permanent members, for the creation of a new international (eventually supranational) organization by international treatysimilar to the initiative undertaken by UN Member States, in deance of the only superpowers declared will, for the creation of an international criminal court as internationalthough not yet universalorganization of criminal justice. If no action towards reform is undertaken and if the present state of paralysis prevails, the world organization may well suffer the fate of the League of Nations.

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II. The United Nations and the power balance of 1945

The establishment of the United Nations Organization after the Second World War was motivated by the search for a viable system of peaceful co-existence among all States. Being aware of the catastrophic failure of the League of Nations in its mission to preserve the peace, the founders of the world organization were determined, if one is to believe their proclamations, to avoid the mistakes of the Leagues Member States. However, the four sponsoring governments1 had not really learned the lessons of history. They simply could not resist the temptations of power politics, rst and foremost of which is the tendency to eternalize a given power balance, particularly when this has been achieved in the course of war. Accordingly, the Charter of the United Nations reects
1 The United States, the United Kingdom, the Soviet Union and China.

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the power balance of 1945.2 The set of norms contained in the UN Charter and their particular hierarchical order are the result of traditional realpolitik, not of a genuine and idealistic review of the foundations of international relations, as it would have been called for after the collapse of the international order in the course of a world war. The language of the Charters Preamble and of Chapter I (Purposes and Principles) is highly idealistic, while the procedural rules and mechanismsparticularly those outlined in Chapter VII (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression)are entirely realistic. Ever since the fateful days of 1945, the antagonism between realism and idealism has been a basic characteristic of international organization under the aegis of the United Nations. The underlying normative contradiction (resulting mainly from the inconsistent application of the principle of sovereign equality due to the introduction of the veto privilege) has been considerably more acute than the one resulting from compromises with power politics during the period after the First World War in the international system represented by the League of Nations. Unlike the Charter of the United Nations, the Covenant of the League did not contain a veto right for great powersa fact which, as Zbigniew Brzezinski rightly observed, had prevented the United States from joining the League of Nations.3 In their negotiations at Dumbarton Oaks,4 the sponsoring governments of the United Nations did not take up the approach of the League of Nations concerning the equality of Member States in voting procedures in the Security Council; they were not prepared to draw the procedural consequences from the notion of national sovereignty (implying normative equality among all States) which they had enshrined in Article 2(1) of the Charter. The insertion of the veto privilege into the decision-making under Chapter VII of the Charter stands out as the most striking contradiction in the normative system of international relations represented by the United Nations. This power-centred and legally contradictory approach was the driving force behind the establishment of the new organization by the victors of the Second World War,5 but, at the same time, it has condemned the UN Security Council to being a tool of great power politics. The supremacy of power over law (which has

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2 For further details, see the authors analysis: The United Nations and International Democracy. The Quest for UN Reform. Studies in International Relations, XXII. Vienna: International Progress Organization, 1997, Chapter I: The Structure of the Post-War System: The UN Charter as the Embodiment of the Spirit of 1945, 9ff. 3 The Choice: Global Domination or Global Leadership (2004), New York, Basic Books, 8. 4 For a detailed description of the negotiating process that led to the establishment of the organization, see Robert C. Hilderbrand, Dumbarton Oaks: The Origins of the United Nations and the Search for Postwar Security (1990), Chapel Hill, University of North Carolina Press; and Stephen C. Schlesinger, Act of Creation: The Founding of the United NationsA Story of Superpowers, Secret Agents, Wartime Allies and Enemies, and Their Quest for a Peaceful World (2003), Boulder, CO and Oxford (UK), Westview Press. 5 In regard to the United States, this approach has been succinctly described by Peter Gowan: . . . the Rooseveltian package simultaneously sought to ensure that the UN could in no way become an obstacle to the pursuit of US global strategy. The cosmopolitan ideal was gutted by giving the General Assembly no signicant policy-making power whatever. Decision-making authority was concentrated in a Security Council without the slightest claim to rest on any representative principle other than brute force. (US : UN, in: New Left Review 24 (2003), November December, 14.)

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completely eroded the notion of the international rule of law) has been the predicament of the world organization ever since its foundation.

III. The UN Charter: unavoidable compromise or irreconcilable contradiction between power and law?
In structural terms, the United Nations Organization is based on a compromise between power and law: the international rule of law is preserved through a system of collective security that is essentially expressed in the Security Councils far-reaching enforcement powers under Chapter VII of the Charter, which demonstrates the force of law in the UN system. The enforcement power (i.e. authority) of the Council, making its resolutions under Chapter VII legally valid and binding upon all, is, in turn, based upon the privileged position of the ve permanent members (dened by their veto power), which implies that they are de facto immune from the very enforcement actions of the Council. This relationship demonstrates the law of force (or rule of the powerful) in the system of international relations. The latter signies an almost total lack of a separation of powers (the permanent members being allowed to act as judges in their own cause) and has, unavoidably, led to a policy of double standards being implemented by the permanent members in the service of their own national interests. The statutory privilege of those States that are supposed to be the main enforcers of the international rule of law has introduced an element of international anarchy into the UN system itself. The almost absolute veto privilege of the ve permanent members (including the double veto)6 is indeed an expression of a fundamental normative contradiction. While the international exercise of power (e.g. the arbitrary, eventually illegal, use of force) by the non-permanent members is supposedly tamed by law (through the Councils collective authority under Chapter VII), the very power of the ve permanent members of the Security Council subverts the international rule of law because of their being exempt from the application of the law in cases of their own transgressions: The obligation to abstain from voting in matters when a Member State is involved in a dispute (including cases of aggression committed by a Member State) does not apply to compulsory decisions under Chapter VII.7 The permanent members enjoy virtual immunity in the conduct of their relations with other States. Their special status in the UN Charter has made the problems of the enforcement of international law caused by the absence of a separation of powers more than

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6 On details of this procedural rule in the framework of the UN Charter, see the authors treatise: The Voting Procedure in the United Nations Security CouncilExamining a Normative Contradiction in the UN Charter and its Consequences on International Relations, Studies in International Relations, XVII (1991), Vienna, International Progress Organization. 7 According to Art.27(3) of the Charter, the obligation to abstain from voting only applies to non-binding resolutions on the peaceful settlement of disputes according to Chapter VI and Art.52(3) of Chapter VIII.

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obvious. In the above-described normative framework, the dialectic of power and law in international relations, is evidenced in the following contradictory assertions: (a) The power (of the ve permanent members) is required to enforce the law, in prin` ciple, vis-a-vis all Member States. (As succinctly demonstrated by Hans Kelsen, power without mechanisms of enforcement is no law, but a set of moral principles.)8 (b) At the same time, the law (in the meaning of the international rule of law) is being compromisedbecoming ineffective, even negatedbecause of the overwhelming power of the ve permanent members. Their privileged position enables them to prevent any enforcement of the law within the Charter regime whenever their interests, as dened by themselves alone, are affected. Whatever may be said of the United Nations purpose of promoting equal relations between all Statesthe Charters Preamble evokes the equal rights . . . of nations large and smalla basic normative inconsistency has been built into the Charter through the veto rule of Article 27. The contradiction between the simultaneously existing norms of equality (of all States) and inequality (in regard to the special status of the permanent members in matters of international peace and security and other important matters such as Charter amendment) has not only undermined the legitimacy of the United Nations Organization as such, but it has precluded even rudimentary forms of a separation of powers in that system. Thus, an element which is indispensable for the rule of law, whether on the domestic or international level, is completely missing in the statutory framework of the United Nations. The historical truth is that the world organization would never have been established if the veto privilege would not have been granted to the victorious powers of the Second World War.9 For reasons of realpolitik, the Charters principle of sovereign equality (Article 2(1)) has been compromised from the very beginning. For these States, sovereign equality meant equality among the ve permanent members. As a result of this normative contradiction, the United Nations system of collective security has been awed from the very beginning in so far as the international rule of law is concerned. Because of the will of the sponsoring governments that were to become the Security Councils permanent members,10 the world organization has had to operate on the basis of a fundamental normative inequality of Member States. Not surprisingly, the voting procedure laid out in Article 27 of the Charter has contributed to the perception that the power equation in the world organization can best be described by the formula the permanent members versus the rest.
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8 Hans Kelsen, Pure Theory of Law (2000), translation from the second (revised and enlarged) German edition by Max Knight, Union, NJ, Lawbook Exchange. 9 Cf. the statement of US Secretary of State, Cordell Hull (made shortly after the establishment of the United Nations): . . . our government would not remain there a day without retaining the veto power, The Memoirs of Cordell Hull, Vol.2 (1948), New York, Macmillan Co., 1664. 10 France was not represented in the negotiating process at Dumbarton Oaks.

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IV. The antagonism between power and law: implications for world order in a bipolar and a unipolar system
The antagonism between power and law has been brought about by the fact that the Charter tries to build the international rule of law on the exemption granted to the main guarantors of the lawthe Security Councils permanent membersfrom the enforcement of that very law whenever their (vital) interests are at stake. Manifold are the implications of this normative contradiction for the global order. During the period of global bipolarity that prevailed through the Cold War (or the socalled EastWest conict) up to the year 1989, the Security Council was more or less paralyzed as a result of the mutual blockage by the two rival superpowersthe United States and the Soviet Unionby means of their veto right. The General Assemblys Uniting for Peace Resolution of 195011 was an unsuccessful effort to circumvent that blockage. Upon the unexpected collapse of the Soviet bloc in the course of the events of 1989, the obvious end of global bipolarity was prematurely diagnosed as leading to a renaissance of the United Nations Organization, supposedly enabling it for the rst time since its foundation to fully exercise its mandate of collective security. The global unipolaritybrought about by the unrivalled supremacy, or hegemony, of one permanent member, namely the United States12has made possible the Security Councils Gulf war resolutions of 1990 and 1991.13 The Councils newfound capacity to act and, in particular, to back up its resolutions with credible measures of enforcement depended upon the other permanent members subjecting themselves, more or less voluntarily, to the will of the only superpowera form of unanimity which was not necessarily the one envisaged by the sponsoring governments in 1945. This constellation, which amounted to a complete absence of a balance of power in the sense of the classical denition of this term in the theory of international relations,14 did not last very long. The unchallenged political dominance of the United States in the Security Council, not to be confused with that countrys military supremacy, was effectively ended in the course of the Kosovo war waged by a coalition of NATO Member States against the Federal Republic of Yugoslavia in 1999. Whatever statements to the contrary may be made by interested parties, the non-authorization of the use of force against Iraq in 2003

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11 General Assembly Res.377(V) adopted at the 302nd plenary meeting on 3 November 1950. 12 For a comprehensive analysis of the role and position of the United States as global superpower, see Chalmers Johnson, Blowback: The Costs and Consequences of American Empire (2003), New York, Owl Books. 13 On the legal aspects of the UN Gulf war Resolutions, see Hans Kochler (ed.), The Iraq Crisis and the United Nations: Power Politics vs. the International Rule of LawMemoranda and Declarations of the International Progress Organization (19902003): Studies in International Relations, XXVIII (2004), Vienna, International Progress Organization. 14 Emer de Vattel dened the international balance of power as a state of affairs such that no one power is in a position where it is preponderant and can lay down the law unto others: . . . une disposition des choses au moyen de laquelle aucune puissance ne se trouve en etat de predominer absolument et de faire la loi aux autres . . ., Droit ` des gens, ou principes de la loi naturelle, appliques a la conduite et aux affaires des Nations et des souverains (1758), book III, Chap.2, s.47.

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is the most recent case in point. In both cases, the United States and her allies had to rely on unilateral (military) measures in order to implement their agenda. Unipolarity in terms of power relations ( particularly as regards military power) is juxtaposed with multipolarity in terms of the diverging interests of UN Member States, and particularly the permanent members. The implications of this constellation for the United Nations Organization are highly complex and far-reaching. After the prolonged paralysis during the Cold War, which was followed by a short-lived renaissance in the years following the end of the bipolar world order, a new, though structurally different, state of paralysis has befallen the United Nations. This time, it is mainly resulting from the organizations marginalization. The present situation is distinctly different from the organizations earlier predicament, which was caused by the mutual blockage of Security Council decisions by two rival superpowers. Although the Security Council was largely paralyzed, the world organization was not marginalized. Because of the fear of reprisals from the other side, a lack of endorsement of the use of force by the Council could not simply be ignored by either of the two superpowers, not to mention the medium powers in so far as they were allies of one of those powers. In the unipolar constellation of today, which is manifested in the military supremacy of the United States,15 the situation is entirely different. To the extent that the Security Council does not endorse the policies and strategies (including military action) of that country, the world organization is being sidelined, declared irrelevant or even obsolete by that power. The declarations made in that regard by US President George W. Bush and other US ofcials in the course of the events preceding the Gulf war of 2003 abound. The permanent member that alone enjoys the position of superpower in the present, albeit transitory, global constellation has developed a new unilateralist strategy backed up by an openly declared hegemonial doctrine of international relations.16 The United States unabashedly claims supremacy for its own national interests over those of all other nations; the assertion of national interests gains preeminence over all other foreign policy considerations and international obligations, including those resulting from general international law, membership in international organizations, and obligations under international treaties. The most powerful Member State has, thereby, not only marginalized the Security Council as the supreme executive organ of the United Nations, but has seriously undermined the world organization as such. This tendency, although having been felt already in the period following the collapse of the Communist bloc, has become even more obvious since the events of 11 September 2001. The Security Council Resolutions adopted prior to the war in Afghanistan in 2001, particularly Resolutions 1368 (2001) and 1373 (2001), were arbitrarily interpreted by the
15 As already mentioned, unipolarity in military terms may exist simultaneously with political multipolarity. The question as to the overall character of the international system is whether military superiority is the dominant factor, eventually absorbing political multipolarity. 16 Peter Bender has highlighted striking similarities between the hegemonial doctrine of the United States and that of the Roman EmpireAmerica: The New Roman Empire? in: Orbis: A Journal of World Affairs (2003), Vol.47, No.1 (Winter), 145 59.

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United States in such a way as to authorize a de facto unilateral use of force against that country.17 The unilateralist tendency has further been strengthened in the course of the events that led to the Iraq war of 2003.18 It has been quasi-authoritatively expressed in the National Security Strategy of the United States of America (September 2002) and the National Strategy to Combat Weapons of Mass Destruction (December 2002). The former has introduced the notion of preventive war19 which is alien to the UN system of collective security20 and to modern international law in general. The two Bills introduced in the US House of Representatives in 2003, which condemn judicial reference to foreign and international law, further underline this unilateralist tendency.21

IV. The Security Councils role in the framework of a unipolar world order
According to the protagonists of the so-called New World Order that was triumphantly, albeit prematurely, declared by President Bush senior at the end of the 1991 Gulf war,22 the Security Councils position is effectively meant to be that of an executive organ of the United States, lest it will play no role at all. On the basis of this imperial doctrine, the role left for the supreme executive organ of the United Nations will be rather marginal, namely to legitimize decisions that were taken outside the Chambers of the Council. As extension of United States power, the institution is expected to issue rubber-stamp decisions in conformity with the national interests of its most inuential actor.

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17 Neither of the two Resolutions explicitly refered to possible military measures against Afghanistan. Resolution 1368, adopted on 12 September 2001, was not based on Chapter VII and merely called on the international community to redouble their efforts to prevent and suppress terrorist acts. Resolution 1373, adopted on 28 September 2001, is based on Chapter VII and sets out obligations of States to prevent and combat international terrorism without giving authorization for specic military actions. 18 On the implications of this policy for international law in general see Slim Laghmani, Du droit international au droit imperial? Reexions sur la guerre contre lIrak, in: Actualite et Droit International. Revue danalyse juridi que de lactualite internationale (2003), April, online journal (www.ridi.org/adi). 19 The United States has long maintained the option of preemptive actions to counter a sufcient threat to our national security. The greater the threat, the greater is the risk of inactionand the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemys attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively, National Security Strategy, Chap.V. 20 The Minister of Defense of Australia went as far as to declare the UN Charter as obsolete. See Robert Hill, The UN Charter is Outdated, in: The International Herald Tribune (2002), 2 December, 8. 21 108th Congress, 1st Session, 18 November 2003, H.RES.446: Expressing the sense of the House of Representatives that the Supreme Court should base its decisions on the Constitution and Laws of the United States, and not on the law of any foreign country or any international law or agreement not made under the authority of the United States; 108th Congress, 2nd Session, 17 March 2004, H.RES.568: Expressing the sense of the House of Representatives that judicial determinations regarding the meaning of the laws of the United States should not be based on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements inform an understanding of the original meaning of the laws of the United States. 22 On details, see the authors treatise: Democracy and the New World Order, Studies in International Relations, XIX (1993), Vienna, International Progress Organization.

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This situation has not only weakened, or again paralyzed, the Security Council in a way considerably more serious than during the Cold War period; it now threatens to de-legitimize the entire world organization as guarantor of the international rule of law. The extreme imbalance of power relations in the international system in general, and among the ve permanent members of the Security Council in particular, in favour of only one Member Statei.e. the total absence of a balance of power23has become the fundamental predicament of the United Nations Organization at the beginning of the third millennium. The problem has been aggravated as a result of the fact that the UN Charter, unlike domestic constitutions, does not provide an elaborate framework of checks and balances between legislative, executive and judicial powers. Apparently, it was the intention of the organizations founders that virtually all powers (competencies) should be concentrated in one institution the Security Council, where the then sponsoring States (now permanent members) enjoy a special statutory privilege. Unanimity among the great powers of that time was considered, by those very powers, more important than considerations of equality, not to speak of transnational democracy. Against this background, the organization is basically facing two dilemmata from which there is no escape under the present Charter (which, in turn, cannot be amended without the consent of the Security Councils permanent members): ` (a) The United Nations cannot enforce the rule of law vis-a-vis the most powerful member Stateneither in strictly legal terms (because of the de facto immunity, due to the veto privilege, of that country from enforcement measures under Chapter VII) nor in political terms. (In specic cases, the preponderance of US power may induce even permanent members, for fear of reprisals, to give up their objections to Security Council Resolutions sponsored by that country.24) The unilateral war against Iraq in 2003 (through a coalition of the willing put together by the United States in circumvention of the Security Council25) is proof of the rst aspect of the Councils incapacity; the Security Council Resolutions, adopted in 2002 and 2003, respectively, though not continued in 2004, granting US personnel immunity from prosecution by the International Criminal Court26 are proof of the second
23 On the notion and theory of the balance of power, see Hedley Bull, The Anarchical Society: A Study of Order in World Politics, Third Edition (2002), Houndmills (UK)/New York, Palgrave, esp. 97ff. 24 The late Erskine Childers has drawn our attention to the methods of pressure and political blackmail that were used to obtain the Gulf war resolutions of 1990/91. See Erskine Childers, The Demand for Equity and Equality: The North South Divide in the United Nations, in: Hans Kochler (ed.), The United Nations and International Democracy (1995), Vienna, Jamahir Society for Culture and Philosophy, 32ff. 25 For details, see Declaration of the International Progress Organization on the War of Aggression against Iraq (24 March 2003), in: Hans Kochler (ed.), The Iraq Crisis and the United Nations: Power Politics vs. the International Rule of LawMemoranda and declarations of the International Progress Organization (19902003) (2004), Studies in International Relations, XXVIII, Vienna, International Progress Organization, 55 8. 26 On the details of the use of the Security Council by the United States for the purpose of subverting the authority of the International Criminal Court, see Hans Kochler, Global Justice or Global Revenge? International Criminal Justice at the Crossroads (2003), Vienna/New York, Springer, 254ff. In 2004, because of the Abu Ghraib prison scandal and the resulting extremely unfavourable public opinion in the West, including the United States, the US administration did not insist on a further extension of that immunity. On another case of undermining the

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aspect of the Councils lack of capacity of independent action or, more precisely, the incapacity of all Council members but one. (b) At the same time, the organization cannot act in an efcient and consistent manner. Apart from and in addition to the above-described self-protection of the most powerful Member State(s), the Security Council is prevented from exercising its universal mandate of maintaining international peace and security because of the blockage of all sensitive decisions (in relation to permanent members) due to the veto rule of Article 27. This predicament has become even more serious in the present unipolar order than it has ever been during the era of bipolarity, characterized by the power struggle between the United States and the Soviet Union: the self-dened vital interests of the global hegemon are at stake nearly everywhere; it is a structural characteristic of global power relations that virtually every dispute or conict situation in every region of the globe has strategic implications for the one global power. It is again a structural fact of power politics that the vital interests of the global hegemon are selfdened and not subjected to the collective scrutiny of the Security Council. The unavoidable result of this constellation has been that the United States, albeit indirectly, has been in a position to determine the agenda of the Security Council all by itself. The twofold predicament described here has been evidenced most strikingly in the course of the Security Councils dealing with the Iraq crisis in the period 200203. Compared with the situation that prevailed during the earlier Gulf crisis (1990 91), the Council has been increasingly downgraded to the status of an institution acting post factum. While having been unable to lift the sanctions that were imposed on Iraq for more than a decade because of US and UK obstruction,27 the Council suddenly lifted those punitive measures28 after the United States had created new facts on the ground, i.e. had invaded and occupied Iraq, thus replacing the government of Iraq by an administrative structure completely under US control. The Council, not having been able to prevent and, later, condemn, let alone stop, the aggression against Iraq, simply acknowledged the fact of the occupation and actual control of the territory of Iraq by a United States-led coalition. In Resolution 1483 of 22 May 2003, the Council recognized the specic authorities and obligations of the United States and its allies as occupying powers under unied command, thus legitimizing, at least indirectly, the facts resulting from a war aggression that had been waged without authorization of the Council and for which, under universal jurisdiction, the responsible ofcials of the States involved would be liable to prosecution.29 C.G. Weeramantry, former
jurisdictional authority of the ICC, see Hans Kochler, Sudan: Double Standards in International Criminal Justice (2005), International Progress Organization, Vienna, 2 April (Global Policy Forum, New York (www.globalpolicy. org/intljustice/icc/crisis/2005/0402double.htm)). ` 27 On the legal aspects of the sanctions policy vis-a-vis Iraq, see Hans Kochler, The United Nations Sanctions Policy and International Law (1995), Penang (Malaysia), Just World Trust. 28 Resolution 1483 (2003) adopted on 22 May 2003. 29 See Memorandum by the President of the International Progress Organization on the Legal Implications of the 2003 War against and Subsequent Occupation of Iraq and Requirements for the Establishment of a Legitimate Constitutional System in Iraq, Including Measures of Criminal Justice (12 August 2003), reprinted in: Hans

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Judge at the International Court of Justice, has comprehensively documented the legal facts and analysed the implications of these developments for the international legal order and the world organization in particular.30 In Resolution 1546 (2004), adopted on 8 June 2004, the Security Council has gone one decisive step further by welcoming the supposed end of occupation on 30 June 2004 and the dissolution of the Coalition Provisional Authority (which were eventually advanced by a few days), and by endorsing the Interim Government of Iraq that had been established under the exclusive control of the occupying powers. By acting as a kind of notary public of the so-called transfer of sovereignty,31 the Security Council has served a useful role in providing multilateral cover for a situation which was brought about by the unilateral action of the United States.32 However, this rather strange shouldering of responsibility by the Security Council for the consequences of an action it had not authorized, has not changed the structural facts of power politics in the framework of the United Nations; it has made them even more visible. By providing a semblance of international legitimacy for the political structures created as a result of the invasion and occupation of Iraq, the Council has not regained its authority and legitimate role in conformity with Chapter VII of the Charter. To the contrary: by having given in to the self-interest of the most powerful Member State, the Councils members have brought about a further erosion of that bodys collective authority. This development is to be seen as further proof of the international rule of law being subverted by the law of force.

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VI. Power politics as predicament of the United Nations Organization: realism versus idealism
The international practices referred to above make it obvious that in the New World Order, which resembles very much the old order of imperial rule and colonial domination, the United Nations Organization is faced with the dilemma of: (a) either accepting, or interiorizing, its newly assigned role as a corollary of the hegemonial rule of its most powerful Member State, (b) or falling into a state of irrelevance similar to that which preceded the demise of the League of Nations in the course of the Second World War. The latter theme has been repeatedly invoked by President George W. Bush in connection with US efforts to obtain from the Security Council Resolutions authorizing the use of force

Kochler (ed.), The Iraq Crisis and the United Nations, 65 71. It is to be noted that, for the time being, the International Criminal Court cannot exercise jurisdiction over the crime of aggression. 30 C.G. Weeramantry, Armageddon or Brave New World? Reections on the Hostilities in Iraq, Second Edition (2005), Ratmalana, Sri Lanka, Sarvodaya Vishva Lekha. 31 In legal terms, this transfer has been a highly ctitious undertaking because sovereignty lies exclusively with the people of Iraq and cannot be granted or handed over by an outside power. 32 For details, see the authors lecture: The U.S. Handover of Sovereignty to Iraq: Moral and Legal Questions (2004), Peoples Forum on Peace for Life, Manila/Philippines, 18 June.

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against Iraq or legitimizing, post factum, the occupation of Iraq. His remarks at Whitehall Palace in London on 19 November 2003 included an ominous warning from the part of the only superpower to the decision makers particularly of the permanent Member States of the Security Council: . . . the credibility of the U.N. depends on a willingness to keep its word and to act when action is required. America and Great Britain have done, and will do, all in their power to prevent the United Nations from solemnly choosing its own irrelevance and inviting the fate of the League of Nations.33 Should the will of President Bush prevail, this would imply that the United Nations Organization will be put under the tutelage of the United States and the United Kingdom. Regrettably, the normative framework of the UN Chartera legacy of the power constellation at the end of the Second World War,34 does not enable the organization to deal with the US Presidents warning effectively so as to evade its predicament which we have described above in terms of the dialectic of power and law as a structural element of international organization. The inability of the United Nations to face this challenge has several aspects, four of which are restated here: . The Charter cannot be amended without the consent of the ve permanent members of the Security Council. . The veto provision of Article 27 will continue to prevent the Security Council from acting on all issues that touch upon the vital interests of a permanent member (unless in cases where those interests are identical for all permanent members, which is a highly hypothetical case). . Naturally, the veto rules facilitation of power politics comes to bear most dramatically in a unipolar constellation: the lone superpower does not need to worry about using its veto right while the other permanent members may have to consider eventual repercussions before they make use of their privilege. . The traces of supranational as distinct from international authority, which can be found in the UN Charter (in particular, in the rules establishing the enforcement powers of the Security Council), are becoming insignicant in a situation in which the actual power of one permanent member alone makes the provisions of compulsory measures under Chapter VII virtually inapplicable (as was the case with the invasion of Iraq by the United States in 2003 or the US-led war against Yugoslavia in 1999) or renders those measures ineffective if that power, though not having vetoed the respective resolution, decides not to co-operate in its implementation.

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33 President Bush Discusses Iraq Policy at Whitehall Palace in London. Remarks by the President at Whitehall Palace, Royal Banqueting House Whitehall Palace, London, England. The White House, Ofce of the Press Secretary, 19 November 2003. 34 See Hans Kochler, The United Nations and International Democracy (1997), above n.2, and William Dan Perdue, The Real United Nations: The Legacy of Bretton Woods, in: Hans Kochler (ed.), The United Nations and International Democracy (1995), Vienna, Jamahir Society for Culture and Philosophy, 113 24.

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This leaves the United Nations trapped between a rock and a hard place when it comes to crucial matters of international peace and security such as the ongoing crisis situations in Iraq, Afghanistan and Palestine. On the one hand, the law cannot be enforced against the will of the most powerful Member State (that, because of its military might, is also the one most capable to violate the law, e.g. to commit acts of aggression); on the other, the actual enforcementin case a Resolution has not been objected to by the United Statesdepends on the goodwill and, in important cases, the military capacity of that very State. Instead of being restored to its legitimate role (as was expected by many after the end of the Cold War) and in spite of all the talk about the common resolve of what is nowadays euphemistically called the international community, the United Nations Organization risks being phased out gradually in favour of ad hoc coalitions of the willing. Those groupings may be informal to a certain extentas distinct from the formal structures of collective action in the framework of the United Nationsand may uctuate according to the specic circumstances of each conict situation and depending upon the constellation of interests among the participating countries; but, under the conditions of the present unipolar world order, these coalitions will always be created around the global hegemon. They will be shaped according to the latters national interests. This will also be the case if they include ad hoc arrangements in the framework of regional organizations such as NATO. The central role of the global hegemon in the respective regional organization is never challenged. In this regard, the comparison to the fate of the League of Nations is not far-fetched, although, due to the absence of the United States, this organizationunlike the United Nationswas never truly universal. As a result of Member States having circumvented the organization in the pursuit of their national interests, the Leagues already limited inuence was gradually diminished; it lost important members and fell into irrelevance in the course of the events that led to the Second World War. In view of the developments described here, we must admit that the idealist vision of an international (i.e. inter-State) system where the rule of law is guaranteed through collective action among equals (in the sense of States enjoying sovereign equality)35 and where even the most powerful State is subjected to the force of the law, has proven inapplicable.36 The very essence of the international rule of law appears having been lost in the power-centered world order of today.37 The idealist vision is being replaced by the realist doctrine, according to which the nationState and its vital interests have supremacy over considerations of international legality.38 According to that conception, law is an instrument of power; the latter effectively subdues the former and not vice-versa.
35 The underlying notion is that of equality in the normative, not the factual sense. 36 On the philosophical aspects of this idealistic vision of international relations, see Hans Kochler, Democracy and the International Rule of Law: Propositions for an Alternative World Order (1995), Vienna/New York, Springer. 37 On the devastating implications for the international rule of law, see also C.G. Weeramantry, op. cit. 38 The relevance of this doctrine for the United States has been expounded by Hans Morgenthau much earlier. See his In Defense of the National Interest: A Critical Examination of American Foreign Policy (1951), New York, Knopf.

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If we take a closer look at the procedural details laid out in the UN Charter in their entirety, we will realize that the postulates of the realist doctrine have prevailed since the very beginning of the world organization. The traces of supranational authority in the form of the enforcement mechanisms of Chapter VII of the Charter (with the associated great power privileges) have been mistakenly attributed to a collective effort at laying the foundations for the international rule of law; those elements of supranational authority are in themselves a reection of the compromise with power politics that stood at the cradle of the organization. The developments in the context of the New World Order have made the iron law of power politics, which has shaped the UN Charter in 1945, more visible and have aggravated its consequences.39 The truth of the matter is that in relations between States the law ` needing power ( force) to be effective and, thus, valid40cannot be enforced vis-a-vis the most powerful state(s). Unlike at the international level, this predicament does not exist at the domestic level except in a dictatorial system. The writing of the veto power into the UN Charter has constituted the rst and decisive compromise with international power politics41 from which the world organization has never recovered and to which it has fallen victim in an even more serious manner under the conditions of a unipolar world order where no other permanent member, in spite of the procedural privilege accorded by the veto rule, is in a position to seriously challenge the predominant position of the global hegemon. A further proof of the predominance of power politics lies in the historical truth, referred to earlier in this paper, that the world organization would never have come into existence if the veto privilege of the ve permanent members would not have been written into the Charter. In spite of the professed commitment to international partnership according to the principle of sovereign equality, the national interests of the sponsoring governments have been the decisive factor in the process of drafting the UN Charter.

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VII. Future prospects of the United Nations and the need for a new paradigm of international organization
What is needed in view of the realities of power politics in the global context is an alternative vision that is oriented towards the premises of the idealist doctrine or, more realistically, a combination of idealist and realist principles.42 The United Nations, as universal intergovernmental organization, can properly function only in a multipolar order where several

39 For a general analysis of power politics in the framework of the realist doctrine of international relations, see Hans J. Morgenthau, Politics among Nations: The Struggle for Power and Peace, 3rd edition (1960), New York, Knopf. 40 See Hans Kelsens theory of the validity of legal norms: Pure Theory of Law (2000), Union, NJ, Lawbook Exchange. 41 For details, see the authors analysis: The Voting Procedure in the United Nations Security Council, above n.6. 42 For an outline of the general framework of such an alternative order, see the authors monograph: Democracy and the International Rule of Law: Propositions for an Alternative World Order.

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major players hold each other in check, i.e. where a balance of power exists. Ex denitione, this is not possible in an exclusively unipolar context. In the framework of a genuine multipolar order (should such an order reappear in the foreseeable future), the veto rule of the Charter (granting a special voting privilege to only ve countries) should be abrogated and replaced by a special voting requirement ( for instance, a kind of supermajority of three-quarters of the total votes) in all matters dealt with under Chapter VII. Such a requirement might be combined with a carefully drafted formula for weighted voting.43 The status of permanent membership in the Security Council, if retained, should be redened in a regional sense to ensure a better distribution of power on the global levela measure which will eventually, because of greater fairness, make the balance of power more stable. This could be achieved through assigning permanent seats to regional organizations where they exist, such as the European Union, the African Union, the Association of South-East Asian Nations, etc.44 If a balanced regionalization of permanent membership should be implemented, one might even consider retaining the veto rule by redening it in the sense of the requirement of consent of a region, not of a particular country. The veto on a regional basis might make this special privilege more acceptable than if accorded to individual States.45 It is to be noted that the reform proposals recently advanced within the UN system do not address the basic issue of the veto. The report of the High-level Panel on Threats, Challenges, and Change, appointed by the Secretary-General of the United Nations, proposes a more balanced geographical representation in the Council, but does not touch upon the veto privilege of the ve permanent members. Model (A) of the Panels proposal for Security Council reform provides for six new permanent seats, with no veto being created, and three new two-year non-permanent seats. Model (B) provides for no new permanent seats, but suggests a new category of eight four-year (renewable-term) seats and one new two-year non-permanent (and non-renewable) seat. Both versions suggest the division of the seats according to a specic formula among the regions of Africa, Asia and Pacic, Europe and the Americas.46 The Secretary-General endorsed these

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43 On the specic aspects of a weighted voting formula for the United Nations, see H. Newcombe, J. Wert and A. Newcombe, Comparison of Weighted Voting Formulas for the United Nations (1970), Preprint, Dundas (Ontario), Peace Research Institute. 44 This would, of course, imply the abrogation of permanent membership status for individual States such as France or the United Kingdom. 45 These reform proposals have been worked out in more detail by the author in: A New World Order of Transnational Democracy versus the Old World Order of Superpower Rule, in: The United Nations and International Democracy: The Quest for UN Reform (1997), Studies in International Relations, XXII, Vienna, International Progress Organization, 29ff. Some of the proposals were initially presented at the Second International Conference On A More Democratic United Nations (CAMDUN-2) in September 1991 in Vienna. See Concluding Statement of the Second International Conference On A More Democratic United Nations, in: Hans Kochler (ed.), The United Nations and the New World Order: Keynote addresses from the Second International Conference On A More Democratic United Nations (1992), Studies in International Relations, XVIII, Vienna, International Progress Organization, 49ff. 46 A More Secure World: Our Shared Responsibility, Report of the High-level Panel on Threats, Challenges and Change (2004), United Nations, General Assembly, Doc.A/59/565, 29 November, paras 252 and 253.

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proposals in his report to the General Assembly.47 The Resolution of the World Summit on the occasion of the 60th anniversary of the United Nations is rather vague and noncommittal. In Par. 153 of the Resolution, the Member States merely express support to early reform of the Security Council . . . in order to make it more broadly representative, efcient and transparent.48 The lack of any new paradigm in these reform proposals produced within the United Nations is not surprising because all steps of statutory reform aimed at democratizing the United Nations Organization and introducing an element of balance, i.e. fairness, into international relations require the consent of the existing permanent members (Article 108 of the Charter). This confronts us with the often ignored reality that the national interests of a small number of Member Statestwo of which are no great powers any more may make the world organization incapable of reforming itself. In the present unipolar constellation, this basically means an overwhelming dependency upon one permanent member in all matters that relate to Charter amendment (not to speak of the fulllment of the organizations mandate under the existing Charter). In a situation in which no balance of power exists among the ve permanent members, the inuence of the only superpower that, unlike the other permanent members, may make use of the veto privilege without fear of political repercussions is overbearing and absorbs the power struggles among the lesser members. In view of these realities (statutory as well as political), reform of the United Nations Organization, even on minor procedural issues, is virtually impossible. Thus, the only alternative to the existing state of paralysis that has brought about the marginalization of the United Nations and a high degree of delegitimization of the international order in general, may be, in the long term, the creation of a new entity by virtue of an intergovernmental treaty. Such an initiative aimed at establishing a new framework of international organization does not necessarily mean reinventing the wheel as regards the interdependent relationship between power and law, but will imply the drafting of a statute for relations between sovereign states that avoids the inconsistencies and normative contradictions which have hampered the efciency of the present world organization and negatively affected its credibility as guarantor of the international rule of law. A new statutory framework for a universal international organization will have to be based on an elaborate separation of powers between the legislative, executive and judicial functions of that multilateral entitysomething which is almost totally absent in the United Nations Organization. Measures aimed at guaranteeing an international separation of powers would require, inter alia, that an international court of justice plays the role of a genuine constitutional court (i.e. that its jurisdiction does not

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47 In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General (2005), United Nations, General Assembly, Fifty-ninth session, agenda items 45 and 55, Doc.A/59/2005, 21 March, para.170. 48 2005 World Summit Outcome: Resolution adopted by the General Assembly, sixtieth session, agenda items 46 and 120, A/RES/60/1, 24 October 2005.

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depend on the consent of individual States) and that the International Criminal Court be adequately integrated into such a new entity.49 Such a restructuring of the international system will remain an idealistic vision as long as relations between States, including the system of collective security, are based on the notion of special privileges to be accorded to the great powers of the middle of the 20th century. A system that eternalizes the power balance of 1945 is incapable of reforming itself. In the present constellation, it only favours the most powerful international actor. A more realistic alternative, as regards the restructuring of the international system, can be derived from the expectation of the gradual emergence of new regional players in Europe (such as Germany), Asia (such as India), Latin-America (such as Brazil), and eventually Africa;50 from the strengthening of the position of actual permanent members of the Security Council such as Russia and China; and eventually from the assertion of the role of regional groupings such as the European Union or ASEANor the emergence of new groupings in other regionsas genuine international actors.51 Under the present circumstances, however, cohesive international action by regional groupings is only a remote possibility even in the case of the European Union,52 not to mention the more fragile structures of the African Union53 or the Arab League, which will rst have to prove that they can counterbalance the former colonial powers strategy of divide et impera. A development towards regionalization, and the global multipolarity related to it, might provide, at least in the long term, some breathing room for the United Nations Organizationeventually making obsolete the alternative scenario of the creation of a new entityand could help Member States to regain their freedom of action, which they do not possess under the present conditions of unipolarity. Irrespective of whether this transformation of the international system towards genuine multipolarity will occur or not, the contradiction, or antagonism, between power and law will exist as long as international relations are determined by States as sovereign actors who know no common superior.54 Unless the nation-States are integrated into an
49 The present arrangements between the United Nations and the International Criminal Court, in particular as regards the Security Councils referral and deferral rights (Arts 13 and 16 of the Rome Statute, respectively), are not to be considered as satisfactory in terms of an international separation of powers. Although the United Nations and the International Criminal Court are distinct entities, legally independent of each other, the wording of Art.16 effectively subordinates, in cases chosen by the Council, the jurisdiction of the International Criminal Court to the supreme executive organ of the United Nations. On the indispensable nature of the separation of powers for the international rule of law, see the authors analysis: The Requirement of an International Separation of Powers, in: Global Justice or Global Revenge?, 20ff. 50 South Africa and Nigeria have been mentioned in that regard. 51 On this aspect of international relations, see Simon Dalby (ed.), The Impact of Regional Groupings on International Relations (2004), Vienna, Jamahir Society for Culture and Philosophy. 52 On the related legal issues, see Hans Kochler, The European Constitution and the Imperatives of Transnational Democracy, in: Singapore Yearbook of International Law, Vol.IX (2005), 87 101. 53 On the problems of African unity, see Kamba Dieudonne Mfutila and Hans Kochler (eds), Demain lAfrique: Actes du symposium international sur lunite africaine (2002), Vienna, Jamahir Society for Culture and Philosophy. 54 This is the description of state sovereignty as originally introduced in line with the medieval understanding of that notion by Bartolus de Saxoferrato (1314 57): States are understood as universitates quae superiorem non recognoscunt (communities that do not recognize a superior). This understanding was expressed in the medieval

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essentially transnational system of collective security, based on enforceable norms, global anarchy, not order, will result from the interplay of forces among these entities. More than two centuries ago, Immanuel Kant had emphasized the need for such an approach in his treatise on perpetual peace.55 If sovereignty is understood in a mutually exclusive sense, whereby each States sovereignty negates that of the other,56 the antagonism between power and law cannot be resolved. In a framework where sovereignty is dened as something absolute, putting each State legally apart from all the others (thereby excluding, sensu stricto, the notion of obligations erga omnes), the synthesis between the antithetical principles of power and law will become impossible. The essence of bonum commune in its transnational meaningwhich is indispensable for global peacewill be lost. Not surprisingly, in the present situation, which is characterized by the absence of a balance of power, the dominant States policies have led to the reafrmation of this traditional interpretation of sovereignty. The author is well aware that the reshaping of the international system according to the principles of sovereign equality and transnational democracy in a genuine multipolar framework will remain, for the foreseeable future, an idea in the Kantian sense, namely a guideline towards which the reshaping of the international system, in particular the United Nations Organization, should be oriented if global anarchy is to be avoided.

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denition of the ruler: . . . rex est imperator in regno suo, qui in temporalibus superiorem non recognoscit (The king is the ruler in his realm who in worldly matters does not recognize a superior). 55 Reason can provide related nations with no other means for emerging from the state of lawlessness, which consists solely of war, than that they give up their savage (lawless) freedom, just as individual persons do, and, by accommodating themselves to the constraints of common law, establish a nation of peoples (civitas gentium), that (continuingly growing) will nally include all the people of the earth, To Perpetual Peace (Zum ewigen Frieden) (1795), Section II, Second Denitive Article for a Perpetual Peace: The right of nations shall be based on a federation of free states. Quoted according to the translation by Ted Humphrey: Immanuel Kant, To Perpetual Peace: A Philosophical Sketch (2003), Indianapolis/Cambridge, Hackett Publishing Company, Inc., 14 15. 56 See Jean Bodins denition of sovereignty in De republica libri sex, I, 8 (1586), where sovereignty is dened as in cives ac subditos legibusque soluta potestas, i.e. as summa potestas. On the implications of the interpretation of state sovereignty for the theory of international law in general, see Hans Kelsen, Das Problem der Souveranitat und die Theorie des Volkerrechts (1960), Aalen, Scientia (reprint of the second edition, 1928).