THE UN : BETWEEN LEGITIMACY AND EFFICIENCY

Question 1

History of the UN

Answer 1

• the Cold War : within the 5 permanent members, 3 were coming from the west bloc and 2 from the est = blockages so the UNGA took the lead by :
• opening up the UN to all sovereign states
• turn the self determination principle to a right of indépendance for colonial people (RES 1514) even though the UNSC was paralysed.
• Disunited universality : after the Cold War, new independent states whose politic is more focused on economic development = «new economic international order» (RES 1974). It lead to an abolition within the UN :
  
  • geographic expansion : universal expansion of the UNSC, its actions are expanded to almost all regions of the world.
  • broader definition of peace and security : expended to include domestic situations.
  • new means for the UNSC : establishment of international tribunals ; sanctions against member states (embargo..) and targeting sanctions = against a particular individual. This power has been abused after 9/11 = question on the legitimacy of the UNSC.

Today : critics about the useless of the UNSC and the overuse of its powers, especially under chapter VII (ex : during the operation in Lybie that lead to the death of Khadafi).

Question 2

The UN dilemma : legitimacy and efficiency

Answer 2

Efficiency : the power to have an influence on situations where peace/security are threatened

Legitimacy : the UN must truly be representative of the states.

-> those exist but are SPLIT within the UN to have an efficient system :

• UNGA (art 10 UNCH) : it is =universal in its composition and in its functions = a body that as intestate legitimacy. But limits : no binding power/only soft law + discussions cannot involve each/security issues.
• UNSC (art 27 UNCH) : small organ worth binding power BUT only if there is an affirmative vote of 9 members AND an affirmative vote of the 5 permanent members within those 9. BUT in practice, it works with a negative vote = VETO. Abstentions are not considered as such.

Question 3

Other organs and the «UN family»

Answer 3

There are different main organs within the UN. Art 7.1 : UNGA ; UNSC, UNGS, ICJ.

• ICJ : the Court is a principle organ of the UN, not only a judicial organ but an organ with its own powers also in the maintenance of peace/security. Justice provided by the ICJ is a device/tool for peace/security. In some judgments of the Court, once it has taken its decision, the ICJ plays its role as a UN organ. ICJ, Ukrain v. Russia : Legally speaking, the Court has not followed Ukrain argument but accepted the Russia argument = defeat for
  Ukrain.
• the UNSG (art 97) : may be a very influential figure (Kofi Anan…). It may play an important rule of influence within the UN system.
• The UN is no alone, it’s part of a broader UN system. Ex : the world food program : independent personality but this is the UN on the ground.Very important programs on the ground ; UNEF ; UNICEF… Beyond them, there are international organisations properly speaking having legal personality : OMS, WTFO, world Bank, UNESCO -> independent from the UN but they contribute to the goal of maintaining peace and security.

Question 4

Reforming the UN ?

Answer 4

• reasons
• potential reforms

Question 5

Reforming the UN : reasons

Answer 5

The balance between legitimacy and efficiency arises two issues today :
- the legitimate organ (UNGA) is almost powerless : empty legitimate power.
- the efficient organ (UNSC) has become illegitimate : does not represent the UN anymore (1 for Asian countries for instance and 0 for Africa) = very low representativeness rate (8%).
- paralysis of the UNSC : veto overused whenever there is a sensitive subject (ex : Gaza situation -> states turn to non public entities and thus not transparent enough (G7, G20..). Sort of return to the clubs of states in the early XIXè.

Question 6

Reforming the UN : potential reforms

Answer 6

Art 108 and 109 of UNCH provide the possibility to amend the Charter but with an agreement of at least 2/3 of the member states + it must be accepted at the domestic level = almost impossible to achieve. This is why some proposals have developed :

• UNSC : proposal regarding the commitment of the permanent members not to use their veto when there is a risk of international crime. But not accepted by all of them (China, Russia, US).
• UNGA : two elements :
  
  • practical : art 10 UNCH prevent the UNGA from discuss peace/security maters. To override the paralysis of the SC, the GA created its own procedure base on «uniting for peace», RES 1950 = if the council fails to exercice its primary responsability, the assembly shall consider the matter immediately and make appropriate recommandations including the use of arm force. = idea that the UNSC has the PRIMARY responsability in the maintenance of peace/security but not the sole responsibility.
• structural : UNGA RES 76/162 : provides a sort of accountability before the UNGA for the permanent members = whenever a veto is casted, the president of the GA convient a meeting to debate on the situation. The state must justify its use of the veto.