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Disunited nations - The Times of India

Anil Nauriya ()
June 15, 1998

Title: Disunited nations
Author: Anil Nauriya
Publication: The Times of India
Date: June 15, 1998

When the foreign ministers of the Security Council's permanent
members met separately in Geneva in June, the flags of the five
countries were flanked on two sides by the flags of the United
Nations, suggesting that the meeting was being held under the
auspices of, or was representative the UN. Nothing in the
existing UN charter enables the P-5 to act as though they
represented the UN. The five countries do have preventive voting
powers in the Council, but they are not collectively recognised
as a legal entity within the UN. If they choose to meet
separately they do so in their individual capacity and not as
representatives of the UN.

The Security Council resolution following the Geneva meet seeks
to enforce the norms of the Comprehensive Test Ban Treaty (CTBT)
upon countries which are not signatories to it. It seeks to do
this at a time when some permanent members like the US are yet to
ratify the treaty. Its claim to assume this jurisdiction is
further weakened by the fact that the Partial Test Ban Treaty,
the only treaty on the subject to which India is an adherent, did
allow underground testing.

>From the responses of the US state department to the Indian
nuclear test, it is clear that the US seeks to derive its nuclear
legitimacy from the Non-Prolifiration Treaty (NPT) which marks
1968 as the cut-off point for recognition as a nuclear weapon
state. Yet the NPT can bind only those who are signatories to it.

Self-interest

The latest Security Council resolution seeks both to preserve the
capacity of the P-5 to launch missiles against other countries
and freeze the development of missiles which could, inter alia,
threaten them. It appears that the P-5 while appearing to act in
the name of preserving peace are not unmindful of their own self-
interests and of the need to preserve safe havens for themselves
>from which they can from time to time threaten other nations in
order to bring them into line? The line between law and politics,
always somewhat blurred, is thus sought to be obliterated. That
is why it would strengthen the peace movement on the Indian
subcontinent if its approach is broadened to protest against all
nuclearisation globally.

The Security Council overlooks also the question of clandestine
transfers of tested nuclear weapons or delivery systems or of
critical components, all transfers in which the P-5 seem
themselves to have been quietly or obliquely engaged.

The conduct of some of the permanent members has contributed to
the present situation in South Asia. This needs to be discussed.
But the UN Security Council is not structured to enable a
meaningful discussion to take place on this subject. The UN needs
another higher Council, to be chosen in accordance with the
preamble of the UN Charter, which speaks of the "equal rights of
men and women and of nations large and small". Such a Council
should consist of two chambers - one, whose membership reflects
the demographic composition of the world and another, in which
nations, large and small participate on the basis of equality.
The reference in the UN preamble implies the existence of an
inherent power in the General Assembly to establish such a
Council.

Credible Forum

In any case, the UN will, if it is not to go the way of the
League of Nations, need to devise constitutional structures to
discuss and review the actions of the P-5. This is necessary
particularly to ensure that these countries do not become the
sole judges of situations in which their own conduct is part of
the threat to peace. It is necessary also to remove the legal
cover over the raw power which is brought to bear on an
examination of these matters. Such a higher Council could serve
as a credible forum of international conscience if, drawing its
validity from the preamble to the UN Charter, it could assert
such a power of review. That the actions of these countries
should be virtually unreviewable is the Achilles' Heel of the UN
structure. This was evident in the manner in which the US and its
allies privatised the Iraq war and did not submit to any system
of UN accountability for its actions.

The effort by the P-5 to retain their supremacy over the globe is
reflected also in the proposal to establish an International
Criminal Court (ICC). This would be more than a standing war
crimes tribunal, for the ambit of crimes under its jurisdiction
would be much wider. As in the case of all war crimes tribunals
so far, this proposal too will reflect the existing international
power structures.

The western idea is to have a system in which, if the proposed
ICC is of the view that some persons should be tried who have not
been tried by a national court, the proposed ICC could proceed to
try them. The draft convention provides that even if a national
court had tried and acquitted such persons, the ICC could proceed
with a trial on the ground that the national judicial system was
ineffective. The P-5 have sought also to protect themselves and
their leaders from being arraigned before the ICC. The draft to
be discussed at a final conference this month provides that the
ICC not proceed with a trial if it receives a request from the
Security Council to that effect.

A criminal jurisdiction presumes the sanction of force. This
force will obviously be based on the existing international power
configurations. It means, for example, that a Saddam Hussain
could be tried, but not a George Bush. The same mindset leads to
demands for an apology for Japanese actions in World War II from
the visiting Japanese emperor in London, without a matching word
of regret about the nuclear holocaust unleashed on Japan in 1945.

The UN system has shown itself skewed even in its existing system
of justice which deals with the actions of sovereign nations.
]bus on the question of legality of nuclear weapons, the
International Court of Justice was unwilling to take a clear
position against the interests of the P-5.

Skewed System

This skewed nature of the UN could prove its fatal weakness. it
needs to be recognised that the actions of the P-5 and their
allies, whether acting together or sometimes under the umbrella
of the UN, have also claimed lives across the globe in Japan,
Vietnam, Iraq, Somalia, the former Yugoslavia, Malvinas (the
Falklands) and elsewhere. This has happened even in so-called
peace-keeping operations.

If the UN system cannot provide a credible mechanism for ensuring
the accountability of the permanent members particularly as
regards situations to which they have contributed, it is headed
for collapse.

(The author practises law in the Supreme Court)


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