Resolution 377: How the UN could use it to save Ukraine
[Note: The following is an extract from the last chapter of my book SPEECH! How Language Made Us Human, originally written with the terrible events of the Syrian Civil War in mind (another truly international crisis). However, it applies equally to what is happening now in Ukraine. Executive summary: The UN has the power, the means and the responsibility to stop the war in Ukraine. To do so would be an act of peace, not war.]
The UN was set up with the best of intentions. In the immediate aftermath of World War II, the victors of the struggle felt the need to do something to prevent another world war from ever happening. The UN Charter, the founding document of the United Nations, was created for that sole purpose, and 193 countries of the world are now signatories to a legal agreement, in which they pledge to “maintain international peace and security, and to that end: to take 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.” That’s pretty clear. The primary mandate of the UN, which we have all signed off on, is to “bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”
And yet, since that document was signed, there have been over 200 major wars and conflicts in which over 20 million people have died, some 90% of whom have been civilians. Global military expenditure is now nearing an eye-watering $2 trillion per year, an amount equivalent to the combined GDP of over 60% of the world’s poorest countries. Just think about that for a moment. The amount of money spent on making weapons of war exceeds the total income of more than half of the poorest people on the planet – not that ordinary citizens get a great deal out of it, with nearly half of all federal tax revenues in the US, for example, going towards current or past military costs. It’s hard to see what part of the UN’s mission to bring about the settlement of international disputes by peaceful means is served by this reality.
Given the UN’s founding commitment to maintain peace, why has this been allowed to happen? Though the reasons behind it may be complex, the grubby answer at the heart of the rhetoric is quite simple: because there is a veto. In theory, the UN is a democratic organisation where resolutions about how to deal with world affairs are proposed, debated and decided by democratic vote – except that any of the five so-called ‘permanent members’ of the Security Council have the right to veto any resolution, even one passed unanimously by all the other members.
Since 1945, this power of veto has been exercised more than 250 times. Let’s remind ourselves what a veto is. It comes from a Latin word meaning “I forbid” and grants its user the right to prevent any proposed change to the status quo, without having to give a reason. This is essentially the same power that an absolute monarch or a despot uses to exercise control over their country – and we know how harshly history has tended to deal with such people. How could the UN, the finest flowering of humanity’s desire to live at peace with itself, have fallen foul of such an elementary error?
To understand that, a little history is required. The League of Nations was the first attempt to establish an international organisation that could maintain world peace. It was set up in 1920 just after the First World War – a conflict which had resulted in utterly devastating losses, including some 38 million civilian and military casualties worldwide. At the outset the League consisted of 44 states in a General Assembly, of which eight (four ‘permanent’ members and four ‘non-permanent’) made up the League Council – a smaller group comprising the ‘great powers’ with a similar function to the UN Security Council today. Though it eventually expanded to as many as 58 states and 15 Council members, the League of Nations was never a fully inclusive organisation – and the veto situation was even worse than in the United Nations: a unanimous vote of all members was required for any measure to pass.
This set an almost impossible bar to effective decision-making, and the League of Nations eventually dissolved in a puddle of inaction that allowed member states to flout resolutions with impunity – a situation that ultimately lead to World War II. The post-war establishment of the United Nations was intended to fix the flaws of its predecessor, but though its founders saw the need to reform the unanimous vote requirement, they could not bring themselves to go all the way and make the decision-making process fully democratic. So resolutions passed by majority vote in the General Assembly are only ‘advisory’ and are not considered binding on any of the members.
Any ‘substantive’ decisions with enforceable consequences in the real world still have to be taken by the Security Council, which comprises just 15 of the 193 UN member countries. 10 of these council members are elected by the General Assembly on a rolling 2-year basis, which does at least allow other countries to take a turn at the wheel, but although the principle of majority voting is accepted (a resolution passes if nine of the fifteen members vote for it) there is a sneaky catch: the five permanent members – the victorious allies of World War II – must all concur, i.e. not oppose the vote. That means that if any one of them votes against it, the deal’s off.
This ability to block a positive vote is not actually called a veto (it’s considered a ‘failure to concur’), but in practice a veto is what it is. And that was the price of entry to the club: at the initial conference in San Francisco in 1945 the US delegate dramatically tore up a draft copy of the Charter as a reminder to other countries that they must agree to the veto or have no Charter at all. But times have changed. Though the ‘great powers’ still have interests and client states they wish to protect, the idea that a small group of powerful nations could unilaterally prevent the resolution of substantive issues affecting world peace increasingly goes against the grain of the times – all the more so given the conflict of interest arising from the fact that the five permanent members of the Security Council are among the top ten weapons-exporting countries, together responsible for over two-thirds of reported global conventional arms exports. Once again, it’s hard to see how this veto power can be made to square with the terms of the UN’s core mission – let alone with Article 2.1 of the UN Charter, which states that “the Organization is based on the principle of the sovereign equality of all its Members.”
On the 800th anniversary of Magna Carta in 2015, much was made of its significance as the first formal legal restraint on the absolute power of kings, thus acting as a beacon for the establishment of human rights more broadly. And indeed, for eight centuries the Magna Carta has been the foundation for a progressive series of provisions that have effectively abolished political tyranny in the West – striking a fatal blow not just against English sovereigns acting from a sense of Divine Right, but against the legitimacy of undemocratic state power anywhere. Such milestones as the Petition of Right, the Bill of Rights and the Act of Settlement paved the way for the Declaration of Independence and all that followed from it, from the French Revolution to the Russian Revolution.
Though this might seem a very European tradition, it is a mistake to see this as part of an exclusively Western culture that is of little relevance to the rest of the world. The establishment of laws to limit the power of kings and emperors, though not perhaps as explicitly developed as in Europe and America, is a theme that runs through history – whether in Babylon, Ancient Greece or Confucian China. This is the sense in which the pen is mightier than the sword – because to animals who have discovered language, logic is ultimately more important than strength. Indeed, that is arguably what language is essentially for, to persuade others that there is a better way to do something than what they were otherwise going to do. That is the essence of civilization, wherever and whenever it is found.
It just so happens that this particular process has been taken furthest in the West. That does not endow the West with any moral or cultural superiority: it’s just that for a number of technical and practical reasons, the West has been in a position to work things through further than in other countries. We have had the meetings. We have done the math. In the so-called ‘developed’ nations, the freedoms that have been won by minorities and other disadvantaged groups, be they religious, sexual or social, are undeniable and now irreversible. The fight against slavery and racial and religious discrimination, and for equal rights for women, LGBT and disabled people are hard-fought struggles that were ultimately won by the force of logic and persuasion.
Like the wheel, democracy is an idea that cannot be ignored without taking a giant step backwards. Just as almost every machine depends on the concept of a wheel in some form – a simple engineering solution that took our ancestors nearly as long to invent as writing – so the successes of our modern societies depend upon freedom of speech and democratic process. And although not all societies developed the wheel at the same time, the obvious advantages it conferred meant that it was universally adopted wherever it was introduced. And the logic of this process tells us that democracy must now take its seat at the UN Security Council.
In fact, there’s not much more that needs to be done. There’s a mechanism already in place: the veto can be overcome. Though it’s generally only known to international lawyers (and even they often need reminding) the United Nations has a provision on its books that allows a Security Council veto to be circumvented. It dates back over 65 years, but on November 3, 1950, after fourteen days of deliberations, the United Nations General Assembly finally voted through Resolution 377A(V) – an agreement which became known as the ‘Uniting for Peace’ resolution. The purpose of this resolution, passed by an overwhelming majority vote of 52 to 5 – with two abstentions – was to ensure that a deadlock in the Security Council could be resolved by a vote in the General Assembly should the circumstances warrant it.
The resolution was carefully designed to address the Security Council’s fatal flaw. The relevant clause states that where there is disagreement between the permanent members, meaning that the Security Council is unable to approve action to prevent war – or, as the resolution puts it, “fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression” – then the decision may pass to the General Assembly, which is thereby empowered to recommend collective measures, “including… the use of armed force when necessary, to maintain or restore international peace and security.”
Though lawyers may argue about the nuances, what that essentially means is that a veto exercised by any of the permanent members of the Security Council can be bypassed if necessary by the General Assembly. Let me restate that, because it is not well-enough known or understood. If a Security Council resolution is blocked by the veto of a permanent member, then – according to international law – it can be referred to the General Assembly for a democratic decision. All that’s required is that a majority of the member states request an emergency session to debate the matter, with a two-thirds majority being needed to pass the resolution. Resolution 377A(V) is still valid and has previously been used to dramatic effect, most notably during the Suez Crisis.
We need to dust it down again.
[Postscript: It is significant that for the first time in nearly 30 years the UN actually did invoke Resolution 377 on February 27, shortly after the Russian invasion (following a Russian veto at the Security Council) and convened a Special Emergency Session of the General Assembly – only the 11th in its history – which adopted a resolution with a 73% majority deploring the Russian invasion and "demanding the immediate, complete and unconditional withdrawal of all Russian military forces from the territory of Ukraine".
However, unlike during the Suez Crisis, the UNGA stopped short of recommending the formation of a UN Emergency Force tasked with compelling the Russian army to leave – or even just of imposing a no-fly zone, the quickest and easiest way of changing the balance of force on the ground. However, they certainly have it in their power to do that – and a no-fly zone imposed in the name of the UN, not NATO (even if in practice it might be NATO forces that carried it out) would be a completely different matter. Given that the Russian invasion is a clear breach of at least three international treaties (see my previous blog entry Ukraine: Time to stand up and be counted...), it's hard to see why they – our representatives, after all – are not prepared to act. This is not just an issue for NATO, or 'The West' to consider. It is an issue first and foremost for Ukraine, and if we're afraid of taking action against Russia because of the 'risks' involved, we have to ask ourselves what we are defending, and when we might otherwise be prepared to so so.
Above all, we should remember the words Benjamin Franklin is said to have used to encourage those who were wavering over signing the US Declaration of Independence in 1776, "We must all hang together, or, most assuredly, we shall all hang separately." Because if we don't come together to save Ukraine, what is the point of the United Nations, anyway?]
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