Chronicle EditorSharon Hofisi Legal Letters
The United Nations Security Council is a key institution in the maintenance of peace and security in the world. From an international legal, justice perspective, the reform of the UNSC has been long overdue.
International legal justice deals with the enforcement of international law. The UNSC is an important institution which has referred some country situation to the International Criminal Court (ICC). The ICC docket is dominated by African situations and it is important to analyse their proposed reform of the UNSC.
From an African perspective, the need for UNSC reform is captured in the “Ezulwini Consensus” of 2005. The Consensus was a Common African Position on the proposed reform of the United Nations. It dealt with various issues affecting African countries. More than 10 years, nothing has happened. The Consensus has largely been mere political rhetoric, a white elephant so to speak.
Who will revive the spirit of that Consensus? Twelve solid years! Nothing has been done. How many meetings of the United Nations were conducted since then? Is it wrong to assert that, though noble in its call, it is highly unlikely that the Consensus will see the light of the day?
A quick look at the Consensus will show the following aspects. The African Union envisages three aspects for reform. These are collective security and prevention; collective security and the use of force; and institutional reform.
These three aspects will be referred to as ‘pillars’ in this article. Various aspects are included as constituent elements of the three pillars. The first key pillar relates to collective security and the challenge of preventing certain problems such as infectious diseases like HIV and AIDS), poverty, and environmental degradation.
The second pillar relates to the use of force. From an international legal justice perspective, this pillar is important since it deals with issues such as the responsibility to protect. African States agreed in principle to recognising the normative principle of international law.
Further, they also agreed to actively involve regional organisations in the maintenance of peace and security in Africa. The basis for this stems from the fact that the UNSC and the United Nations General Assembly are often far from the scenes of conflict.
Africa has been home to incessant conflicts: coups and civil wars included. The Responsibility to Protect (RtoP/R2P has also been invoked in Libya during the 2011 civil war. The R2P doctrine was contentiously invoked since the ‘No Fly Zone’.
Although the Ezulwini Consensus dealt with the legality of the use of force when it referred to Article 51 of the United Nations Charter on legitimate self-defence, there is concern whether the spirit of the Consensus was respected in the Libyan crisis. This is because the African Union accepted that the intervention of regional organisations such as the North Atlantic Treaty Organisation or African Union should be with the approval of the Security Council.
Those who argue that the use of force was abused in Libya will use the need for NATO to have sought for such approval. The proponent of this line of argument must however pay regard to authorised intervention in grave circumstances such as genocide, war crimes and crimes against humanity.
The above consideration is important because the Consensus emphasized the fact that any recourse to force outside the framework of Article 51 of the UN Charter and Article 4 (h) of the AU Constitutive Act should be prohibited.
The corollary to the above is that the person or State who criticises intervention must demonstrate that the above Articles would have been violated. The need to discharge such an onus stems from the simple argument that international law is real law.
Those who justify the intervention by regional organisations in the Libyan crisis can use this argument to demonstrate that the Libyan situation called for the urgent action by regional organisations which wanted to protect the lives of civilians.
Under this pillar, the AU also envisaged a situation where the UNSC can approve the intervention by regional organisations “after the fact” in circumstances requiring urgent action. In such cases, the UN should assume responsibility for financing such operations.
Can the AU be effective in using force to deal with African conflicts or continental problems? Can it not be said that it is just a ‘Coalition of the Weak’ which waits for its sub-regions to act in issues affecting regions such as West Africa, East Africa, Northern Africa or Southern Africa?
The chief argument for allowing intervention by regional organisations can also be explained using the Libyan situation. The situation had transformed from general protests to a civil war or internal armed conflict (IAC). There were allegations that the forces of the late colonel Muammar Gaddafi were using force indiscriminately against civilians.
Within the pillar on collective security and use of force, post-conflict peace building is also very important. This is because African countries have been affected by the use of normative principles of international law such as the R2P.
Post-conflict peace building can be used to develop normative principles such as the Responsibility to build or R2B doctrine. Regional organisations can protect the lives of civilians using the provisions of the UN Charter. There has been the emergence of State responsibility as a doctrine that is used together with State sovereignty.
Sovereignty is now relative. Regional bodies cannot be spared. They are empowered to invoke the R2P. Similarly, they must also be made to shoulder the responsibility of rebuilding the shattered infrastructure of such States especially where the R2P would have been abused.
This is especially important because organisations which intervene in particular countries are also required to observe cardinal principles of international law such as principle of proportionality and principle of distinction.
They cannot use force indiscriminately. Using the Libyan example, it is clear that various aspects of the Libyan infrastructure were destroyed. A pertinent question that can be raised from an international legal justice perspective is very simple: who must rebuild Libya, the AU or NATO?
Alternatively, the AU called for the establishment a Peace-Building Commission. The importance of this envisaged commission is that it must be independent from the UNSC. It can be very important to peace building because it can benefit from other organs such as the General Assembly, UNSC and ECOSOC.
Apart from the above pillars, the “Ezulwini Consensus” also dealt with institutional reform of UN organs under the pillar called Institutional Reform. The key considerations were that most African countries were still under colonisation in 1945.
They also considered the importance of declarations such as the Harare Declaration and the need for unity of purpose; regional representation; involvement of the AU in selecting African countries to the UNSC and the use of the veto power.
The Harare Declaration showed how Heads of Government who met in Harare in 1991 pledged to support the United Nations and other international institutions in the world’s search for peace, disarmament and effective arms control; and in the promotion of international consensus on major global political, economic and social issues.
The reference to the 1945 period is historical in nature. It is clear that most African States gained independence from 1960 onwards. The reference to the Harare Declaration is important as it shows how soft law sources of international law are given primacy by regional organisations such as the AU.
The AU position on regional representation is clear. Africa does not have a permanent seat at the UNSC. Africa proposed a situation where it has not less than two permanent seats and five non-permanent seats. Currently, Western countries have three permanent seats in the United States of America, Great Britain and France. Eastern Europe has Russia and Asia has China. The admission of Africa to the UNSC has been long overdue.
Put differently, Europe has three States; North America has one country and Asia again has one country. The pertinent question in the AU`s quest for reform of the UNSC is simple: Does Africa speak with one voice?
It is encouraging to note that the Consensus realised the need for unity of purpose. It also emphasized the need for the AU to be actively involved in the selection of African States that should be included in the UNSC.
Can they achieve this? Now that the recent United Nations meeting focused on administrative reforms of the United Nations rather than real or ‘hard’ issues that deal with power politics in its variegated forms such as geopolitics or politics of the regions. The status quo may be maintained for some time to come.
Sharon Hofisi is a lecturer of international legal justice at the University of Zimbabwe. He is contactable at [email protected]
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