A. The Relationship between Politics and Law at the International Level

According to Loughlin’s observation, divergent understandings of the relationship between law and politics exist. For instance, the end of law arguably means the beginning of tyranny, but it may also mean the end of liberty,Footnote ³⁰ depending on differing conceptions of law.Footnote ³¹ While law has been increasingly influential in the conducting of politics, this ‘does not mean that law is replacing politics, but it is indicative of a change in the role and function of politics in the modern era’.Footnote ³² Notably, a process toward the ‘legalization of politics has led primarily to a politicization of law’.Footnote ³³ Nevertheless, a critique of politics is not absolutely unfounded. In practice, decisions influencing social life are commonly irrational or self-interested in that they may be made based on the decision-makers’ own particular understanding of human conditions.Footnote ³⁴ Yet politics should also be understood as an activity closely linked to the virtues of freedom and civilisation.Footnote ³⁵ It may be a vocation tied to exploring appropriate patterns of collective life.Footnote ³⁶ Thus, sometimes, politics are necessary to produce shared norms and to make the law work as expected.Footnote ³⁷ Some political values should be respected and pursued, as is necessary to make ‘good’ laws.Footnote ³⁸ Loughlin concludes by stressing that, ‘rather than existing in opposition to one another, politics and law can be understood as each performing important roles in the activity of creating and maintaining a normative universe’.Footnote ³⁹

In terms of structure and governance, because of the differences between domestic and international society, law’s relationship to politics in the domestic context is not the same as it is in the international context. Nevertheless, divergent conceptions of the relationship between law and politics provide a spectrum on which to understand the history and reality of such a relationship in international society.

In domestic society, a common consensus has existed among constituents on building an advanced and hierarchical organism based on law instead of politics. This explains what people have long debated: whether law has triumphed over politics and, if not, how to achieve this end, rather than whether law should triumph over politics. While today is still not the right time to announce the ‘end of politics and the triumph of law’, law has been firmly recognised as ‘a cordon’ within which power politics is conducted.Footnote ⁴⁰ As a result, the influence of power – the core of politics – on the creation and enforcement of law has been well controlled to the extent that constituents of domestic society find it acceptable, if not wholly satisfactory. The wealthy can lobby legislators to approve laws in their favour, but their influence is limited. Legislators are not easy to capture. The adoption of laws must comply with sophisticated procedures, including internal deliberations and public participation, thereby ensuring that competing arguments and interests receive fair consideration. Furthermore, the legislature may make timely updates to laws in light of new circumstances. The executive branch, which enforces laws, is subject to legal scrutiny, especially from judges. In short, at the domestic level, law is fairly reliable and giving too much regard to politics is often considered threatening to the rule of law.

However, we see quite a different picture in international society. There is a fundamental distinction between international and domestic society that should serve as a starting point from which to understand the relationship between law and politics in the formerFootnote ⁴¹ – namely, sovereign states, both strong and weak, are unlikely to intend to organise international society as a state-like organism. There may be two major reasons for this: first, such an organism would impose undue constraints on sovereignty, to an extent that sovereign states would find unacceptable; and second, such an organism would be no more effective than sovereign states themselves in achieving their state interests. Consequently, power is far less regulated at the international level than it is at the domestic – which, in some sense, is precisely what sovereign states want. While there have been attempts to extend the concept and practice of the rule of law from the domestic level to the international level,Footnote ⁴² international rule of law therefore ‘remains a contested concept and barely more than a hopeful project in the making’.Footnote ⁴³

This distinction brings about two additional consequences. First, those states with prominent power are often the major sources of threats to international peace. Like less powerful states, they inevitably prioritise their own state interests. They are reluctant to act in a manner that disadvantages them. They may further abuse their power to pursue their own interests. This is not to say that they do not care at all about the interests of other states or of international society; rather, they are often willing to shoulder the responsibility of promoting and protecting interests beyond their own. This is mainly because, unlike those who are less powerful, great powers have more resources to internalise the costs that may arise from actions protecting interests other than their own. Moreover, in a closely interconnected world in which no one actor can fully isolate from another, great powers have more resources and breath to invest in seeking long-term advantages, even at immediate cost. They are capable of renouncing short-term advantages that they calculate may become boomerangs against them later. Thus they may act with a long-term perspective rather than short-sightedly.

Second, given that nearly all states, whether powerful or not, prefer to cater to their own interests, international law often fails to be well made, duly updated, or effectively enforced. Great powers often have little interest in initiatives constraining the exercise of their prominent power.Footnote ⁴⁴ They also attempt to seek de jure privilege, or ‘legalized hegemony’,Footnote ⁴⁵ and de facto privileges in their favour.Footnote ⁴⁶ The Covenant of the League of Nations was the first universal treaty that legally privileged great powers. Several great powers acquired permanent membership of the Council of the League of Nations.Footnote ⁴⁷ The UN Charter goes even further. In addition to granting permanent Security Council membership to the P5, the UN Charter provides them with veto power, whereby each can block any non-procedural initiatives proposed in the Security Council.Footnote ⁴⁸ More generally, great powers are used to taking a selective approach to international law. While nearly all states treat international law in a selective way, the great powers’ selective approach is far more consequential.

Because of the unique structure and governance of international society, the focus has long been on how to induce great powers, individually or collectively, to respect international law rather than on how to try to control them. Implicit in the legal privilege granted to great powers is that they are expected to take advantage of their power ‘for the common good and promote and [to] obey international law’.Footnote ⁴⁹ This does not mean, however, that there has been no important legal progress achieved in constraining the great powers. The UN Charter, while privileging great powers, also represents great achievements in this regard. It is the first multilateral treaty that provides the principle of sovereign equality. The United Nations, in accordance with Article 2 UN Charter, is based on the principle of sovereign equality for ‘all its Members’. This principle was reaffirmed and clarified in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States, adopted by the UN General Assembly in 1970.Footnote ⁵⁰ These achievements arguably comfort people, like Emer de Vattel, who conceive of the relationship between politics and law thus: ‘[P]ower or weakness does not in this respect produce any difference … a dwarf is as much a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom.’Footnote ⁵¹ Importantly, as indicated by Van den Herik’s examination in this volume of numerous proposals aiming to refine the decision-making procedure regarding the use of force,Footnote ⁵² many states – especially those that are less powerful – continue their efforts to infuse more law into politics in the Security Council.

B. The Politics of Legal Privileges and the Great Powers

Debates on the relationship between politics and law in the Security Council, first and foremost, refer to how the political rationale underlying legal privileges granted to the great powers can be understood, and whether the conventional assumptions about the relationship between politics and law still holds. This issue can be illustrated from two different angles.

First, while great powers are the major sources for threats to peace, they are also guardians of that same international peace. This functional advantage is often invoked to justify great powers’ seeking privileges, de jure and de facto. The Permanent Court of International Justice (PCIJ) once admitted that:

This indicates that, given their prominent state power, great powers may act without due regard for the interests of other states and international society.

However, the PCIJ pointed out an important fact: while great powers make up a minority of the international society, they can provide huge resources to maintain peace that less powerful states cannot. For example, from 2019 to 2021, the effective rate of assessment for the peacekeeping operations of the P5 accounted for more than half of the total UN peacekeeping budget, while the other 188 UN member states contributed the remaining portion.Footnote ⁵⁴ It is unlikely that the contribution of the great powers to the maintenance of peace will considerably diminish in the near future.

Indeed, great powers have made some promises to justify their privileges. In explaining the justification for the veto power arrangement in the Security Council in the 1940s, the great powers stated that:

Implicit in this statement is that they would act in the interest of international peace if they were granted the veto power. In its report A More Secure World, submitted in 2004, the UN High-Level Panel on Threats, Challenges, and Change frankly stated that the great powers’ privilege was an ‘exchange’ granted to them, and that it implied their promise to use their overwhelming power in the interests of international society.Footnote ⁵⁶

The difference between the promises the great powers have made and the privileges they have attained should be noted. What the great powers have seized are ‘legal’ privileges; by contrast, apart from those legal obligations universally applicable to UN member states (e.g., the obligation of non-intervention), what the great powers have promised are not legal obligations as prescribed in the UN Charter but political obligations. Some negotiating states already took note of this problem at the San Francisco Conference. The representative from New Zealand, who was very concerned with potential abuse of the veto power, warned that the great powers ‘have so recognised their great responsibility, their pledge, not written, not entered into the Charter but spoken as of good faith’.Footnote ⁵⁷ He added: ‘I don’t think the possible effects of the veto were exaggerated at all.’Footnote ⁵⁸ While aware of concerns raised by states such as New Zealand, the great powers did not express any intention to commit, in the exercise of the veto power, to any legal obligations; rather, they merely stated that ‘[i]t is not to be assumed, however, that the permanent members, any more than the non-permanent members, would use their “veto” power maliciously to obstruct the operation of the Council’.Footnote ⁵⁹

Second, while less powerful states often complain that the great powers use and abuse their legal privileges, in addition to their raw power, the great powers in turn are gravely concerned about a ‘tyranny of the majority’ in international society.Footnote ⁶⁰ As noted above, both powerful and less powerful states prioritise their own state interests in international dealings. Thus, while less powerful states are particularly susceptible to coercion from powerful states in whatever form, they are not necessarily ‘good citizens’ in international society. Arguably, the major difference between powerful states and less powerful states is that the former often are more efficient in simply employing their prominent raw power. In contrast, the latter are more likely – perhaps have no other choice but – to rely on the legal principle of sovereign equality, whereby they disfavour any kind of weighed voting arrangement in international decision-making. The great powers’ concern with a tyranny of the majority is therefore not totally unfounded on ‘one country, one vote’ occasions, such as in the General Assembly. In fact, the UN High-Level Panel states frankly that it ‘recognise[s] that the veto had an important function in reassuring the United Nations’ most powerful members that their interests would be safeguarded’.Footnote ⁶¹ For the great powers’ part, their claim of legal privileges, arguably, does not (only) purport to acquire legal advantage over less powerful states but also ensures that their state interests are not threatened by those states who, albeit less powerful, constitute a majority in international society and who, like the great powers, prioritise their own state interests.

C. Legal Restraints on the Great Powers

Given the long-standing and widely accepted assumption that the great powers are dangerous to international peace inside or outside of the Security Council, actors have constantly reflected on how to best conceive meaningful constraints on them. In fact, legal restraints on the veto power have long been a major agenda item for those less powerful states. During the San Francisco Conference, they expressed a grave concern that the great powers would use their legal privileges ‘unthinkingly or unjustly or tyrannically’, but their efforts to constrain those privileges have largely failed.Footnote ⁶²

Nevertheless, a number of political and legal restraints on the great powers exist. We cannot say that these restraints do not make any difference at all, but it is fair to say that they do not work as expected. One example is the ‘group veto’. In arguing for veto power in the 1940s, the great powers suggested that they could not act ‘by themselves’; rather, elected members, ‘as a group’, could block any actions that the P5 initiated with unanimity.Footnote ⁶³ In practice, however, this legal constraint is of little relevance. Legally, elected members of the Security Council, if they unite, can block any initiatives proposed by the great powers. Unfortunately, there is no evidence that the elected members have the willingness to unite. In fact, the right of ‘group veto’ of the elected members has never been used in the history of the Security Council.

Some commentators argue that the elected members could shift from ‘lame ducks’ to become key players.Footnote ⁶⁴ In this volume, Van den Herik takes a similar stance. For her, the less powerful states do not only play a secondary role.Footnote ⁶⁵ Van den Herik notes that those less powerful but democratic Western states may form a democratic alliance with the United States, France, and the United Kingdom. In particular, she would expect this alliance to resist ‘a move away from current structures and liberal values’.Footnote ⁶⁶

In my view, the idea of a democratic alliance is a major source of confrontations, disabling the Security Council, whose primary responsibility is to maintain international peace and not to enhance domestic democracy. This is not to say that the Security Council can do nothing to enhance domestic democracy, but when domestic democracy gives rise to a situation or event that endangers international peace, calls for the Security Council to take enforcement action are likely to little more than exacerbate international confrontations and disrupt international peace. More importantly, other than by blocking the great powers’ initiative and uniting themselves to exercise the ‘group veto’, elected members of the Security Council cannot legally compel any of the P5 to take any action, because every P5 can exercise its veto power. Nevertheless, the elected members may put great political pressure on the P5. From the perspective of power politics, the P5 may find that they have to take this political pressure into serious consideration.

D. A Politicised Institution and Legalised Actions

Even though the Security Council was established in accordance with the UN Charter, a legal instrument, this UN organ is traditionally considered to be a political organ rather than a legal one. People in favour of this argument suggest generally that there is no conflict between the nature and activities of the Security Council. For example, Andreas S. Kolb submits that ‘there is no contradiction per se between the observation that the Security Council is a political body in that its decisions are shaped by political considerations and the possibility that international law may still define boundaries for its conduct’.Footnote ⁶⁷ Such a general argument is unhelpful – especially considering the fact that political considerations regularly prevail over law in the workings of the Security Council. Indeed, as illustrated above, politics interact with law in both negative and positive ways.Footnote ⁶⁸

In examining many meeting records of the Security Council, I have found that many Security Council members – especially the great powers – are accustomed to blaming each other, using very diplomatic but hypocritical language. They show little interest in identifying the relevant facts in legal terms – apart from rhetorically referring to UN Charter provisions or abstract values.Footnote ⁶⁹

Indeed, the first and foremost mission of the Security Council is to maintain international peace, which, on some occasions, implies sacrificing justice. This reminds us of the argument of Judge Stephen M. Schwebel in the International Court of Justice (ICJ), in the Nicaragua case, which has frustrated many international lawyers. Judge Schwebel suggested that, ‘[i]n short, the Security Council is a political organ which acts for political reasons. It may take legal considerations into account but, unlike a court, it is not bound to apply them.’Footnote ⁷⁰ Specifically, he supported the way in which the Security Council addressed a particular asserted aggression. He said that, ‘[h]owever compelling the facts which could give rise to a determination of aggression, the Security Council acts within its rights when it decides that to make such a determination will set back the cause of peace rather than advance it’.Footnote ⁷¹

However, it should be stressed that the ‘decisions’ adopted by the Security Council are legally binding for all UN members, whether they are in agreement or not.Footnote ⁷² These Security Council resolutions may also apply to non-UN member states if they are deemed ‘necessary for the maintenance of international peace and security’.Footnote ⁷³ Thus it is justified to inquire what role law, or rule of law, can and should play in enhancing the accountability of the Security Council.

Since the end of Cold War, accountability has become more important for the Security Council. Noticeably, the requirement of accountability is invoked unevenly. The Security Council, by referring to accountability, often requires a targeted state to enforce Council measures.Footnote ⁷⁴ It also requires that individuals in peacemaking operations be held accountable for any sexual exploitation and abuse they perpetrate.Footnote ⁷⁵ However, the Security Council hardly specifies what ‘accountability’ means – that is, what the Security Council has done to make its decision-making processes more inclusive or to establish a more participatory process, as Van den Herik highlights in this volume.Footnote ⁷⁶

This inquiry is warranted because of the revival of the Security Council in the wake of the Cold War, which demonstrated its strength while increasing the risks arising from its institutional weakness.

First, it has been generally recognised that a threat to peace does not necessarily indicate an act that is in violation of international law. Unlike the League of Nations, the United Nations’ collective security mechanism is ‘not conceived as a reaction to a violation of international law, but as a preventive tool to ensure the maintenance of peace’, and hence it primarily assumes a ‘police function’ under Chapter VII UN Charter.Footnote ⁷⁷ Hans Kelsen suggests that an act without breach of international law may also trigger the application of Article 39.Footnote ⁷⁸ Furthermore, Kelsen argues that the Security Council has the power to adopt and enforce ‘a decision which it considered to be just though not in conformity with existing law’ if it finds the existing law unsatisfactory.Footnote ⁷⁹ Given that international law was less developed in the 1940s, Kelsen’s argument is sound. Perhaps inspired by the dual nature of the UN’s collective security mechanism, some authors go further and distinguish ‘law enforcement’, which targets acts in violation of international law, from ‘peace enforcement’, which targets acts not inconsistent with international law.Footnote ⁸⁰ However, we should bear in mind an important fact: while ‘peace enforcement’ is not triggered by a wrong act, relevant legal measures or actions may also be adopted and enforced. Obviously, the sovereignty of a state is more likely to be unduly compromised by ‘peace enforcement’ than by ‘law enforcement’. A cautious approach should therefore be taken when peace enforcement is enacted against a state that has not violated any primary rules of international law (perhaps because such rules did not exist at the time of the impugned behaviour).

Such a cautious approach has already been adopted in the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts, adopted in 2001. Under the Draft Articles, some legal burdens may be imposed on a state that acts in ways not prohibited by international law. The consequences on this occasion would be distinct from those arising from an international wrongful act – that is, what is incurred on the former occasion refers to ‘international liability’, while, in the latter situation, it is ‘international responsibility’. Furthermore, the loss incurred on the first occasion may be divided between the relevant states in the dispute.Footnote ⁸¹ This is indeed significant since the international law of peace has been far more developed in the 21st century than in Kelsen’s time. The distinction between ‘law enforcement’ and ‘peace enforcement’ is less important. Yet it is still meaningful for two reasons: first, novel international threats continue to emerge,Footnote ⁸² but the relevant international law is not created or updated in a timely fashion; second, some states do not accept the relevant extant international law or they withdraw from their international commitments.

Second, some authors seem to assume that the measures provided in Article 39 UN Charter can be taken in disregard of international law.Footnote ⁸³ Kelsen was a leading proponent of this view. Based on his understanding of ‘measures’ in Article 39, Kelsen suggests that enforcement measures were not designed ‘to maintain or restore the law, but to maintain, or restore peace’.Footnote ⁸⁴ Thus they are ‘purely political measures … which the Security Council may apply at its discretion for the purpose to maintain international peace and security’.Footnote ⁸⁵ Kelsen further argues that the requirement ‘in conformity with the principles of justice and international law’ in Article 1(1), which the Security Council shall comply with when it acts in accordance with Article 24, did not apply to the Security Council measures under Chapter VII but only to those under Chapter VI.Footnote ⁸⁶ In Kelsen’s view, to interpret measures under Chapter VII not as ‘sanctions’ (i.e., as responses to a prior breach of the law) subject to general international law but instead as measures at the discretion of the Security Council ‘would be in conformity with the general tendency which prevailed in drafting the Charter: the predominance of the political over the legal approach’.Footnote ⁸⁷ Notwithstanding, Kelsen is aware of the weakness of such interpretation, recognising that it ‘lead[s] to the consequence that with respect to enforcement measures there is no difference between a Member which has violated its obligations under the Charter, and a Member which is not guilty of any such violation’.Footnote ⁸⁸ Thus Kelsen admits that such interpretation is ‘not the only possible one’.Footnote ⁸⁹ An alternative exists: ‘[I]n accordance with general international law, a forcible interference in the sphere of interest of a state, that is reprisals or war, is permitted only as a reaction against a violation of law, that is to say as sanction.’Footnote ⁹⁰ Interpreted thus, the enforcement measures under Chapter VII – given that they constitute forcible interferences – ‘must be interpreted as sanctions if the Charter is supposed to be in conformity with general international law’.Footnote ⁹¹

Kelsen further distinguishes the situations under Articles 41 and 42. He appears confident on the alternative interpretation of the Article 41 measures as sanctions: ‘No other interpretation is possible with respect to the enforcement measures not involving the use of armed force as determined in Article 41’, because those measures ‘have the character of reprisals; and according to a generally accepted opinion, reprisals are permissible only as reaction against a violation of international law, that is to say, as sanctions’.Footnote ⁹² By contrast, Kelsen is less confident of the interpretation of measures under Article 42 as sanctions (requiring a prior breach). Under Article 42, the use of armed force may be initiated when the Security Council finds the Article 41 measures inadequate. Kelsen contends that ‘whether such action is always possible without constituting a violation of general international law’ remains debatable.Footnote ⁹³

The requirement of ‘prompt and effective’ UN action, as demanded by Article 24 UN Charter, is another factor invoked to support the enforcement of Security Council measures without regard for international law. According to Krisch, Security Council actions shall not be delayed by time-consuming procedures to ensure their effectiveness.Footnote ⁹⁴ Because of the United Nations’ shameful failure to respond to the Rwanda genocide in 1994, it is absolutely necessary that the Security Council act promptly and effectively. However, the criteria of ‘prompt and effective’ is a major source of disagreement among Council members. Looking into the meeting records of the Security Council, we readily find that members often disagree not over what measures should be taken but over when they should be taken. Comparatively speaking, the Western powers generally insist that coercive enforcement measures be taken as soon as possible, while some others argue that hasty measures are not helpful in maintaining the peace. Actually, the requirement ‘prompt and effective’ is not only a legal issue but also a factual one. Thus the understanding of ‘prompt and effective’ on a particular occasion largely depends on whether the relevant situations or disputes can be assessed and verified credibly. Unfortunately, as many Security Council meeting records show, the Security Council members often quarrel with each other over what has really happened.

Third, the Security Council undertook some significant legislative activities. They affected particular states targeted by Security Council measures and also broadly impacted international law. In Kelsen’s view, when the Security Council makes and enforces ‘a decision which it considered to be just though not in conformity with existing law’ that it finds unsatisfactory, it seeks to remedy the situation by ‘creat[ing] new law for the concrete case’.Footnote ⁹⁵

It has been suggested that the Security Council, in accordance with the UN Charter, is not prevented from undertaking legislative activities. In the Tadić case, the Appeal Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) held that judicial, executive, and legislative functions were not clearly divided among the UN organs.Footnote ⁹⁶ Anne Peters submits that, while the UN Charter drafters might have conceived of a ‘police function’, it was not explicitly provided for by the UN Charter. The ‘measures’ provided for in Article 39 are sufficiently broad so as to include legislative measures. It can therefore be assumed that while nothing in the Charter explicitly authorises the Security Council to adopt resolutions with legislative content, ‘it does not rule it out, either’.Footnote ⁹⁷ Peters observes that the majority of the UN members appear to be in support of the Security Council’s legislative activities.Footnote ⁹⁸

Fourth, the determination of relevant facts faces a high risk of manipulation in the context of politicised institutions and legalised actions. Whether the legal actions approved by the Security Council or in the name of the Security Council resolutions are justified or not depends on whether a situation or dispute can be duly determined, which is particularly significant for those outside the Security Council. The Iraq war is a strong example. No one argued that the Security Council was not entitled to authorise enforcement measures should Iraq have been found to have gravely violated Resolutions 687 and 1441; rather, the debate very much focused on whether Iraq had indeed gravely violated those resolutions.

On 5 February 2003, then US Secretary of State Colin Powell presented evidence before the Security Council – ‘some are United States sources and some are those of other countries’ – firmly asserting that the United States ‘know[s] about Iraq’s weapons of mass destruction as well as Iraq’s involvement in terrorism’, and thus Powell accused Iraq of grave breaches of Resolutions 687 and 1441.Footnote ⁹⁹ The United Kingdom supported the US ‘evidence’.Footnote ¹⁰⁰ China, while welcoming the information presented by the United States, supported the UN Monitoring, Verifying and Inspection Commission (UNMVIC), which, together with the International Atomic Energy Agency (IAEA), wanted to progress its work.Footnote ¹⁰¹ Russia held a similar position.Footnote ¹⁰² Interestingly, unlike the United Kingdom, France – while noting there were some grey areas in Iraq’s cooperation with the UNMVIC – did not support the United States’ accusations.Footnote ¹⁰³ In other words, the Security Council members could not agree on whether Iraq gravely violated Resolutions 687 and 1441. For the United States’ part, the important thing was that it had already presented ‘evidence’ before the Security Council, not whether the asserted evidence would be verified by the UNMVIC or other Security Council members.

Based on its self-identified ‘evidence’, the United States, together with the United Kingdom, launched ‘Operation Iraqi Freedom’ on 20 March 2003.

On 30 May, when the Iraq war ended, the UNMVIC submitted a report to the Security Council, stating that it ‘did not find evidence of the continuation or resumption of programmes of weapons of mass destruction or significant quantities of proscribed items from before the adoption of Resolution 687 (1991)’.Footnote ¹⁰⁴

Again, in reviewing the United Kingdom’s intervention in Libya in 2011, which was based on Security Council Resolution 1973, the Foreign Affairs Committee of the UK House Commons admitted that the evidence of the threat to civilians in Libya was presented with ‘unjustified certainty’ and thus intervention in Libya was a ‘intelligence-light decision’.Footnote ¹⁰⁵ However, the great powers who justified their actions with the relevant Security Council resolutions were not held accountable for their actions. Nor did the Security Council later announce that the use of force against Iraq in 2003 and Libya in 2011 were in breach of the UN Charter and the relevant Security Council resolutions.

These cases show that serious long-term consequences often occur other than might be expected by the Security Council and those states actively supporting or seeking the Security Council actions. Based on his observation on UN peacekeeping operations, Martti Koskenniemi suggests that ‘there is very little that is predictable about such operations’.Footnote ¹⁰⁶ Indeed, the UK Foreign Affairs Committee acknowledged that the intervention brought about in Libya ‘political and economic collapse, inter-militia and inter-tribal warfare, humanitarian and migrant crises, widespread human rights violations, the spread of Gaddafi regime weapons across the region and the growth of ISIL in North Africa’.Footnote ¹⁰⁷

All this notwithstanding, international law is absolutely relevant to the workings of the Security Council. In the Conditions of Admission Case, the majority of the ICJ judges suggested that ‘the political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment’.Footnote ¹⁰⁸ They argued that, ‘[t]o ascertain whether an organ has freedom of choice for its decisions, reference must be made to the terms of its constitution’.Footnote ¹⁰⁹ In that case, the ICJ noted that ‘the limits of this freedom are fixed by Article 4, and allow for a wide liberty of appreciation. There is therefore no conflict between the functions of the political organs and the exhaustive character of the prescribed conditions’.Footnote ¹¹⁰ In other words, the Security Council can exercise discretion out of political considerations only to the extent that Article 4 allows. The ICJ concluded that the requirements specified in Article 4(1) were exhaustive and that any additional requirements were unjustified.Footnote ¹¹¹ Unfortunately, many of the UN Charter provisions are so broad that a definite clarification cannot be made. Thus they are susceptible to misuse and abuse by either the Security Council or particular UN members. Furthermore, the ICJ is not often sought out for advisory opinions to clarify UN Charter provisions and few of the advisory opinions it has delivered concern the workings of the Security Council.Footnote ¹¹²

Since the 1990s, propositions have emerged that more legal limits on the workings of the Security Council should be considered, thereby enhancing the accountability of this UN organ. Like many others, Peters agrees that peace may not necessarily be brought about through lawful actions. However, she stresses that:

In her view, the fact that the Security Council takes actions under Chapter VII in emergency situations ‘does not justify any move to place the decisions as such outside the law’.Footnote ¹¹⁴

Peters further suggests that the legislative activities of the Security Council should be subject to substantive and procedural constraints. The former mainly include the following.

1. (i) The Security Council should limit its legislative activities on occasions of ‘significant, new and urgent threat in an emergency situation’, which amount to a threat to peace as provided for in Article 39.

2. (ii) The Security Council should respect the institutional balance between the main UN organs and, especially, should not adopt legislative resolutions inconsistent with General Assembly resolutions.

3. (iii) The legislative measures should intrude as little as possible.

4. (iv) The Security Council should respect general international law as much as possible.

As a rule, the Security Council should legislate only when there is a gap in the existing international law and the legislative resolutions should not contradict international law.

As for procedural constrains, Peters suggests that the Security Council subject deliberations to the requirement of transparency, seek a broad consensus among states, and consider leeway to relevant states and help them to carry out legal measures.Footnote ¹¹⁵

Ius cogens has also been invoked to impose constraints on the Security Council.Footnote ¹¹⁶ However, the great powers tend to resist these attempts. For example, Van den Herik observes that while many middle-class states support the idea of extending the ius cogens to the Security Council, the P5 discourage such an attempt.Footnote ¹¹⁷ It is the great powers’ resistance that has sidelined some legal arrangements already existing in the UN Charter that would help to enhance the Security Council’s accountability. Under Article 43, an agreement should be negotiated between the Security Council and a particular UN member, or a group of UN members, in the maintenance of international peace. Furthermore, under Article 47, a military staff committee could and should be established. Unfortunately, these two Articles have remained dead letter for decades.

A. The Cold War

In World War II, the Allied forces – especially the great powers – exhibited unity in fighting the Axis alliance. In Tehran, in 1943, Roosevelt, Churchill, and Stalin stated: ‘We came here with hope and determination. We leave here, friends in fact, in spirit and in purpose.’Footnote ¹¹⁸ During their negotiations for establishing the United Nations, almost all participating states agreed that unity among the great powers was a precondition to the would-be organisation making a difference in the maintenance of peace.

As its ‘chief designer’, the United States’ vision of world unity was particularly significant.Footnote ¹¹⁹ During the San Francisco Conference, Senator Connally, an American representative, affirmed a belief that ‘the Security Council when united, can preserve peace; we fear that if it is not united, it cannot preserve peace’.Footnote ¹²⁰ He applauded participants, saying: ‘Now we are united. Now we are marching forward under the same banner on behalf of peace and security and with the same unity, the same harmony, the same purposes, and the same resources.’Footnote ¹²¹ Connally stated: ‘[W]e are voting and did vote for those measures that would contribute to the continued unity and harmony among permanent members of the Security Council.’Footnote ¹²² Arguably, it was that vision of unity, together with overwhelming state power, that made US President Roosevelt change his mind, shifting from a regional approach to a global approach to world peace. As a result, the United States strongly recommended that the UN Security Council be conferred with the primary responsibility of maintaining peace and, to this end, be entrusted with extensive authority, while the great powers be granted legal privileges.

However, that rosy vision of international unity was questioned from the very beginning. Some British elites warned that their country should not have high expectations of the United Nations. They doubted that the USSR would be a reliable partner: the United Kingdom was cautious that the USSR may be more dangerous than Nazi Germany.Footnote ¹²³ For its part, the USSR was similarly suspicious of the new organisation. Thus it insisted on the principle of unanimity among the P5 in Security Council decision-making and threatened that, without veto power, ‘there would simply be no United Nations’.Footnote ¹²⁴

The Cold War emerged in 1947. During the next four decades, the USSR-led East/socialist bloc and the US-led West/capitalist bloc struggled with each other – largely because of ideological and strategic considerations. In 1945, when the United Nations was founded, and during the Cold War, only the United States and the USSR qualified as world powers. While these two enjoyed this privilege on the Security Council, the United Kingdom, France, and China were merely the ‘middle’ great powers. They could only ‘expect to be consulted on any issue within the radius of their actual power’.Footnote ¹²⁵ How the Security Council worked largely depended on relations between the two world powers.

The Cold War had multiple implications for international lawFootnote ¹²⁶ – particularly for the working of the Security Council and, even more specifically, for the undue exercise of the veto power. Between 1946 and 1989, the Security Council debated 646 draft resolutions, 189 of which were vetoed. Nearly 50 per cent of these vetoes happened in the 1950s. Most vetoes were cast by the USSR and thus the exercise of the veto power was considered ‘almost synonymous with Soviet foreign policy’.Footnote ¹²⁷ Because of the conspicuous abuse of the veto power,Footnote ¹²⁸ a call emerged for the renegotiation of the UN Charter and the reconstruction of the Security Council.Footnote ¹²⁹ Since the 1970s, however, the United States and the United Kingdom have overtaken the USSR: between 1970 and 1989, the USSR vetoed on only 16 occasions, while the United States and the United Kingdom exercised their veto power 80 times and 30 times, respectively.Footnote ¹³⁰

The result of these struggles among the great powers – especially between the United States and the USSR – was that the Security Council is generally said to have been fundamentally disabled, except for peacekeeping operations.Footnote ¹³¹ Such an assessment is sound, if a bit too general. Here, I would like to discuss the influence of power politics on particular legal arguments that were expounded in the Security Council by examining the P5’s position on the humanity and sovereignty of Viet Nam’s intervention in Cambodia in the late 1970s.Footnote ¹³²

It is well known that, since the 1990s, some states have relied on humanitarian concerns to justify their initiatives or actions within or outside the Security Council, while some other states have invoked the principle of sovereignty to oppose humanitarian interventions. That landscape was different during the Cold War.

In December 1978, Viet Nam waged a military intervention against Cambodia and soon controlled most of the Cambodian territory. Viet Nam’s intervention led to the collapse of Pol Pot’s regime. As a major justification for its intervention, Viet Nam asserted that the regime had massacred some 3 million civilians in Cambodia.Footnote ¹³³ While condemning the regime’s consistent and grave human rights violations, France and the United Kingdom’s arguments marked a sharp contrast with their position after the end of the Cold War. France stated:

The United Kingdom took a similar stance. It stated that:

The USSR expressed a totally different position. In its view, the gross violation of human rights deprived the Pol Pot regime of legitimacy; thus it was the Cambodian people that overthrew the vicious Pol Pot regime. The USSR stated that:

In contrast with these three states, the United States held a moderate position. Intriguingly, the US position reminds many people of China’s more recent statements in the Security Council.Footnote ¹³⁷ The United States argued that:

Unlike France and the United Kingdom, and particularly the USSR, China did not mention the gross violations of human rights committed by the Pol Pot regime. However, it did – as did France and the United Kingdom – argue that Viet Nam’s action constituted aggression against Cambodia. Thus China appealed that ‘it is the incumbent duty of all peace-loving and justice-upholding countries to stop Viet Nam’s aggression, support the Kampuchean people’s struggle and save peace in South-East Asia’.Footnote ¹³⁹

The P5’s positions on humanitarian concern and sovereignty were heavily influenced in this case by considerations of power politics. The USSR’s support for Viet Nam comes as no surprise, because it was an ally of Viet Nam, and its condemnation of the Pol Pot regime’s atrocities was obviously hypocritical. The United States’, the United Kingdom’s, and France’s opposition is understandable, for they opposed the action of Viet Nam, and they sided with the USSR even though they acknowledged the humanitarian disaster in Cambodia. In contrast, China’s position is more complicated. On the one hand, the relations between China, the USSR, and Viet Nam were very bad in the 1970s, and there were actually occasional military conflicts between China and Viet Nam. On the other hand, China maintained close relations with the Pol Pot regime. Therefore, while China condemned Viet Nam’s aggression, it was silent on the regime’s atrocities. Thus each permanent member interpreted humanity and sovereignty in ways that served their own state interests.

Although power politics largely disabled the Security Council in the Cold War, they did not totally prevent the UN members from seeking new arrangements to maintain international peace. A significant example is the ‘Uniting for Peace’ (UFP) procedure. The idea for the procedure came from the United States. According to the UFP procedure, if a threat to peace could not be addressed by the Security Council because of a lack of unanimity among the P5, it should be referred to the UN General Assembly and the Assembly should make an appropriate recommendation for collective measures.Footnote ¹⁴⁰

In the early months after the outbreak of the Korean War, the USSR was absent from the Security Council. As a result, the Security Council successfully adopted three resolutions declaring that North Korea’s armed attack against South Korea constituted a ‘breach of the peace’; these resolutions authorised UN members to provide assistance to South Korea and to restore peace in the Korean Peninsula.Footnote ¹⁴¹ Aware that the USSR’s return would make it impossible to adopt any new resolutions in the Security Council, the United States sought an alternative path. It succeeded in convincing the General Assembly to approve a UFP resolution, since, in the United Nations’ early years, the majority of Members had an affinity with the Western world.Footnote ¹⁴² That resolution stated that if the Security Council, ‘because of lack of unanimity of the permanent members’, were to fail to exercise its primary responsibility for the maintenance of peace in the case of a breach of the peace or acts of aggression, the General Assembly would consider the matter immediately with a view to making appropriate recommendations to the UN members for collective measures, including the use of armed force when it is necessary to maintain or restore peace and security.Footnote ¹⁴³ In other words, the General Assembly, on these occasions, would assume the ‘primary’ responsibility for the maintenance of peace.

Actions under the UFP procedure were taken four times in the 1950s.Footnote ¹⁴⁴ However, it was rarely used in the following decadesFootnote ¹⁴⁵ – until it was again applied in response to the Russian invasion in Ukraine.

B. The ‘New World Order’

The ‘New World Order’ was a fashionable political discourse in the 1990s and 2000s. In his address delivered before the US Congress on 11 September 1990, President George W. Bush introduced his conception of the ‘New World Order’:

While there were debates, at the outset, as to what it really meantFootnote ¹⁴⁷ and whether it would come to fruition, the ‘New World Order’ betokened a less confrontational and more harmonious world for many states. Indeed, China and Russia were optimistic about what the world might look like after the Cold War. In a declaration issued jointly in 1997, Russia and China stated:

The New World Order had two major features: first, democracy and human rights attained greater importance in the foreign policy of the Western states than they had during the Cold War; second – and more importantly – the Western states acquired overwhelming power to pursue their foreign policy agendas and the world entered a ‘unipolar’ era. The United States became ‘the first and the only truly global power’ in the wake of the Cold War.Footnote ¹⁴⁹ The USSR disappeared in December 1991. Yeltsin-led Russia struggled to rebuild the nation and was neither powerful enough nor willing to challenge the US-led international order; rather, Russia adopted a pro-Western policy. China, meanwhile, was under a wide range of sanctions imposed by Western states who accused China of forcefully suppressing protests in Tiananmen Square in 1989.Footnote ¹⁵⁰ For China, release from international sanctions and improved relations with the Western world were a priority, and hence China maintained a policy of ‘keeping a low profile’ in international relations.Footnote ¹⁵¹

This context has significantly shaped the workings of the Security Council since the 1990s. Now with unrivalled power, the United States and like-minded states felt comfortable reshaping the world order – in particular, the workings of the Security Council – to meet their own expectations. They encountered few difficulties in pursuit of the Security Council’s approval for measures they favoured. While Russia and China were not supportive of many of these measures, they were reluctant to exercise their veto power; their abstention votes grew significantly in the 1990s, compared with the 1980s – Russia, from 15 to 20, and China, from 13 to 42.Footnote ¹⁵² This gave many people the impression that unity existed among the great powers of the Security Council.

In this new context, the Security Council played a more complicated role in the maintenance of peace. On the one hand, it succeeded more often in taking ‘prompt and effective measures’ to address threats to international peace, increasing international confidence in the UN collective security system and defending an international order centred on the UN Charter. On the other hand, some measures that the Security Council adopted were controversial both within or outside the Security Council and opened the door to different interpretations, risking misuse and abuse.

After Iraq invaded Kuwait on 2 August 1990, the Security Council adopted six resolutions within four months.Footnote ¹⁵³ Resolution 660, for example, condemned the Iraq invasion of Kuwait, demanding ‘that Iraq withdraw immediately and unconditionally all its forces’ from Kuwait. Resolution 678, in particular, authorised UN members to use ‘all necessary measures’ to enforce Resolution 660 unless Iraq implemented it. The permanent members vetoed only one Security Council resolution concerning the Gulf War in 1990 – that one a resolution concerning humanitarian need proposed by Cuba but vetoed by the United States, the United Kingdom, and France.Footnote ¹⁵⁴ On 17 January 1991, in accordance with Resolution 678, a US-led coalition of states initiated collective action against Iraq and soon expelled the Iraqi forces from Kuwait. Resolution 687 acknowledged ‘the restoration to Kuwait of its sovereignty, independence and territorial integrity and the return of its legitimate Government’.

Ten years later, the Security Council acted promptly after terrorist attacks against the World Trade Centre in New York on 11 September 2001. One day after the attack, the Security Council members unanimously adopted Resolution 1368 to combat ‘by all means’ threats to international peace and security caused by terrorist acts.Footnote ¹⁵⁵ More importantly, the Resolution mentioned in its Preamble ‘the inherent right of individual or collective self-defence in accordance with the Charter’. Thus Resolution 1368 implied that non-state actors could trigger Article 51 UN Charter, which had traditionally been understood as being applicable to attacks by sovereign states.Footnote ¹⁵⁶ Surprisingly, such a significant legal breakthrough met with no challenge in the Security Council when the draft resolution was debated. It should be noted, however, that not all UN members were in support of it. Specifically, members were divided in the UN General Assembly debate on terrorism in early 2001 as to whether the provision of self-defence could serve as a legal basis to combat terrorism. The legal propriety and consequence of Resolution 1368 remains open to debate.Footnote ¹⁵⁷

Nevertheless, the Security Council after the Cold War seemed more susceptible to power politics. Significantly, it has sometimes had to legitimise, in some sense, those actions that were taken by several great powers but opposed by many of the other members. The 1999 Kosovo War is an example.Footnote ¹⁵⁸ The Security Council did not authorise NATO’s use of force against the Federal Republic of Yugoslavia (FRY) and some of NATO’s members recognised that there was no legal basis for the use of force. Yet NATO conducted airstrikes against the FRY for 70 days in the name of a humanitarian emergency in the FRY.Footnote ¹⁵⁹ It should be stressed that few UN members accepted this explanation and many contended that NATO’s actions were categorically unlawful under the UN Charter.Footnote ¹⁶⁰ While Russia and China condemned NATO’s flagrant violation of the Charter provision prohibiting the use of force, they could not stop NATO’s actions inside or outside of the Security Council. Ultimately, they had to accept that Resolution 1244 mapped a way out of the Kosovo crisis in line with the principles established by the then Group of Eight (G8) foreign ministers.Footnote ¹⁶¹

We can also see some evidence of the Security Council legitimising the consequences of a use of force in the context of the 2003 Iraq War. Resolution 687 included disarmament obligations for Iraq in the package of measures targeting threats to peace arising from Iraq’s invasion of Kuwait. Given Iraq’s failure to fully implement those obligations, the Security Council adopted several resolutions in the following years. Resolution 1441, for example, offered Iraq ‘a final opportunity’ to comply with its disarmament obligations.Footnote ¹⁶² Some Security Council members recognised that Iraq had made progress towards compliance with those obligations. However, the United States, the United Kingdom, and like-minded states asserted that Iraq had cheated the world again and again. On 18 March 2003, they launched ‘Operation Iraqi Freedom’ and overturned the regime of Saddam Hussein – even though the United States and the United Kingdom disagreed somewhat over the legal basis of their operation. The United States argued that if Resolution 1441 were not effectively enforced, the use of force would be justified.Footnote ¹⁶³ In contrast, the United Kingdom’s legal advisers have tended to believe that they needed a new Security Council resolution to authorise the use of force.Footnote ¹⁶⁴

It was later found that there was no evidence that Iraq had violated the disarmament obligations.Footnote ¹⁶⁵ In addition to ruining Iraq, ‘Operation Iraqi Freedom’ had other serious consequences – not least that an enfeebled Iraq became a breeding ground for terrorism, including the so-called Islamic State of Iraq and Syria (ISIS), which constituted a new threat to international peace in the Middle East. All across the world ‘Operation Iraqi Freedom’ was condemned as unlawful, and the United States and its allies were accused of having committed an aggression.Footnote ¹⁶⁶ Yet the United States and the United Kingdom were not held accountable for their actions.

C. A ‘New Cold War’?

Given the deteriorating relations between the Western world and Russia and China during the past decade, there has been a growing concern that the world is at risk of sinking into a ‘new Cold War’.Footnote ¹⁶⁷ Speaking at a China–US think tanks media forum, China’s Foreign Minister Wang Yi refused to give a direct answer when asked about the possibility of a ‘new Cold War’ brewing between China and the United States; instead, he cautioned that if the United States ‘chooses to conjure up “China Threats” of various kinds, its paranoia may turn into self-fulfilling prophecies at the end of the day.’Footnote ¹⁶⁸ In contrast, Russia’s attitude is frank. Russian Foreign Minister Sergey Lavrov has explicitly warned of the start of a ‘new Cold War’.Footnote ¹⁶⁹ Either way, it appears certain that the world now faces a power constellation similar to that of the Cold War, which may again significantly affect the workings of the Security Council.

As already noted, Russia had adopted a pro-Western policy in the 1990s, with the expectation that it would be welcomed as a partner to or member of the Western world. Russia was soon disappointed. Not only did NATO not disband when the Warsaw Treaty Organization ceased to exist, but also it expanded eastward to include several Eastern European countries that had been members of the former USSR. NATO constantly expanded its influence over other Eastern European countries and over former USSR members, some of whom sought NATO membership.Footnote ¹⁷⁰ From the perspective of international law, NATO had the right to expand and the relevant states had the right to apply for NATO membership. From the perspective of power politics, however, these actions placed Russian strategic interests at stake.Footnote ¹⁷¹ Russia claimed that NATO’s expansion – along with an increased NATO military presence and activities approaching the Russian border – constituted ‘a violation of the principle of equal and indivisible security and [led] to the deepening of old dividing lines in Europe and to the emergence of new ones’.Footnote ¹⁷²

In fact, some Western strategic analysts had already warned of the potential negative impact of NATO’s expansion.Footnote ¹⁷³ After Vladimir Putin became president in 2000, Russia began to ‘leave … the West’Footnote ¹⁷⁴ and turned to a more aggressive foreign policy. The Syrian crisis is an example.Footnote ¹⁷⁵ Unlike Ukraine, Syria is not a part of the former USSR, but it is one of few places where Russia can still exercise strategic deterrence in lieu of the Western powers. The struggle between Russia and the Western powers is a major cause of the Syrian crisis that has already lasted more than ten years. Notably, UN Secretary-General António Guterres has explicitly referred to it as a ‘proxy war’: in Syria, ‘we see confrontations and proxy wars involving several national armies, a number of armed opposition groups, many national and international militias, foreign fighters from all over the world and various terrorist organizations’.Footnote ¹⁷⁶

The Ukrainian crisis, however, could have a more destructive impact on international peace. People are not shy in talking about it in Cold War terms. From the Russian perspective, NATO’s eastern expansion to include Ukraine constitutes a strategic threat to Russia; thus Russia asserts that Ukraine ‘is merely a geopolitical playground for some Western politicians’.Footnote ¹⁷⁷ In contrast, Western powers suggest that Russia is the very source of rebels and the secessionist movement in the eastern part of Ukraine.

An event crucial to the crisis occurred in 2014, after the local Crimean government held an independence referendum in March that was unconstitutional under Ukrainian law and Russia immediately accepted Crimea’s application to become a part of Russia. The Western powers condemned Russia’s action as an annexation. They explicitly compared the Crimean crisis with what the USSR once did to Hungary and Czechoslovakia. The United Kingdom stated: ‘This is not 1968 or 1956. The era in which one country can suppress democratisation in a neighbouring state through military intervention on the basis of transparently trumped-up pretexts is over.’Footnote ¹⁷⁸ Similarly, France’s representative argued: ‘It is in fact the voice of the past that we have just heard. I was 15 years old in August 1968, when the USSR forces entered Czechoslovakia. We heard the same justifications, the same documents being flaunted and the same allegations.’Footnote ¹⁷⁹ On 1 April 2014, the General Assembly adopted Resolution 262 calling for all states ‘to desist and refrain from actions aimed at the partial or total disruption of the national unity and territorial integrity of Ukraine, including any attempts to modify Ukraine’s borders through the threat or use of force or other unlawful means’.Footnote ¹⁸⁰ It is noteworthy, however, that only 100 states supported the Resolution, while 58 states abstained and 11 states opposed it. Nearly all of the states, including those that cast abstention votes, expressed their support for the principle of sovereignty and territorial integrity. It seems as though some of them considered the annexation partly attributable to the Western powers. For example, Ecuador stated that the ‘irresponsible presence of foreign politicians’ aggregated violence in Ukraine, which were the ‘precedents’ for the referendum taking place in Crimea and the basis for Russia consenting to Crimea’s application to join Russia.Footnote ¹⁸¹

The Ukrainian crisis deteriorated into the so-called SMO that Russia waged on 22 February 2022. The UN General Assembly, by convening an Emergency Special Session, adopted a resolution on 2 March 2022Footnote ¹⁸² – after 141 states voted in favour of it, 5 opposed it, 35 abstained, and 12 states did not vote. Resolution ES-11/1 states that the SMO constitutes an aggression against Ukraine. The Resolution recognises that the SMO is ‘on a scale that the international community has not seen in Europe in decades’ and that urgent action is needed to ‘save this generation from the scourge of war’.Footnote ¹⁸³ It condemns the SMO and states that ‘no territorial acquisition resulting from the threat or use of force shall be recognized as legal’.Footnote ¹⁸⁴

Two additional points are worth mentioning. First, while the European Union, most NATO members, and some of the United States’ allies (i.e., some 50 states or so) have imposed a wide range of sanctions on Russia, and have provided economic and military assistance to Ukraine, most states have maintained normal relations with Russia, even though they supported the General Assembly’s Resolution ES-11/1. Second, while it is clearly impossible to adopt any meaningful actions through the Security Council, NATO has not directly undertaken intervention as the United States did in the Kosovo War. Furthermore, although the UFP procedure was triggered because the General Assembly convened an Emergency Special Session, the General Assembly, in Resolution ES-11/1, did not take strong action as it had done on the occasion of the Korean War in the 1950s.Footnote ¹⁸⁵ This partly supports an argument proposed a decade ago: that what has occurred in Ukraine is a ‘proxy war’.Footnote ¹⁸⁶

There is also a growing concern that a ‘new Cold War’ will occur between China and the United States.Footnote ¹⁸⁷ This has been betokened by the fact that the United States identifies China both as the only country with the intent to reshape the international orderFootnote ¹⁸⁸ and, in particular, as a country attempting to ‘challenge American power, influence, and interests, attempting to erode American security and prosperity’.Footnote ¹⁸⁹ As a result, in 2020, the United States announced its plans to compete with China ‘through a whole-government approach and guided by a return to principled realism’.Footnote ¹⁹⁰

In this context, it is of grave concern to the Western powers that Russia and China might develop an alliance, since both are in a strategic struggle with the US-led Western powers. Currently, the two states define their relationship as a ‘comprehensive strategic partnership’.Footnote ¹⁹¹ While China has established comprehensive strategic partnerships with many other states, that between China and Russia is far more profound given their leading role in international relations, including their permanent membership on the Security Council. In recent years, the two states have issued a number of significant statements regarding their common stances on international relations and international law. On 25 June 2016, the two states released a joint declaration on international law, in which they elaborated their common stances on several crucial issues.Footnote ¹⁹² For example, they argued that any attempts of ‘regime change’ and extraterritorial application of national law violate the principle of non-intervention.Footnote ¹⁹³ They also submitted that international dispute settlement means and mechanisms should be based on consent, and used in good faith and in the spirit of cooperation (i.e., that they should not be abused).Footnote ¹⁹⁴ In addition, they suggested that the imposition of unilateral coercive measures ‘defeat[s] the objects and purposes of measures imposed by the Security Council, and undermine[s] their integrity and effectiveness’.Footnote ¹⁹⁵

In March 2021, the two issued a joint statement on global governance.Footnote ¹⁹⁶ This statement highlighted the significance of good relations among states – especially among the ‘major global powers’. It urged them ‘to strengthen mutual trust and to be in the forefront of defending international law as well as the world order based on it’.Footnote ¹⁹⁷ For this purpose, it called for dialogues ‘aimed at rapprochement of all countries, not disunion; at cooperation, not confrontation’.Footnote ¹⁹⁸ On the one hand, this statement, as Achilles Skordas observes, indicates that the two states have turned to a concerted approach to global governance, which include several other leading powers beyond the P5, and may thus please those states.Footnote ¹⁹⁹ On the other hand, because of the two states’ stance on human rights and democracy, which Skordas characterises as pro-sovereignty, he suggests that the two states seem to promote or induce an ‘authoritarian’ global governance.Footnote ²⁰⁰

Compared with these previous statements, the joint statement that China and Russia issued on 4 February 2022 – after Russia’s SMO against Ukraine – seemed to stir more caution among the Western powers.Footnote ²⁰¹ In addition to reaffirming many common positions that had already been formulated in prior documents, this statement included a sentence with distinctly Chinese characteristics: ‘Friendship between the two States has no limits, there are no “forbidden” areas of cooperation.’Footnote ²⁰² Some Western powers may have experienced this sentence as provocative, aggravating their concerns about whether the partnership between China and Russia may become an alliance. In my view, however, this diplomatic language does not mean that a substantial change to China’s foreign policy is forthcoming, including for its policy on Russia. We can look, for evidence, at the ‘Five Points’ on the SMO that China announced on 25 February 2022.Footnote ²⁰³

Many Western powers are unhappy with the ‘Five Points’ because China neither joined them in condemning the SMO nor imposed sanctions on RussiaFootnote ²⁰⁴ – but China’s position is not exceptional. As already noted, 52 UN members – including China and India – either opposed, abstained, or did not vote on General Assembly Resolution ES-11/1 condemning Russia’s SMO. More importantly, few states imposed sanctions on Russia. As a matter of fact, in its ‘Five Points’, China expressed its support for Ukraine by reaffirming its long-standing policy of respect for the sovereignty and territorial integrity of all countries, including for the purposes and principles of the UN Charter. In particular, the ‘Five Points’ explicitly stated that the position ‘applies equally to the Ukraine issue’.Footnote ²⁰⁵ China neither said the SMO was lawful nor did it provide assistance to Russia.

Nevertheless, it is also obvious that China shares stances with Russia on other issues because both states face hostility from some Western powers. For instance, in the ‘Five Points’, China argues that states should pursue a policy of ‘common, comprehensive, cooperative and sustainable security’, which is threatened by military alliances.Footnote ²⁰⁶ This statement has been made not only because China considers the Ukrainian crisis, including the SMO, largely attributable to NATO’s expansionFootnote ²⁰⁷ – an idea shared by some Western observersFootnote ²⁰⁸ – but also because NATO, which identifies China as posing systematic challenges to Euro-Atlantic security,Footnote ²⁰⁹ has encroached upon the Asia-Pacific region in recent years, thereby increasing security pressures on China. In short, given their common challenges and threats, it is unsurprising that China has deepened its comprehensive strategic partnership with Russia. However, China has not changed, and is not expected to substantially change, its long-standing foreign policy. The conception of common security and comprehensive security, under which China is always critical of military alliance, was not first stated in the ‘Five Points’; it was expounded on as early as 20 years ago.Footnote ²¹⁰

This new constellation of power has brought the Security Council into a more troubled position. Consider the role of the Security Council in the Syrian and Ukrainian crisis as examples. Seventeen draft resolutions concerning the Syrian crisis were vetoed between 2011 and 2019.Footnote ²¹¹ By contrast, while the Security Council held many meetings on the Ukrainian crisis, only one draft resolution has been co-sponsored by 42 UN members between 2014 and 2021, and it was vetoed by Russia.Footnote ²¹² This indicates that the UN members have no expectation that the Security Council can make a difference in handling the Ukrainian crisis and thus they have no intention of proposing more draft resolutions for debate. As of August 2022, the Security Council had held more than 15 meetings discussing peace and security in Ukraine arising from Russia’s SMO, but no other resolutions had been adopted other than one calling for an emergency special session of the General Assembly.Footnote ²¹³

Accordingly, actions outside the Security Council are expected to increase. Efforts aiming to end the Ukrainian crisis are undertaken outside the Security Council, such as the international sanctions on Russia imposed by individual states and the European Union without the Council’s approval. According to Van den Herik, in this volume, these unilateral sanctions ‘should not be regarded as a challenge to the UN Security Council but rather as a correction in the event of inactivity’.Footnote ²¹⁴ This position is arguably right in the unique instance of the SMO. On the one hand, Russia absolutely would not allow the Security Council to approve any actions that aim to end the SMO, which means that the Security Council can do nothing. On the other hand, while many states do not explicitly condemn the SMO, few, if any, states regard the SMO to be lawful. More importantly, the General Assembly adopted Resolution ES-11/1 identifying Russia’s aggression against Ukraine. However, we should not be blind to the possibility that these sanctions may be abused. As Van den Herik notes, some legal regimes and mechanisms at the international and domestic levels are already in place to scrutinise the enforcement of the UN sanctions, even though they are not yet perfect.Footnote ²¹⁵ Nevertheless, unilateral sanctions, as a general matter, are likely to be abused by the great powers.

D. The Security Council for International Peace – or for Peace between Only the Great Powers?

As noted in section I, Bosco thinks the Security Council has demonstrated that it is unable to effectively address threats to peace, and that the vision of maintaining international peace should therefore be abandoned and priority given to tactics that avoid military conflicts between the great powers. Bosco has observed that while, on several occasions, military conflicts occurred between the United States and the USSR, the two always managed to ‘pull back in time’, and that there have never been prolonged military clashes between permanent members of the Security Council.Footnote ²¹⁶ Not only does Bosco’s proposition run counter to the Security Council’s primary responsibility for maintaining international peace but also it dismantles the very rationale for the founding of the United Nations, which aimed to save the world from ‘the scourge of war’.Footnote ²¹⁷ In fact, it is hard to say to what extent the Security Council matters in keeping peace between the great powers. A major reason behind the great powers’ avoidance of sustained military conflict between them is that each of them has a powerful military and hence none can afford sustained or large-scale military conflict with another great power.

Nevertheless, Bosco’s heretical argument is meaningful. It is indeed necessary to improve the functionality of the Security Council – especially by finding ways of reducing the negative impact of power politics among the great powers. All of the contributors to this volume seek to achieve this purpose from different perspectives.

A. International Public Health Crisis

At time of writing, COVID-19 is one of the most significant new international threats international society has encountered. The UN Security Council was criticised for its silence in response to the threat – a silence that lasted several months after the outbreak of the pandemic.Footnote ²²¹ From April 2020 to May 2021, the Security Council held 15 meetings discussing issues related to the virus, including the implications of the pandemic for sustaining peace, equitable access to vaccines, and the cessation of hostilities.Footnote ²²² In Resolution 2532, adopted on 1 July 2020, the Security Council stated that ‘the unprecedent extent of COVID-19 pandemic is likely to endanger the maintenance of international peace and security’, and it thus demanded ‘a general and immediate cessation of hostilities in all situations’. While, in that Resolution, the Security Council did not mention any particular provisions of the UN Charter, it decided to ‘remain seized of the matter’.

COVID-19 is not the first public health issue to be brought before the Security Council. The Security Council debated the AIDS pandemic in Africa between 2000 to 2005. During that time, the United States observed that ‘[w]e tend to think of a threat to security in terms of war and peace. Yet no one can doubt that they havoc wreaked and the toll exacted by HIV/AIDS do threaten our security.’Footnote ²²³ In its view, AIDS was ‘a global aggressor’.Footnote ²²⁴ Given that the United Nations was created to stop wars, the United States suggested that ‘[n]ow we must wage and win a great and peaceful war of our time – the war against AIDS’,Footnote ²²⁵ asking, ‘[H]ow could it not be a threat to international peace and security?’Footnote ²²⁶ Clearly, in the United States’ view, the grave impact of AIDS qualified it as a ‘threat to peace’. However, the United States did not suggest what the Security Council could do to combat the threat. By contrast, the other four permanent members of the Security Council held a different position.Footnote ²²⁷ China acknowledged that AIDS ‘has not only constituted a major threat to human life and health, but seriously affected the economic development and social stability of the countries and regions concerned. Thus it has become one of the most important non-traditional security issues.’Footnote ²²⁸ However, China suggested that fighting the AIDS epidemic should be left to other ‘relevant international bodies’.Footnote ²²⁹ This does not mean, however, that China thought a public health crisis such as AIDS irrelevant to international peace. China supported the Security Council in accordance with its mandate and devoted increased attention to the issue of peacekeepers and HIV/AIDS, as well as the impact of AIDS on peace and security.Footnote ²³⁰ The United Kingdom too argued that an effective response to AIDS ‘needs the coordinating response of the United Nations bodies, including the Security Council’.Footnote ²³¹ Russia thought AIDS, generally, was an issue for other UN organs – especially the General Assembly, the Economic and Social Council, and the Secretariat.Footnote ²³² Similarly, France suggested that AIDS, as a whole, was an issue that fell outside the Security Council and landed with the Secretariat.Footnote ²³³ Ultimately, while it held many meetings, the Security Council did not adopt any resolutions on AIDS.

In short, some novel international issues are indeed relevant to international peace. Especially when they affect certain of its measures, the Security Council needs to consider taking action to prevent its mission from being disrupted by threats such as COVID-19, even if they may not constitute ‘threats to peace’ as such. The alternative, as illustrated shortly, is that such attempts may mean little and risk exacerbating disagreements between the UN members, while disrupting international efforts to address specific international matters. Based on her observations of the attitudes of some states – especially developing states – Van den Herik is also cautious about the consequences of treating matters such as public health as security issues within the reach of the Security Council.Footnote ²³⁴

Still, the possibility that threats such as COVID-19 will be identified as a ‘threat to the peace’ ought not to be totally precluded. As the debates on AIDS and COVID-19 in the Security Council suggest, there are several factors that the Security Council may consider when identifying a ‘threat to the peace’. One is whether the relevant impact is on the same level as those that have already been identified as threats to the peace. A second is whether the Security Council can take meaningful measures. As noted above, although the United States argued that AIDS should be identified as a ‘threat to the peace’, it did not explain what the Security Council – and the United States itself – could do to combat it. If what the Security Council or the United Nations can do, or promise to do, is mere rhetoric, it is meaningless to identify a threat such as COVID-19 as a ‘threat to the peace’. Arguably, doing so merely increases quarrels among the members of the Security Council. And given that the United States frequently advocates the securitising of matters such as public health, it is not unreasonable to suggest that the United States might leverage such action to pursue its own interests. A third factor of relevance is whether a threat is already addressed by other international institutions. In the case of COVID-19, for example, the World Health Organization (WHO) undoubtedly has the competence to address the pandemic and it, together with its members, has extended great efforts. As a consequence, the WHO’s leadership in this field should be respected. If the Security Council were to intervene in fighting COVID-19 by identifying it as a ‘threat to the peace’, it could undermine the leadership of the WHO and disrupt international efforts to fight the virus.

B. Extremism

Since the 1990s, terrorism has emerged as a threat that often causes devastating casualties. As a result, the UN organs, in addition to individual states, have listed counter-terrorism as a major item on their agendas again and again. On 20 September 2006, the General Assembly approved the Global Counter-Terrorism Strategy, guiding the counter-terrorism efforts of states and the UN organs.Footnote ²³⁵ More importantly, the Security Council adopted successive resolutions identifying terrorism as a ‘threat to the peace’ and authorising or requiring measures aimed to tackle terrorism.Footnote ²³⁶ Over time, however, these efforts were found to be insufficient. Many states came to recognise that the approach adopted in the 2006 Global Counter-Terrorism Strategy needed improving upon. In 2013, the General Assembly adopted Resolution 68/127, which was concerned with the broader issue of combating ‘violence and violent extremism’.Footnote ²³⁷ That Resolution does not explicitly incorporate counter-extremism into the framework of counter-terrorism, but it foreshadows this trend. Resolution 2178, adopted by the Security Council in 2014, indicates the close linkage between terrorism and extremism. That Resolution takes note of ‘terrorist acts including those motivated by intolerance or extremism’, and it recognises that ‘terrorism will not be defeated by military force, law enforcement measures, and intelligence operations alone’, underlining ‘the need to address the conditions conducive to the spread of terrorism’. It therefore calls for collective efforts, ‘including preventing radicalization, recruitment and mobilization of individuals into terrorist groups and becoming foreign terrorist fighters’.Footnote ²³⁸

From that time on, counter-extremism received more attention. As then UN Secretary-General Ban Ki-moon noted, traditional ‘security-based’ counter-terrorism measures came to be understood as insufficient in preventing the spread of violent extremism, which encompasses ‘a wider category of manifestations’.Footnote ²³⁹ Ban Ki-moon also warned of the risk that ‘a conflation of the two terms may lead to the justification of an overly broad application of counter-terrorism measures, including against forms of conduct that should not qualify as terrorist acts’.Footnote ²⁴⁰ In 2016, the General Assembly adopted Resolution 291. This Resolution acknowledged the difficulty of preventing the violent extremism conducive to terrorism.Footnote ²⁴¹ Thus it proposed a new Global Counter-Terrorism Strategy, under which the United Nations and its members were urged to ‘unite against violent extremism as and when conducive to terrorism, encourage the efforts of leaders to discuss within their communities the drivers of violent extremism conducive to terrorism and to evolve strategies to address them’, as well as to ‘take measures, pursuant to international law and while ensuring national ownership, to address all drivers of violent extremism conducive to terrorism, both internal and external, in a balanced manner’.Footnote ²⁴² For this purpose, the UN members are expected to consider, ‘in the national context’, the implementation of recommendations suggested in the Plan of Action to Prevent Violent Extremism.Footnote ²⁴³ It should be stressed that none of these UN instruments define the meaning of extremism. Furthermore, they focus only on ‘violent’ extremism. However, extremism, in the previously adopted UN resolutions, was not confined to only its ‘violent’ type. Moreover, as Van den Herik observes in this volume, there is not yet a definition of ‘violent extremism’ either.Footnote ²⁴⁴ In a nutshell, neither the General Assembly nor the Security Council has developed any meaningful rules on counter-extremism. The ambiguities around extremism may therefore become a new source for division among the members of the Security Council.

On the one hand, counter-extremism again indicates the complexity of national circumstances in the context of international peace. The tension between the Security Council’s authority to maintain the peace and the principle of non-intervention is expected to increase. On the other hand, as already noted, a state may decide the counter-extremism measure ‘in the national context’. Based on the principle of non-intervention and the New Global Counter-Terrorism Strategy, a state may be encouraged to claim the legitimacy and legality of its actions to defend particular measures that aim to combat extremism. Furthermore, given that extremism refers not only to particular acts but also to a ‘source’ conducive to terrorism, which is clearly broader in terms of content and scope, those measures aimed at combating extremism are at a high risk of misuse or abuse. This is especially true of the international obligations entered into by a state. For example, human rights obligations are susceptible to violations. Such risks have been recognised. And while stating that counter-terrorism measures, the protection of human rights, fundamental freedoms, and the rule of law ‘are not conflicting goals, but complementary and mutually reinforcing, and are an essential part of a successful effort to counter violent extremism’, Resolution 68/217 requires a state to ensure that the relevant measure complies with its obligations under international law, as well as refugee and humanitarian law.Footnote ²⁴⁵ Yet the risk of the Security Council and the UN members unduly intervening in domestic affairs may increase. Several commentators have acknowledged the uncertainties in the New Global Counter-Terrorism Strategy.Footnote ²⁴⁶ Similarly, Van den Herik suggests that there is a risk of the ‘securitisation of development and the politicisation of the humanitarian space’.Footnote ²⁴⁷

From China’s perspective, the United States, together with some other Western states, already seeks to intervene in Chinese domestic affairs by limiting China’s efforts to fight terrorism and extremism in Xinjiang, an area inhabited by Chinese Uygur Muslims. According to China, people living in Xinjiang, including the Uygur, face grave terrorist threats and extremism.Footnote ²⁴⁸ Based on a preventive approach, it has taken a wide range of measures.Footnote ²⁴⁹ China claims that these measures aim to tackle terrorism and extremism, and to protect human rights in Xinjiang. Thus it claims that they do not violate but in fact protect human rights.Footnote ²⁵⁰ Several Western states hold a totally different view of these measures. They condemn China’s government, arguing that, by enforcing the measures, commit gross violations of human rights against the UygurFootnote ²⁵¹ – some even alleging ‘genocide’.Footnote ²⁵² Several sanction laws have been adopted against ChinaFootnote ²⁵³ and, in a closed-door consultation, several Western states raised the issue of China’s counter-extremist measures before the Security Council in 2019.Footnote ²⁵⁴

I do not want to debate here what has really happened in Xinjiang; instead, I would prefer to stress two normative issues. First, given the new UN Global Counter-Terrorism Strategy,Footnote ²⁵⁵ as well as the relevant Shanghai Cooperation Organization (SCO) conventions on counter-terrorism and extremism, China has a legal basis on which to consider, in its national context, measures to tackle extremism. Second, given that international laws setting standards on how to conduct counter-extremism are not yet well developed, those measures that are asserted to contain counter-extremism are at risk of being misused or abused, thereby leading to violations of human rights of particular populations.

C. Cyber-Attacks

Cyber-security is one of most prominent issues facing the Security Council in the 21st century and it is particularly challenging to the application of the UN Charter – especially of Article 51 on self-defence. From the perspective of the UN Secretary-General, cyber warfare has become a first-order threat to international peace, but the methods of cyber warfare are not yet fully understood.Footnote ²⁵⁶ As a peace and security issue, cyber-security has been hotly debated.Footnote ²⁵⁷ There have been numerous news reports of cyber-attacks, and some member states, such as the United States and China, accuse each other of initiating cyber-attacks.Footnote ²⁵⁸ In fact, several powerful countries have established cyber forces, for example the United States’ Cyber Command, established in 2010. China, too, has included the topic of strengthening its capability in cyberspace in its military strategy.Footnote ²⁵⁹ In its view, some countries are ‘strengthening a cyber deterrence strategy, aggravating an arms race in cyberspace, and bringing new challenges to global peace’.Footnote ²⁶⁰

At the core of cyber-security concerns is the debate about whether cyber-attacks constitute an ‘armed attack’, as provided for in Article 51 UN Charter. By referring to the ICJ’s decision in The Legality of the Threat or Use of Nuclear Weapons, in which the Court opined that the right of self-defence does not depend on the type of weapon used in an attack,Footnote ²⁶¹ some commentators have suggested that, despite their novelty and specific character, cyber-attacks could be identified as armed attacks and thus trigger the right of self-defence.Footnote ²⁶²

The United States is a major advocate of the right to self-defence against cyber-attacks. It argues that, ‘consistent with the United Nations Charter’, states ‘have an inherent right to self-defense that may be triggered by certain aggressive acts in cyberspace’.Footnote ²⁶³ The United States has worked with NATO partners to develop means and methods of collective self-defence in cyberspace.Footnote ²⁶⁴ By contrast, China’s position appears a bit ambivalent. Illustrated below are some of the debates that have occurred within the UN Group of Governmental Experts (UNGGE) on information technology.

On the one hand, China opposes the United States’ argument for directly referring to the right of self-defence towards cyber-attacks; on the other hand, it supports the application of the UN Charter in cyberspace. China especially highlights the principles of sovereignty and the peaceful settlement of disputes.Footnote ²⁶⁵ Clearly, there is some contradiction in China’s policy, in that while China intentionally avoids directly referring to the right of self-defence, it does not openly preclude the application of Article 51 UN Charter in cyberspace. There might be two explanations why. First, China’s cyber capability is perhaps not yet comparable with that of the United States and hence China may be afraid of potential cyber-attacks from the United States under the guise of self-defence. Second, open agreement on the application of Article 51 in cyberspace increases the risk that prominent cyber actors may abuse this provision. It remains to be seen how long China will maintain such ambiguous gestures, and how it will frame a clearer position on the relationship between the right of self-defence and cyber-attacks.

One interesting proposition was made on 24 October 2020, when several Chinese academic institutions and think tanks jointly issued the report, Sovereignty in Cyberspace: Theory and Practice (version 2.0).Footnote ²⁶⁶ The report suggests that sovereignty in cyberspace includes the rights of independence, equality, jurisdiction, and ‘cyber-defence’.Footnote ²⁶⁷ The right of cyber-defence, according to the report, means that each state has the right to ‘conduct capacity building on cyber security and adopt lawful and reasonable measures under the framework of the UN Charter to protect its legitimate rights and interests in cyberspace from external infringement’.Footnote ²⁶⁸ The report refers to Article 51 UN Charter, but it intentionally uses the term ‘cyber-defence’ instead of ‘self-defence’. Arguably, the report is cautious in justifying the use of force to combat cyber-attacks. It seems that China’s cyber authority, the Cyberspace Administration of China, is sympathetic with the report,Footnote ²⁶⁹ even though it does not yet explicitly endorse it. This includes the Chinese use of the term ‘cyber-defence’.

In the General Assembly, cyber-security has been a hot topic in international peace. Adopted in 2011, Resolution 66/24 required that a group of government experts be established to study threats in the sphere of information security and possible measures to address them, which included ‘norms, rules or principles of responsible behaviour of States’.Footnote ²⁷⁰ The UN Group of Governmental Experts on Developments in the Field of Information and Telecommunications (ITC) in the Context of International Security was duly appointed in 2012. The Group completed its first report in 2013, suggesting that international law – ‘in particular, the UN Charter’ – should be applicable in cyberspace, which is ‘essential to maintaining peace and stability and promoting an open, secure, peaceful and accessible ITC environment’.Footnote ²⁷¹ According to the Group’s second report of 2015, states, in their use of ITC, ‘must observe, among other principles of international law, state sovereignty, sovereign equality, the settlement of disputes by peaceful means and non-intervention in the internal affairs of other States’.Footnote ²⁷² In addition, the Group suggested, given the unique attributes of ITC, ‘new norms’ could be developed.Footnote ²⁷³ Clearly, whether cyber-attacks can trigger the right of self-defence is a crucial issue in the Group’s deliberations. Because of strong opposition from China and some other countries, however, the 2015 report merely ‘noted’ the inherent right of states to take measures consistent with international law and as recognised in the UN Charter.Footnote ²⁷⁴ It did not explicitly refer to the right of self-defence; rather, it suggested that ‘further study on this matter’ was needed.Footnote ²⁷⁵

The United States’ attempt to reach a consensus on the right of self-defence within the Group failed again at its 2017 meeting.Footnote ²⁷⁶ To make debates on cyber-security ‘more democratic, inclusive and transparent’, the General Assembly adopted – upon Russian initiative – Resolution 73/27 to establish an Open-Ended Working Group (OEWG).Footnote ²⁷⁷ In 2021, the duly convened OEWG submitted its first substantive report to the General Assembly.Footnote ²⁷⁸ While affirming international law – especially the UN Charter – to be applicable in maintaining peace and security, and promoting an open, secure, stable, accessible, and peaceful ITC,Footnote ²⁷⁹ the report said nothing about the application of Chapter VII. It instead urged states to seek the settlement of disputes with peaceful means.Footnote ²⁸⁰ It comes as no surprise that China was happy with this report.Footnote ²⁸¹ The United States, which voted against Resolution 73/27, was frustrated. From its perspective, the OEWG, while identifying some state obligations, had failed to mention that states may respond to unlawful actions consistent with the right of self-defence.Footnote ²⁸² The United States therefore labelled the report ‘not perfect’.Footnote ²⁸³

In contrast with the General Assembly, the Security Council remains inactive in this field, even though the Secretary-General urged it to find ways of dealing with cyber warfare as soon as possible.Footnote ²⁸⁴ In 2020, the Security Council held an informal meeting concerning the protection of civilians and humanitarian efforts related to cyber-attacks on critical infrastructure during the COVID-19 pandemic.Footnote ²⁸⁵ This was, perhaps, the sole occasion on which the Security Council has addressed cyber-attacks, but the topic of the meeting had nothing to do with international peace. Van den Herik argues, in this volume, that the inaction of the Security Council on cyber-security can be attributed to the P5, who are the most prominent cyber actors.Footnote ²⁸⁶ This explanation is reasonable. As already noted, the P5 – or, at least, the United States and China – tend to consider Chapter VII applicable to cyber-attacks. Cyber-security, including cyber warfare, will therefore be tabled in the Security Council sooner or later.

Arising from technology, cyber-attacks represent a unique threat to peace. New technologies bring with them huge benefits, but they may cause tremendous threats to international peace. Compared with threats arising from other technologies, cyber-attacks reveal an unpredictable dimension of technology. If we say that nuclear weapons astonish people with their horribly destructive effects, we can say that cyber-attacks beset people with their high degree of uncertainty. It is often difficult to locate where cyber-attacks have been initiated, and by whom. Even worse, it is often hard to verify whether they have done damage.Footnote ²⁸⁷ There is an established presumption that any legal determination should be fact-based, but it seems that such presumption does not apply in the context of cyber-attacks. As a result, legal determination and action in the face of alleged cyber-attacks might not have a solid factual basis, and there is a high risk that their origin may be misidentified. In this unique context, in the absence of trust between the major cyber actors, including the United States and China, it is impossible to effectively address the issue of cyber-attacks inside or outside of the Security Council.

A. A General Observation

Socialist China’s presence in the United Nations was cause for global concern from the very outset. Would it disrupt the Security Council by exercising the veto power in the same way the USSR did?Footnote ²⁹⁷ In the subsequent three decades or so, China demonstrated instead that it was a team player – a ‘silent power’.Footnote ²⁹⁸

Between 1971 and 1979, China cast 130 affirmative votes out of a possible 195, in comparison to 149, 166, 172, and 163 by the United States, the USSR, France, and the United Kingdom, respectively. China exercised the veto power only twice – far less than the 18, 7, 7, and 12 instances on which the United States, the USSR, France, and the United Kingdom, respectively, did so. By contrast, China abstained or did not participate in voting on 63 occasions, which was in sharp contrast with the 28, 22, 16, and 20 abstentions by the United States, the USSR, France, and the United Kingdom, respectively.Footnote ²⁹⁹

Two major factors influenced China’s voting pattern. First, Chinese diplomats were not well acquainted with the Security Council in their early years of membership. Qiao Guanhua, China’s first ambassador to the United Nations, admitted: ‘To tell the truth, we’re quite unfamiliar with this institution. We need to honestly study and become familiar as soon as possible, so that China can carry out its duties as permanent member of the Security Council.’Footnote ³⁰⁰ Chairman Mao Zedong, in a meeting with Chinese diplomats on the eve of their departure to New York, required each to assume the attitudes of a ‘student’ and to avoid ‘rushing into battle unprepared’.Footnote ³⁰¹ As a consequence, Chinese diplomats did not speak much in the Security Council. Second, as a socialist country, China distanced itself from the Western states. As a result, China’s voting affinity with the United States during this period was only 46 per cent.Footnote ³⁰² Nevertheless, it was observed that Chinese diplomats gave respect to other countries. They did not use provocative language nor did they sponsor any propaganda-induced proposals, like the USSR did. According to Samuel S. Kim, Chinese diplomats behaved ‘more like a workhorse than a showhorse’.Footnote ³⁰³

In the 1980s, China became more willing to involve itself in the workings of the Security Council. Out of a total 209, China cast 196 affirmative votes – second only to those of France (200) and more than those of the United States (162), the USSR (192), and the United Kingdom (189). All of China’s votes from September 1983 on were affirmative. Specifically, China’s abstentions or non-participation in voting dropped significantly to only 13 – less than those of the United States (27), the USSR (22), and the United Kingdom (14), and more only than those of France (5). China was the only permanent member of the Security Council that did not use the veto power throughout the 1980s. In addition, China’s voting affinity with the United States grew, during this time, to 73 per cent.Footnote ³⁰⁴

These developments were mainly induced by China’s new foreign policy. In the late 1970s, China commenced its Reforming and Opening Up Policy, a key aim of which was to develop trading relations with and to attract investment from Western states. Thus it sought to improve relations with Western states both outside and inside the Security Council. Deng Xiaoping, the ‘chief designer of the Reforming and Opening-up policy’, set the tone for the Chinese foreign policy of ‘keeping a low profile’ in international relations. While, in the 1980s, some developing states expected China to act as ‘a leader of the Third World’, Deng clearly stated that China could not ‘qualify as the leader in that we are not powerful enough to do that’.Footnote ³⁰⁵ According to Deng, China should insist on a fundamental national policy. It should not take on a leadership role – although this did not mean that China should do nothing to promote a fair international political and economic order.Footnote ³⁰⁶ In fact, given that Chinese diplomats became more familiar with the workings of the Security Council over time, China participated much more in voting and abstained much less frequently than before.

During the 1990s, China’s rate of affirmative voting was 93.1 per cent – the lowest among the P5, the rates of which were 98.9 per cent, 96.4 per cent, 99.7 per cent, and 100 per cent for the United States, the USSR/Russia, France, and the United Kingdom, respectively. China continued its highly self-constrained approach to the veto power and blocked only two resolutions.Footnote ³⁰⁷ Nevertheless, China’s abstention pattern was noticeably revived in the 1990s: it abstained on 42 occasions – three times as many as it had done so in the 1980s.Footnote ³⁰⁸ It should be stressed that a large portion of these abstentions were cast on sanctions-related resolutionsFootnote ³⁰⁹ – the most innovative practice of the Security Council in the 1990s. Western powers introduced new causes for triggering sanctions and included new contents in the sanctions, which had significant normative impacts.Footnote ³¹⁰ China, like many other states, was concerned with whether those sanctions were consistent with the UN Charter – especially with Chapter VII.Footnote ³¹¹ While China was reluctant to offend the Western powers by exercising the veto power, it did not explicitly endorse the relevant sanctions. This explains why China, after casting abstention votes on the sanctions-related resolutions, often gave explanations for its voting.Footnote ³¹² In addition, China’s voting affinity with the United States jumped up to 92.1 per cent from 73 per cent in the previous decade.Footnote ³¹³

Generally speaking, China sustained the same voting pattern in the first ten years of the 21st century. It cast 622 affirmative votes out of a total of 636, while exercising only the veto power twice. Importantly, China became more open to UN sanctions, leading to a considerable decrease in its abstentions.Footnote ³¹⁴ Moreover, during this period, China’s voting affinity with the United States rose to a new high of 95.3 per cent.Footnote ³¹⁵

Since the 2010s, however, China’s behaviour in the Security Council has begun to make many Western states and observers unhappy. The most conspicuous change has been its increased use of the veto power. In the 2010s, China vetoed nine draft resolutions authorising sanctions and other coercive measures – far more than those in any previous period. Among those were eight vetoes cast on resolutions against Syria.Footnote ³¹⁶ China’s vetoes of resolutions relating to Syria enraged some Security Council members – especially those from the West. They blamed China, together with Russia, for the Security Council’s repeated failure to address the humanitarian disaster in Syria. After Russia and China blocked Resolution 538,Footnote ³¹⁷ for example, the UK representative condemned them: ‘for the third time’, they had blocked an attempt by the majority of the Security Council – supported by most states – to try a new approach, choosing instead ‘to put their national interests ahead of the lives of millions of Syrians’.Footnote ³¹⁸ He argued that the voting of Russia and China served to protect a brutal regime. The US representative expressed a similar position.Footnote ³¹⁹ China firmly denied such accusations and affirmed that it upheld the UN Charter. Specifically, China emphasised that it had ‘no self-interest’ in addressing the Syrian crisis.Footnote ³²⁰ It argued further that the current situation in Syria was ‘precisely the result of the wrongful conduct of some countries, and it is those countries that should reflect on their behaviour’.Footnote ³²¹

China has also significantly increased its financial and personnel contributions to the work of the Security Council. During 2010–12, China’s contribution to UN peacekeeping operations amounted to 3.189 per cent of the total peacekeeping budget – far less than that of the United Kingdom (6.604 per cent) and France (6.623 per cent).Footnote ³²² However, during 2019–21, China became the second largest contributor to the regular budget of UN peacekeeping operations, next to only the United States. During this period, the rate of assessment for China reached over 12 per cent – far more than the United Kingdom (4.567 per cent) and France (4.427 per cent).Footnote ³²³ In 2016, China established the China–UN Peace and Development Fund, contributing US$1 billion to it in the ten years that would follow. In 2015, China decided to join the UN Peacekeeping Capability Readiness System and, for this purpose, built a standby peacekeeping force of 8,000 troops. China was also the largest source country for peacekeeping forces among the P5. By December 2018, China had participated in 24 UN peacekeeping operations and dispatched more than 39,000 troops.Footnote ³²⁴

B. How the New Power Constellation Influences China’s Behaviour in the Security Council

As illustrated by section IV, great powers may adjust their policy of international peace in the Security Council in light of the power shift.

From the perspective of power politics – with special reference to the growing state power of China and the accelerating hostilities of some Western powers – Resolution 1973 against Libya perhaps represents a turning point in China’s Security Council voting. The Resolution strengthened the sanctions that had previously been approved in Resolution 1970.Footnote ³²⁵ The new Resolution explicitly established a ‘no-fly zone’.Footnote ³²⁶ It also allowed UN members to take ‘all necessary measures’ to protect civilians.Footnote ³²⁷ Conscious of the high levels of uncertainty implicit in that provision, several Security Council members, including China, Germany, Brazil, India, and Russia, abstained from voting on the Resolution.Footnote ³²⁸ According to China, they and several other countries had raised serious concerns, but ‘unfortunately, many of those questions failed to be clarified or answered’, and therefore China had ‘serious difficulty with parts of the resolution’.Footnote ³²⁹ Notwithstanding this, given the grave circumstances in Libya and especially the supportive position of the Arab League on the ‘no-fly zone’ provision,Footnote ³³⁰ China cast its vote in abstention on Resolution 1973. Similarly, Germany ‘decided not to support a military option, as foreseen in paragraphs 4 and 8 of the resolution’, and therefore abstained from voting on the draft resolution.Footnote ³³¹ Obviously, at least five Security Council members did not support the military attacks authorised under Resolution 1973.

Two days after the adoption of Resolution 1973, however, a multi-state, NATO-led coalition launched airstrikes against Libya with the asserted aim of enforcing Resolution 1973. Given the provision for ‘all necessary measures’ in the Resolution, the military intervention was justified. During a Security Council meeting, China stated that the ‘original intention’ of Resolutions 1973 and 1970 ‘was to put an end to violence and to protect civilians’, and it claimed that NATO had wilfully interpreted the two resolutions to justify its military actions.Footnote ³³² Clearly, the literal provision of Resolution 1973 should prevail over the ‘original intention’, as understood by China, and hence Sun suggests that China’s acquiescence to Resolution 1973 was ‘a complete loss’.Footnote ³³³

Arguably, China has learned two lessons from Resolution 1973. First, the Western great powers still paid little regard to its concerns and interests, even though China had never been more powerful. China had huge economic interests in Libya.Footnote ³³⁴ It was also reported that the Chinese government evacuated more than 30,000 Chinese citizens from Libya and that Chinese companies incurred more than US$20 billion in losses. Second, China learned not to leave any loopholes in the relevant Security Council resolutions that some Western powers could use to justify their interventions. In short, the enforcement of Resolution 1973 made China realise that it needed to take a tougher stance on the Security Council. China’s experience concerning Libya had a direct impact on its behaviour regarding Syria.Footnote ³³⁵

It may therefore come as no surprise that China has repeatedly exercised the veto power on draft resolutions relating to the situation in Syria, where Russia has strategic interests but China has no substantial interests. China maintains a high affinity for voting with Russia, with one exception when China cast an abstention.Footnote ³³⁶ China, together with Russia, exercised the veto power on another eight resolutions. In particular, China vetoed draft Resolutions 348Footnote ³³⁷ and 172,Footnote ³³⁸ on Syria – resolutions co-sponsored by 65 and 45 states, respectively. This had never happened in the history of China’s Security Council votes. While this radical turn reflected China’s thinking that legal loopholes should no longer be left open to the Western powers, as had been the case with Resolution 1973 on Libya,Footnote ³³⁹ it is reasonable to assume that growing hostilities from the Western world prompted China and Russia to support each other both outside and inside of the Security Council.

As has been noted, in its disabling of the Security Council, some Western states considered China an accomplice of Russia in the Syrian crisis. We should bear in mind, however, that those resolutions would undoubtedly have been vetoed by Russia whether or not China supported them. Furthermore, there is another angle from which to view China’s more aggressive behaviour on the Security Council. While, in the era of the ‘New World Order’, Western powers rarely found the initiatives they favoured challenged in the Security Council, some of them were legally controversial or did not work as expected in practice.Footnote ³⁴⁰ It is therefore not totally unsound to say that a more aggressive China might prevent the Security Council from being dominated by Western hegemony.

Additionally, a more powerful China might enable the Security Council in a unique way. Consider how China engaged in the Darfur crisis. In Resolution 1706, the Security Council ‘invited’ Sudan to give the United Nations consent to deploy a peacekeeping forceFootnote ³⁴¹ and China abstained in the voting. China supported the idea of a UN peacekeeping deployment, but the push for adoption of a Security Council resolution, in China’s view, ‘would not contribute to the smooth implementation of the resolution nor help to stop further deterioration of the situation in Darfur’.Footnote ³⁴² After Sudan’s government expressed opposition to the ‘invitation’ extended by Resolution 1706, the United States and several other Western states imposed economic sanctions on Sudan – sanctions that made no difference. Western powers then urged China – Sudan’s largest economic partner – to encourage Sudan to comply with Resolution 1706. It was reported that, to persuade Sudan to accept the UN’s peacekeeping mission, China threatened to remove its preferred trade status and to discourage Chinese companies from investing in Sudan.Footnote ³⁴³ Sudan accepted the peacekeeping deployment. Since China has maintained close economic relationships with other states who are plagued by national disorders, it may be better positioned than Western powers to enhance the measures adopted by the Security Council when relevant situations in these states are identified as threats to the peace. Indeed, Maluwa has suggested, in this volume, that China’s economic and ideological affinity with many African states has been helpful to the maintenance of peace in Africa.Footnote ³⁴⁴ However, it remains to be seen to what extent that this unique leverage might be sacrificed to the growing hostilities between China and several Western powers.

C. How Chinese International Legal Policies Influence China’s Security Council Behaviour

How China engages with the Security Council largely depends on Chinese international legal policies. Since I have examined in depth the evolution of Chinese international legal policies elsewhere,Footnote ³⁴⁵ here I will focus on how they influence China’s behaviour in the Security Council setting.

D. China’s Normative Role in the Security Council

Western states and observers have been concerned about the potential normative impact a more powerful and aggressive China may bring to the workings of the Security Council. Generally speaking, they consider China’s normative role to be negative. However, such one-sided thinking is not helpful in accurately demonstrating what role China plays in the Security Council and in the maintenance of international peace. As a matter of fact, China’s normative role in the Security Council has diverse dimensions: as norm-defender, as norm-taker, as norm ‘antipreneur’, and as norm entrepreneur.

A. The Universal Approach

The universal approach characterises not only the primacy of the Security Council but also the privileges of the great powers. It has been observed that legal proposals are grouped into those aiming to reduce the privileges of the great powers (Group I proposals) and those aiming to improve the workings of the Security Council (Group II proposals).

B. The Regional Approach

In considering the framework for international peace after World War II, US President Franklin D. Roosevelt initially preferred the regional approach, with no universal organ with great authority.Footnote ⁴⁶⁴ This was partly because there were developed security mechanisms on the American continent. By contrast, then Secretary of State Cordell Hull was a firm advocate of the universal approach. Hull argued that the universal approach would do away with the ‘need for sphere of influence, for alliances, for balance of power, or any other special arrangements’.Footnote ⁴⁶⁵ He eventually changed Roosevelt’s mind. British Prime Minister Winston Churchill was also a firm advocate of the regional approach, warning that:

Geopolitical calculations are implicit in the United States’ universal approach and the United Kingdom’s regional approach. In addition to a high expectation for unity among the great powers,Footnote ⁴⁶⁷ the United States’ position as the most powerful state in the 1940s was perhaps a more important factor in leading Roosevelt to change his mind. In other words, it was clear that a universal approach would help the United States to exert its influence. In fact, the UN Charter was ‘a 90% American creation’.Footnote ⁴⁶⁸ By contrast, the United Kingdom, which no longer maintained a hegemony as it had in the 19th century, found itself less likely to attain leadership in the United Nations. To some extent, this explains Churchill’s negative attitude towards the universal approach.

While the universal approach supported by the United States finally prevailed at the San Francisco Conference, the UN Charter included a separate chapter of regional arrangements – namely, Chapter VIII. The relationship between the Security Council and the regional arrangements was, however, not yet fully defined.Footnote ⁴⁶⁹ Over time, the regional arrangements developed some practices that divided the Security Council. Some of them did not have the prior approval of the Security Council, as required by Article 53(1), but were nevertheless gradually accepted.Footnote ⁴⁷⁰

After the end of the Cold War, the regional approach became more important – especially in Africa. This is largely because, as the Cold War ended, Africa no longer held any strategic interest for the great powers; their interest in maintaining the peace in Africa declined – one reason why the great powers, together with the United Nations, did nothing to stop the genocide in Rwanda. By contrast, in the 2010s, geopolitical considerations influenced policies towards Syria in the opposite direction. Unlike the instance of their inaction in the Rwanda genocide, the Western great powers and Russia spared no effort in their struggle with each other in Syria, because Syria is an ‘Archimedean point’ of geopolitics in the Middle East. Yet the results of inaction and action were the same: the Security Council failed to stop both humanitarian disasters.

In this context, it is timely to examine – as Maluwa does in his chapter in this volume –how the Security Council and the African Union developed a partnership. A stronger African Union makes the African countries less susceptible to struggles between the great powers in the Security Council. This is particularly significant because such struggles between the great powers have again intensified.

Maluwa evidently supports the African Union’s policy of respect for the primacy of the Security Council and regards this policy to be favourable for the maintenance of international peace. In support of this, Maluwa submits two major arguments. First, regional organisations, generally speaking, are not so much a challenge to the authority of the Security Council but a complement to it. Second, regional organisations increase the voice of the periphery, which is less represented in the Security Council.Footnote ⁴⁷¹ This is true of the African Union. Furthermore, I want to stress that regional organisations are better positioned to develop innovative practices than the Security Council, which is often disabled by the struggles between the great powers. Such practices, over time, are likely to be supported by a large number of states and, eventually, to be accepted by the Security Council.

Maluwa does not, however, mention the negative impact of regional organisations, as evidenced by the NATO interventions in the FRY and Libya, among others, which have significantly damaged the primacy of the Security Council. Such negative impacts should not be ignored. In other words, whether the regional approach works well depends on whether the relevant regional organisations comply with the UN Charter and international law.

Furthermore, according to Maluwa’s examination, the African Union does not live up to the expectations of many people in the maintenance of peace in the African continent. A major reason is that the African Union does not have sufficient institutional capability. This seems to be a common difficulty that many other regional organisations face. As a consequence, few regional organisations can play a leading role in the maintenance of peace from where they sit.Footnote ⁴⁷² Unfortunately, Maluwa does not discuss whether and how the African Union might strengthen its institutional capabilities.

Generally speaking, China is in support of regional organisations playing a larger part in the maintenance of international peace. Specifically, China attaches importance to building their capability. For instance, in 2015, China decided to provide a total of US$100 million of free military assistance to the African Union for the establishment of the African Standby Force and the African Capacity for Immediate Response to Crisis.Footnote ⁴⁷³ On 8 August 2022, China convened a Security Council meeting to discuss the building of sustainable peace in Africa. A major purpose of the meeting was to explore how the United Nations might help to build the capability of the African Union.Footnote ⁴⁷⁴

The regional approach also allows China to take a more flexible stance towards proposed actions within the Security Council. Maluwa rightly suggests that the move away from the principle of non-interference, enshrined in Article III(2) of the Organisation of African Unity (OAU) Charter, to the principle of non-indifference, provided for in Article 4(h) of the AU Constitutive Act, allows China to engage in African affairs more flexibly.Footnote ⁴⁷⁵

In this regard, let us examine China’s voting in relation to the Haiti crisis in 1993. During the debates on how the Security Council dealt with this matter – whereby the democratically elected government was overthrown by a military coup – China insisted that what happened in Haiti ‘is essentially a matter which falls within the internal affairs of that country, and therefore should be dealt with by the Haitian people themselves’.Footnote ⁴⁷⁶ Yet China cast a supportive vote on Resolution 841, imposing sanctions on Haiti.Footnote ⁴⁷⁷ In explaining its voting, China’s representative stressed that:

In other words, in China’s view, regime change in Haiti was essentially an internal affair.

Nevertheless, China’s representative continued:

Clearly, the previous actions of the Organization of American States (OAS), together with relevant requests from other countries in the region, made China deviate from its principled stance and support the adoption of the Resolution, even though such action did not mean China’s basic policy had changed. In other words, the OAS’s action justified China’s voting. Had the OAS not taken that action, then China would likely not have cast its affirmative vote.

Importantly, Resolution 841 took note of the OAS’s previous sanctions. While it stated that the Security Council must act in accordance with Chapter VII UN Charter, Resolution 841 included an interesting sentence: it stressed that the Security Council sanctions were consistent with the trade embargo recommended by the OAS and had regard for the view of the OAS’s Secretary-General.Footnote ⁴⁸⁰