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«Upholding the Australian Constitution Volume Seventeen Proceedings of the Seventeenth Conference of The Samuel Griffith Society Greenmount Beach Resort, ...»

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Only the Security Council has the authority to make binding decisions that all United Nations members m u s t carry out, while the Assembly and o t h e r Councils are empowered merely to make recommendations. 22 For the binding decisions of the Security Council to have procedural legitimacy or constitutionality, they need to conform to procedures set out in the Charter. Yet the history of Security Council decision-making is coloured by d e p a r t u r e s f r o m i t s c o n s t i t u t i o n a l procedures. Article 27 provides t h a t each member of t h e Security Council shall have one vote, and that decisions on substantive m a t t e r s shall be made by affirmative vote of nine of the fifteen members, including t h e concurring votes of the five permanent members. Nevertheless, the p r a c t i c e of adopting substantive decisions despite abstentions ( i n s t e a d of concurring a f f i r m a t i v e votes) of permanent members of t h e S e c u r i t y Council h a s become regular.

The General Assembly also d e p a r t s readily from other c o n s t i t u t i o n a l c o n s t r a i n t s. Article 12 provides that the General Assembly shall not make any r e c o m m e n d a t i o n w i t h r e g a r d t o a d i s p u t e or a peace and security s i t u a t i o n t h a t t h e S e c u r i t y Council is currently engaged by, unless the Security Council requests i t to. Yet, the General Assembly commonly adopts such recommendations.

Delivery of procedural justice is not assisted by the parlous relationship of t h e S e c u r i t y Council and General Assembly to the j u d i c i a l a r m of the United N a t i o n s. T h e C o u r t ’ s d e c i s i o n s i n d i c a t e t h a t t h e m a j o r i t y o f i t s j u d i c i a r y have considered it to be subordinate to both the General Assembly and t h e S e c u r i t y Council, 23 despite occasional rhetoric concerning judicial independence. Thus, the Court does not address i t s e l f t o scrutiny of t h e c o n s t i t u t i o n a l i t y of decisions taken by either body.

These cursory observations of United Nations decision-making procedures identify s i g n i f i c a n t shortcomings in procedural legitimacy t h a t are common under its own constitutional processes. It does not have a robust separation of j u d i c i a l powers, and i t s f u n d a m e n t a l c o n s t i t u t i o n a l procedures for decisionmaking are not adhered to. Thus, not all international laws made by the United Nations enjoy procedural legitimacy.

To assess the legitimacy of United Nations decisions it is also necessary to consider whether they are substantively j u s t, by examining the d e m o c r a t i c q u a l i t i e s of i t s decision-making processes. Are they adequately designed a n d employed to identify and conform to t h e m o r a l, s o c i a l, e c o n o m i c a n d c u l t u r a l values of those persons they address?

The m a j o r players d r a f t i n g the United Nations C h a r t e r designed m o s t decision-making procedures premised on the notion that all States are sovereign equals. Accordingly, all members of the United Nations General Assembly and two of its Councils have equal voting rights. Of course, this design is not inherently d e m o c r a t i c. China and India, with over a t h i r d of the world’s population ( 2 billion people), each have one vote, in common with Nauru (12,000 people).

Nor is there any procedural requirement that a state’s vote conform to the values of its populace as identified by d e m o c r a t i c polls. India is a reasonably functional democracy while China is not, yet there is no distinction between the votes t h a t each exercises in these organs. Thus, the “one size f i t s a l l ” institutional decision-making processes are designed too poorly to be able t o reflect the moral, social, economic and c u l t u r a l values of “the peoples of t h e United Nations” that the Assembly and Councils purport to serve.

Even a decision-making process t h a t a c t u a l l y was based principally on i n d i c a t o r s o f d e m o c r a t i c q u a l i t y m i g h t need to be f o r m u l a t e d to a d d i t i o n a l l y reflect inherent differences in state interests in particular subject matters. For e x a m p l e, a U n i t e d N a t i o n s i n s t i t u t i o n a d o p t i n g i n t e r n a t i o n a l laws concerning polar region management m i g h t better f o r m u l a t e i t s decision-making procedures to give s p e c i a l w e i g h t t o t h e a f f e c t e d interests of polar countries.

Weighting mechanisms in the decision-making procedure could include extra or chambered votes, vetos or monopoly over initiatives. Global decision-making on many other subjects – health, environment, human rights, fiscal, etc – could be distributed as votes weighted by relevant indicators, such as population, human development, economy, geography, natural resources, etc.

In summary, in our time of micro- and failed States, and of middle, great and super-power S t a t e s, i t is f a n t a s y to believe t h a t all 191 United N a t i o n s Member S t a t e s m u s t have identical voting weights and procedural s t a t u s.

Recommendations of organs based on equal votes often reflect the b i z a r r e unreality of this legal fiction. The minority of truly capable and powerful States can be d i c t a t e d to by overwhelming numbers of s m a l l S t a t e s who lack t h e capacity to act on their own recommendations.

The chasm between notional equality and actual capacity was recognised by t h e d r a f t e r s o f t h e C h a r t e r in one respect. Recommendations and decisions in the UN Security Council were subjected to permanent veto rights allocated only to the then five Great Powers (China, France, USSR, UK, USA), who f o r m e d t h e majority of its then nine members. The remaining four Security Council members were elected by the General Assembly for biennial t e r m s. T o r e f l e c t t h e b r o a d e r membership of the United Nations in the wake of decolonisation, the number of non-permanent members was increased from four to ten by means of a C h a r t e r amendment in 1965. 24 The ten non-permanent members are now elected on a geographically representative basis, in a c c o r d a n c e w i t h t h e r e g i o n a l i s a t i o n of U n i t e d N a t i o n s membership into five geographic blocs formalised in 1968. 25 S i n c e t h e d r a f t i n g o f the Charter, the powers of Brazil, Germany, India and Japan have risen, while China and the USA h a v e r i s e n f u r t h e r and t h e U S S R, t h e U K a n d France have declined in relative economic, military and technological resources.

As discussed below, models for f u r t h e r expansion of Security Council m e m b e r s h i p t o 25 are now proposed by the United Nations Secretary-General.

However, any amendment of the Charter can come into force only on ratification by all five current permanent members, 26 who are unlikely to agree t o significantly dilute t h e i r own procedural r i g h t s. Thus, the p a t t e r n of power from a passing moment in history h a s been frozen into present and f u t u r e Security Council decision-making. I t is not democratically representative or reflective of special interests.

Finally, do United Nations decisions follow liberal principles comparable to those t h a t a l i b e r a l d e m o c r a t i c s t a t e s h o u l d a d h e r e t o ? L i b e r a l i s m h a s many disputed meanings, but included among its core principles are adherence to the rule of law and equal t r e a t m e n t before t h e l a w. These principles a r e s t r o n g l y promoted in United Nations human rights instruments and statements. Yet they frequently do not find their way into United Nations practice.

Concerning the rule of law, some i n s t i t u t i o n a l d e p a r t u r e s f r o m constitutional procedures were noted above, but other substantive examples are abundant. Concerning equal t r e a t m e n t of s t a t e s in United Nations law, notorious d e p a r t u r e s are legion. The General Assembly cannot agree on a comprehensive condemnation of t e r r o r i s m because many members s u p p o r t t e r r o r i s m a g a i n s t I s r a e l. T h e S e c u r i t y C o u n c i l f a i l e d t o a c t w h e n i t could have prevented genocide in Rwanda, although it did act in the former Yugoslavia. The Commission on Human Rights has engineered its own demise for its denials of equal treatment for states to which it applies human rights norms. Examples include its current reluctance to condemn genocide in Sudan. The malfeasance of the Commission and its sub-commissions, treaty committees and rapporteurs in a p p l y i n g h u m a n r i g h t s l a w s t o all equally, l e a d s t o the inexorable conclusion that liberal principles at the heart of the human rights project are not applied by the United Nations itself.

E x a m i n a t i o n of the liberal and d e m o c r a t i c q u a l i t i e s of United N a t i o n s decision-making f o r m a t i v e of i t s legal norms is an unhappy process. I t i s a p p a r e n t t h a t f o r m a l decision-making procedures are not adhered to, t h a t decision-making procedures employed are poorly designed to produce democratic quality, and t h a t basic liberal principles are often flouted. United N a t i o n s c o n s t i t u t i o n a l processes are therefore inadequate to give i t s laws g r e a t e r l e g i t i m a c y t h a n t h e n a t i o n a l l a w s o f a l i b e r a l d e m o c r a t i c S t a t e, i n the absence of t h a t S t a t e ’ s consent to the specific i n t e r n a t i o n a l law. The f a m i l i a r observation that, although the United Nations is flawed, “if we didn’t have it, we would have to invent it”, tritely avoids considering whether we might invent

better international legal decision-making processes.

Enhancing constitutional legitimacy P r e s u m i n g t h a t g l o b a l i s a t i o n c o n t i n u e s to require an increasing range, d e p t h and complexity in i n t e r n a t i o n a l legal cooperation and coordination, new i n t e r n a t i o n a l legal decision-making processes are s t i l l sorely needed. The precondition of a state’s sovereign consent being directly addressed to each new l e g a l d e c i s i o n, i n o r d e r t h a t i t b i n d t h e s t a t e, c u r r e n t l y i n h i b i t s t h e d e l i v e r y of the required legal standards (much as the prerequisite that each attendee at t h i s conference m u s t a g r e e to the menu of a common meal would i n h i b i t t h e rapid delivery of the meal). Therefore, alternatives to specific consent need to be developed to streamline processes for adopting international legal decisions and, to be l e g i t i m a t e, they need to be premised on c o n s t i t u t i o n a l procedures delivering democratic justice.

There a p p e a r t o be three ways forward. One is a p r o g r a m t o r e f o r m t h e United Nations from within, in accordance with the provisions of t h e C h a r t e r.

The second is progressively to negotiate t r e a t i e s t h a t a l t e r the processes f o r adopting legal decisions, incrementally altering decision-making procedures for particular subject matters under each treaty. The third is to develop alternative law-making institutions outside of the United Nations.

F i r s t, reforming t h e U n i t e d N a t i o n s f r o m w i t h i n is the project t h a t t h e current Secretary-General, Kofi Annan, would like to leave as his legacy. On 21 M a r c h, 2005 he proposed the organisation’s m o s t a m b i t i o u s project f o r c o n s t i t u t i o n a l r e f o r m s i n c e i t s i n c e p t i o n. 27 The m o s t discussed proposal is t o expand the Security Council by nine members, from 15 to 24, including either six new permanent members without veto powers, or eight new renewable positions.

The other substantial proposal is to abolish the defunct Trusteeship Council and replace it with a Human Rights Council, smaller and more authoritative than the current H u m a n R i g h t s Commission. Each of these changes requires a Charter amendment. The Human Rights Commission would be dissolved, and a Peace Building Commission established under the Economic and Security Council by resolution.

T h e d i f f i c u l t y w i t h t h e r e f o r m p r o p o s a l s is t h a t t h e y d o n o t a d d r e s s t h e f u n d a m e n t a l lack of d e m o c r a t i c j u s t i c e embedded w i t h i n the C h a r t e r ’ s foundations. They do not alter the entrenched veto powers of the permanent five members of t h e S e c u r i t y Council, or t h e f i c t i o n o f sovereign equality in o t h e r decision-making organs. In fact, it is impossible to reform these from within the framework of the Charter, as the majority of United Nations members are not democracies and would oppose reforms premised on d e m o c r a t i c j u s t i c e.

Therefore, efforts to reform from within, in accordance with the Charter, will be forever fruitless.

The second approach, which is to incrementally a l t e r decision-making procedures for p a r t i c u l a r subject m a t t e r s by means of ad hoc t r e a t i e s, i s already in progress. United Nations t r e a t i e s concerning t r o p i c a l t i m b e r, a t m o s p h e r i c ozone depletion, c l i m a t e change and nuclear safety each d i f f e r e n t i a t e t h e o b l i g a t i o n s o f various categories of t h e i r p a r t i e s. 28 They and others also set their entry into force provisions according to criteria related to the treaty subject matter, rather than according to the number of ratifications by sovereign equals. Outside the United Nations, i n s t i t u t i o n s concerned w i t h f i n a n c i a l a n d t r a d e m a t t e r s h a v e l o n g qualified sovereign equality in decisionmaking procedures by applying economic c r i t e r i a. Nevertheless, t r e a t i e s a r e negotiated on the fictitious premise of sovereign equality and are ad hoc. They form a meandering path that wanders without a destination.

The t h i r d approach, which is to develop a l t e r n a t i v e law-making i n s t i t u t i o n s outside of the United Nations, is the only one t h a t offers any potential. It is likely that other political alignments outside the UN, such as the G8, NATO or the “coalition of the willing”, will develop international law-making roles independent of and overlapping the m a n d a t e of the United N a t i o n s.

Weighted voting, direct democratic representation, chambered decision-making and s t r e n g t h e n e d j u d i c i a l oversight of procedural i n t e g r i t y m i g h t u l t i m a t e l y e v o l v e a s n e w i n t e r n a t i o n a l i n s t i t u t i o n a l s t r u c t u r e s a r e b u i l t. This would seem to be the only hope to develop democratic j u s t i c e i n i n t e r n a t i o n a l law-making.

The process of adoption of an international political model along these complex lines would be a fraught process requiring resolute leadership. However, it is not impossible.

Useful i n s i g h t s a r e a v a i l a b l e f r o m t h e e x p e r i e n c e o f the European Union, which h a s jettisoned the one-State-one-vote principle. I t h a s qualified voting procedures t h a t vary w i t h the topic, three inter-dependent decision-making bodies t h a t represent sovereign and popular concerns, counter-balancing of interests through chambered procedures, and a robust Court of Justice, and it is constantly seeking to improve the quality of its decision-making procedures by means of constitutional reform.

Yet one need not look so f a r a s Europe. The A u s t r a l i a n C o n s t i t u t i o n provides a federal legislative procedure t h a t qualifies popular votes w i t h regional votes t h a t have d i f f e r e n t i a t e d per c a p i t a weights. The effect on A u s t r a l i a n law-making of the Senate’s d i f f e r e n t i a t e d per c a p i t a voting i s moderated by the House of Representatives, and the combination of both Chambers seeks to set a balance between regional and popular values.

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