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February 18, 2005

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A New Grand Bargain for Peace Towards a Reformation in International Security Law

Greg Austin and Ken Berry

Executive Summary

Kofi Annan’s reform path at the United Nations (UN) has opened up more credibly than ever before the possibility of reform of Security Council membership arrangements. There is, however, little recognition so far that proposed new ‘standing members’ of the UNSC, especially India, represent a belief system and a set of power relationships that may, and probably should, sweep away important deformities of the old order. The underlying credo of the old order may be the same – peace among nations – but there is rising intolerance among developing nations of the current system of ‘indulgences’ enjoyed by the P-5. There is a rising confidence among leaders in the developing world that a new international economic and social order, with a fundamentally more democratic and grass-roots nature, is taking shape.

On the economic front, this gulf between the developed world and the developing world, represented in part by the G-77, has been made plain in the G-77 rejection on 27 January 2005 of key aspects of the report of Annan’s High Level Panel on the threats and challenges facing the UN system and its members: ‘the report does not adequately address many issues of concern to the South’. This is our conclusion too. It is plain therefore that if major powers of the ‘North’ proceed with UN reform primarily by reference to the Panel’s report, as if all that need be done were to ‘implement’ the report, then a historic opportunity will have been passed by and a major series of common threats will not have been addressed.

The UN system does not just need reform. It is in need of a political reformation. The scope of the reformation needed and the paths it must take can only be understood with reference to the massive changes in power relationships in the world since the UN Charter was signed. But an additional reference point must be the moral and political impulses that led to or flowed from those power changes. An adjustment to UNSC membership arrangements and creation of a new Peacebuilding Commission, along with the lesser recommendations of the Panel, do not address many of the threats and challenges enumerated by the panel itself. But more importantly, the changes recommended by the Panel do not remotely reflect the character and scale of the transformation of world order in recent decades, especially the last decade.

A ‘root and branch’ reformation of the UN will not be led from New York, or from the foreign ministries of the major powers. Through appointment of his High Level Panel on UN reform, Kofi Annan has delivered the opportunity, and indeed further exposed the need, but he cannot lead the reformation. Annan is no Martin Luther. He could not survive as Secretary-General if he were.

A new order for international security, based principally on reform of the Security Council, is not sufficient of itself in the absence of a comprehensive approach to other aspirations for reform among major actors and without addressing several areas of grave concern in international security order broadly defined. This paper argues that the growing support for reform of the Security Council provides a unique opportunity to address these other concerns. States can now work towards a new grand bargain that will begin to bridge the growing gulf between, on the one hand, US and European perceptions of the international legal and political order and, on the other, those of the ‘non-West’, especially in Asia, the Middle East and Africa. Only when these other concerns are addressed will reform of the Security Council be meaningful and durable.

These other concerns relate to the effects of a number of lawful or unregulated activities which for many states and people are so destructive or deleterious that they need to be addressed by new legal regimes. For these states and people, such concerns are felt to be as fundamental to conceptions of international order and global collective security as the Security Council itself is. These concerns go to the very heart of perceptions of security at one or more of three levels: collective security, state security or human security. Together they might be bracketed under the term ‘common security’.

The discrete areas of international law that are affected by these fundamental concerns include:
�� Sanctions and Trade Bans
�� Humanitarian Law in Armed Conflict
�� Military Interventions
�� Foreign Military Bases
�� Private (non-state) Actions in Armed Conflict
�� Sovereignties, New and Old
�� Biological Weapons
�� Missile Proliferation
�� Nuclear Weapons Proliferation and Control Regimes
�� Weaponisation of Outer Space

While at first glance, there may appear to be few direct links between many of these subjects, all of them raise concerns that can no longer effectively be addressed only by relying on the normal processes of subject-specific international conferences or bodies set up specifically to negotiate arms control instruments. Indeed, some of the issues have so far fallen outside of reform efforts in international security law.

More specifically, many of the opportunities for potential reform of international security law in these individual areas will not be fulfilled within the existing frameworks for intergovernmental consideration of each one. There are a variety of reasons for this unique to each case, but there are also generic causes. One of the most overwhelming generic causes is the growing suspicion internationally that the USA, or indeed other P-5 members, will seek to entrench their supremacy or power positions at existing levels. A generalised approach to reform of international security law is now needed. It is of some note that the 2003 Agenda of the International
Law Commission includes an item on ‘Fragmentation of international law: difficulties arising from the diversification and expansion of international law’. This situation is clearly in evidence in the domain of international security law. The proposed new approach to reform of international security law should include the following elements:
�� States must now treat international security law as a unified corpus of policy and practice in need of comprehensive review
�� The UN should convene a Special Session of the General Assembly on International Security Law (The planned discussions of only a few aspects of global collective security reform during the September 2005 summit of ‘Millennium plus five’ will not be adequate.)
�� This UNGA Special Session should establish a standing UN
Conference on International Security Law (UNCISL) with a potential life span of 5-10 years
�� UNCISL should set up working groups that address clusters of linked issues now currently treated quite separately at the intergovernmental level (for example, clustering all issues of weapons of mass destruction now dealt with discretely as chemical weapons, biological weapons and nuclear, together with consideration of an international regime on missiles which is currently almost totally lacking).
�� The International Law Commission (ILC) must take on a multi-year project of review of global collective security law. (The ILC has never addressed international security law, except for its foray – highly contested at the political level – into attempting to define ‘aggression’ more than twenty years ago.)
�� States must work closely with mobilising NGOs, think tanksand leading scholars in a process of global and regional consultation similar to that seen in the cases of the landmines ban or control of small arms and light weapons.

The general objective must be to seize the opportunity now presented by the prospect of Security Council reform to make a quantum advance in reducing the scope of war and war-like actions, an advance that may be as radical as the Kellogg-Briand Pact of 1928 which sought to outlaw aggressive war and as ambitious as the signing of the UN Charter in 1945. In particular, there must be:

�� an outright prohibition on the use of generalised, non-targeted economic sanctions or trade bans
�� a new mechanism of accountability to the UN General Assembly for civilian casualties in all wars or combat operations, either those authorised by the UNSC or those lawfully undertaken by states without specific authorisation of the UNSC
�� a new commitment to work towards the complete prohibition of weapons of mass destruction
�� a new relationship between UN membership and state sovereignty since sovereignty remains one of the main catalysts of war.

Current P-5 members may be surprised how well they could secure their own interests through a detailed and necessarily protracted set of negotiations in which they look to make trade-offs between their preferred responses on issues of concern to the non-aligned movement (such as the banning of comprehensive sanctions, elimination of nuclear weapons or security guarantees) and great power interests (such as an end to proliferation of all sorts of WMD, especially biological weapons, and the harbouring of terrorists).

In the next twelve months, states and all interested parties must avoid the easy option of pretending that a UN-convened panel could ever have reached consensus on all of the threats and the appropriate responses to them. The tough questions and the politically difficult answers regarding reform of the international security order probably lie elsewhere than in such a report, even though the Panel’s report does provide a great launch pad for a ‘reformation’ in that order. There is a need for massive mobilisation of specialists, NGOs and like-mined states that emulates the Ottawa process that led eventually to the banning of land mines.

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