I.P.O. RESEARCH PAPERS

Dr. Hans Köchler

(I) The Structure of the Post-war System: The UN Charter as the
Embodiment of the "Spirit of 1945"

In 1945, the founders of the United Nations envisaged an international order to be guaranteed by the victorious powers of World War II. For half a century the world organization has been tied to the power balance of 1945. Any question of UN reform therefore has to address the question as to whether the global constellation at the turn of the millennium is still the same as when the organization was founded, and if not, in what respect ( or in what direction ( it has changed. Common sense tells us that after the end of the bipolar system of the Cold War and since the emergence of new regional powers that did not yet exist as sovereign entities when the United Nations Organization was founded, a completely new scene of international actors has arisen, one which must be assessed with regard to each country's right to be adequately represented in the international decision-making processes.

It goes without saying that a Charter which suits the interests of a small minority of member states (as those interests were defined in 1945) cannot be sacrosanct under circumstances in which the organization increasingly assumes a universal character with regard to its membership, in contrast to its founding period, when it was merely a minority organization of certain colonial powers and their allies in a peculiar constellation that had emerged from a world war. Article 107 of the UN Charter clearly documents this legacy of a global armed confrontation. If a system that is the result of such a historical struggle is preserved under totally different circumstances (whether economic, political or military) one may well raise the question as to whether this will not further intensify tensions and injustices on the global level, contrary to the aims and purposes as proclaimed in the Charter itself.

The central problem with regard to this World War II legacy is definitely the structure and authority of the Security Council in the constitutional framework of the Charter. The present UN system vests practically unlimited power in the victors of World War II, the permanent members of the Security Council, and allows the General Assembly only to play a marginal role. This system does not meet even the basic requirements of the international rule of law, as no separation of powers exists under the UN Charter. The Security Council exercises de facto supreme legislative and executive powers (and even judicial powers). This has been evidenced in the recent sanctions resolutions against Libya.¹ Because of the special Charter provision in Art. 12, the Council can effectively block any deliberations by the General Assembly (which is not in itself a genuinely democratic body, either). The "Uniting for Peace Resolution" which is often referred to by idealistic believers in the UN system does not give adequate redress to this disquieting situation of Security Council domination over the agenda of the General Assembly.² On the basis of an excessive interpretation of the respective provisions of Chapter VII, particularly Art. 42, the Security Council further reserves for itself the right to declare and to wage (or "authorize") war with impunity. This was demonstrated beyond any doubt in the case of the Gulf Conflict of 1990-1991, in which the actual warfare authorized by the Council far exceeded the stated purpose of restoring the sovereignty of Kuwait.³

Furthermore, the veto privilege of the permanent members is not only incompatible with basic principles of transnational democracy; it is tantamount to the traditional jus ad bellum (long abandoned in the doctrine of international law) because it allows for the reintroduction of the concept of "just war," i.e. of waging aggression under the protection of a kind of "legal immunity" which is practically granted to the permanent members because of specific procedural rules contained in Art. 27 of the Charter.⁴

Vague provisions in the UN Charter have allowed the Security Council (particularly since the collapse of the Soviet Union and the end of the East-West conflict) to gradually arrogate additional powers beyond its original mandate and in contradiction with general rules of international law. We have seen this in the adjudication of border disputes (as in the case of Iraq and Kuwait) and in the setting up of international tribunals (as in the cases of former Yugoslavia and Rwanda). All of this is clearly in violation of the principles of the separation of powers ( so essential for the rule of law (and to the detriment of the status and competence of the International Court of Justice). The domineering nature of the Security Council's role in the UN power equation – which was designed to suit the Allied Powers of World War II – is even more serious and detrimental to global justice at a time when only one superpower determines the course of action.

All of the above-mentioned forms of an unrestrained and uncontrolled exercise of power resemble the traditional system of government as represented by European absolutism. This kind of unrestricted rule is the direct result of a change in the balance of power since the end of the East-West conflict. The effective control of the only remaining superpower over the decision-making processes of the Security Council has led to an erosion of international legitimacy and has severely undermined the UN Charter in its basic claim of establishing an international order where peace and human rights prevail. Under the slogan of the "New World Order," a policy of double standards has been introduced in the international arena, where interests prevail over rights of peoples and states.⁵ A striking example of this trend is the recent sanctions policy and practice of the Security Council.⁶

This factual situation reveals the basic weaknesses of the UN system with regard to the requirements of transnational democracy. An organization whose charter deliberately excludes any regulations of checks and balances and enthrones the victorious powers of World War II as custodians of humanity (in the political, legal and ethical meaning of the term) necessarily falls victim to the only remaining superpower, which then alone benefits from the de facto-immunity it enjoys under the Security Council's procedural rules which were originally designed by the victors of World War II to ensure their permanent control over world affairs and over the world organization. The developments since Gulf War II (1991) have made this even more evident.

If we take all these factors into due consideration, we realize that there is no true international legitimacy in the present global constellation. Any decision about international peace and security – especially on the basis of Chapter VII of the Charter – is determined by the interests of particular UN member states, which override the interests of the weaker states. The UN Charter with its provisions in favour of a strong Security Council – that is to say, its permanent members – serves as a convenient cover for old-fashioned realpolitik, whether in the Gulf, in Somalia, in former Yugoslavia, etc. Because of the lack of mechanisms of democratic control in the Charter itself, the most powerful state is able in many instances to have its interests "canonized." Smaller states are involuntarily reduced to the status of puppets that can do no more than endorse what has already been decided. Austria's role as a non-permanent member of the Security Council in the period of the last Gulf War is a vivid example of this predicament.

Vis-à-vis the overwhelming factual power of the leading ("permanent") actors in the Security Council, there is for the smaller states or even regional groupings of states (such as the Arab League, the Organization of African Unity, or the Organization of the Islamic Conference) no margin to maneuver. This is particularly demonstrated by the peace process in the Middle East, where, since 1967, no Security Council enforcement measures have been imposed upon the occupying power in Palestine,⁷ while the authority of the Council on the basis of Chapter VII was excessively used to pacify the Islamic Gulf region with consequences that most of us are not yet aware of.

We have seen that the present United Nations system reflects the power balance of an earlier era and imposes upon the rest of the world a "legitimacy" guaranteed by a few "constitutionally" privileged countries – whereby such privilege results from actual power, not from legal rights. Apart from this fact, the lack of democracy on the international level is also evidenced by the United Nations' proven inability to do anything meaningful to bridge the gap between North and South in terms of economic conditions. The existing economic imbalances are not addressed by the UN Charter, which is no wonder if we take into consideration the fact that the Charter was drafted by the leading colonial powers of the forties. The "constitutional inequality" which was written into the Charter by those who privileged themselves as the "permanent members" is complemented by the economic inequality between North and South. No country of the South has the status of permanent member in the Security Council. The "haves" are not ready to share with the "have-nots" – whether with regard to (political, military) power or wealth. The former will therefore not accept any game rules on the basis of the principle of equality as idealistically enunciated in the Preamble and in Chapter I of the Charter.

Sovereign equality, in the legal sense of the term,⁸ is denied to the non-permanent members of the Security Council; equality in a broader economic and political sense is furthermore denied by the economically powerful countries of the North to those of the South. Countermeasures proposed by the UN General Assembly in the seventies – see its 1974 declaration on the establishment of a "New International Economic Order"⁹ have never been implemented.¹⁰ The global economic power rests in the hands of the North, particularly of the so-called G7-states, three of which the United States, the United Kingdom and France are permanent members of the Security Council.

The global imbalance on the military level is even more serious: nuclear power is mainly in the hands of the five permanent members of the Security Council. This kind of military imbalance, related as it is to the possession of arms of mass destruction, implies that most of the member states have been made hostage to the power politics of the permanent members. There is no freedom of decision and no margin for the exercise of national "sovereignty" vis-à-vis the overwhelming destructive power of the nuclear states. The events in connection with last year's extension of the Nuclear Non-proliferation Treaty (NPT) are clear proof of this state of affairs.

The question we have to ask ourselves is how the international system should be restructured so that these legal, economic, and military imbalances will be eliminated and international organization will be based on the rule of law, which alone can serve as the basis for transnational democracy. How can democracy be achieved among UN member states in terms of legal and constitutional procedures when huge economic and military imbalances prevail? How can the concept of sovereign equality be the basis for the international rule of law when the de facto sovereignty of the member states is continuously eroded because of the above-described factual imbalances?¹¹ Even if basic procedural rules of the UN Charter are changed, international democracy cannot be achieved without addressing the drastic material inequalities among states and groups of states. The North-South conflict can definitely not serve as the framework for reshaping the decision-making procedures of the United Nations along democratic lines.

This said, we now have to concentrate on the procedural aspects of transnational democracy as the basis for United Nations reform. Our analysis is based on the understanding that, just as the world organization cannot continue to be the tool of the victorious powers of World War II, neither can it be the instrument of the industrialized world in imposing its hegemony upon the rest of the world. The paralysis which befell the organization in the era of the East-West conflict must not be compensated now by the use of the United Nations as a power tool in the hands of the only remaining superpower and its allies or proxies. The question of transnational democracy must be raised on the level of a "new world order" where no state or group of states dominates the others. This idealistic assumption is naturally the basis of all efforts toward a genuine democratic reform of the international system within the framework of the United Nations.

(II) The Requirements of Transnational Democracy in a Multipolar System
Based on the Global Sharing of Power and Resources

The concept of democracy in the present global discourse is exclusively used in the sense of representation. This relates more to an oligarchic model than to the participatory system required by the universal validity of human rights as the basis for any democratic system.¹² In the present ideological discourse dominated by the West, direct democracy is practically excluded because of the assumption of its totalitarian nature. This is in line with the special importance of pressure groups whether in the form of political parties or other lobbies in the political mechanisms of the so-called liberal democracies of the West.

The oligarchic (representative) paradigm of democracy best suits the legitimization discourse of the "New World Order." Indeed, superpower hegemony needs the fiction of representation for its legitimization.¹³ "Representation" unavoidably negates the sovereign status of the citizen. In the history of the Western political system, it has functioned as the classical ideological tool for the legitimization of élite rule which, in the case of international relations, has been embodied by the rule of the self-declared guardians of humanity over the rest of mankind. This understanding of foreign policy excludes on the one hand the participation of the citizen in the making of foreign policy in his own state; on the other hand it excludes the smaller, "immature" states from the participation in the decision-making processes on the global level of the United Nations. In particular, the structure of the Security Council incorporates this ideology of representation on the transnational level, whereby certain states define their own role as the role of those who have "primary" responsibility for the preservation of world peace (see the formulation of Art. 24 of the Charter).

The procedural (decision-making) rules of the UN Security Council in Art. 27 incorporate an extreme form of the ideology of representation. The veto powers (the permanent members) fictitiously represent humankind (the community of nations) with regard to the peoples' most basic rights, such as the rights to life and peace.¹⁴

In order to make democratic rules applicable in an international framework, the system of state representation as in the case of the UN General Assembly and even more so of the Security Council would have to be complemented or replaced by an Assembly of Peoples' Deputies (additional to or replacing the General Assembly of states' representatives) who are directly elected on the regional level. The Second International Conference On A More Democratic United Nations (CAMDUN-2) has worked out specific proposals in this regard.¹⁵

There should be no illusion concerning the fact that the establishment of such an additional body with special competence in the power equation of the United Nations is not realistic in terms of the realities of power politics. In view of Art. 108 any Charter amendment is totally elusive if it is not in conformity with the wishes of the permanent members of the Security Council. If, until now, it has not even been possible to abrogate Art. 107 of the Charter (which clearly is a relic of World War II and, in the present global constellation, grossly violates the spirit of peace, co-operation and partnership that is to be promoted by the world organization according to Chapter I of its Charter), how then could it be possible to undertake the drastic steps of Charter amendment that are required in order to do away with the privileged position of the "Great Five" – as incorporated in the veto right – that stands in the way of a genuine democratization of the United Nations? In view of this situation, the scholar of international affairs may only present the sketch of an ideal system, one that could serve as an alternative to the present post-war system, knowing that the question of implementation must be dealt with in another context.

Several proposals for United Nations reform have been made on the basis of the present Charter, emphasizing the need to make better use of existing provisions of the Charter itself. The Second International Conference On A More Democratic United Nations (CAMDUN-2) in Vienna worked out a list of nine specific proposals "that appear feasible under the UN Charter as it exists," among them the proposal for the establishment of a Second (peoples') Assembly which would constitute a subsidiary organ of the General Assembly under Art. 22 and would be "representative of the peoples of the United Nations as global inhabitants."¹⁶ Similar proposals have been made by a Com-mission on Global Governance¹⁷ and by other committees and think-tanks.¹⁸ These well-intentioned proposals sometimes presented in a very cautious and conventional manner without challenging the basic dogmas of present-day power politics are not sufficient when it comes to a real democratization of the United Nations system. In most cases, they amount to cosmetic measures because their implementation does not affect the actual balance of power among the various organs of the United Nations or the member states themselves. The proposal for a "Second Assembly" of peoples' deputies also falls into this category as long as such an assembly has no authority of its own in a system of checks and balances that would have to be created anew. An advisory body may only serve as an "ornament" representing such vague concepts as the "conscience of the world," and it will not change the undemocratic realities of decision-making within the UN.

Only through amending the Charter in some of its basic provisions – in regard to the power-sharing between General Assembly, Security Council and International Court of Justice – can one bring about an international organization that conforms to basic principles of democracy. Such a Charter reform should envisage an elaborate system of the separation of powers that is comparable in structure to the commonly accepted requirements of the rule of law on the domestic level of the member states. With regard to democracy and legality the same rules should apply on the national and on the transnational levels.¹⁹ The requirements of a separation of powers may best be met by the introduction of a genuine two chamber-system in the organization of the United Nations. While the General Assembly consists of governmental representatives and makes its decisions on the basis of the principle of "one state–one vote," a second chamber – a Peoples' Assembly – should be created that would serve as the legislative body of the organization. This assembly would consist of the directly elected representatives of the world's population. Their number would have to be related to the population size of the respective country or – where the country is too small – to the population of a regional grouping that would have to be created. The European Parliament could serve as a model for the composition of such a parliamentary body on the global scale. While the General Assembly in such a two chamber-system would be comparable to the Senate (second chamber), the Peoples' Assembly would exercise an authority that is derived from common democratic procedures. Its delegates would have to be elected in regular intervals.

Ideally, such a parliamentary system of indirect democracy should be complemented by forms of direct democracy – worldwide referenda, for example – when major issues of world peace are at stake. The question of the admissibility of nuclear arms would be one such issue to be presented to the global population. It remains to be seen to what extent the use of modern computer technology can help to organize such direct decisions by the people.²⁰ For the time being, this is definitely beyond the scope of realization because of the lack of the necessary infrastructure, particularly in the countries of the South. Irrespective of this, referenda on major issues to be defined by the International Peoples' Assembly (as it is envisaged here) could be held in the member states of the United Nations according to common procedural standards that are well established in all democratic countries. Furthermore, if one aspires to establish genuine forms of direct democracy, one may also consider defining the mandate of the peoples' deputies within the framework of the imperative mandate.

It goes without saying that the introduction of such a new "parliamentary" system in the UN is meaningless without an effective arrangement assuring the separation of powers, particularly as concerns the Security Council. Under the present Charter the Security Council embodies a kind of totalitarian rule by the organization's founders over the rest of the member states. The Council acts not only as executive power; its margin of discretion – particularly in matters of international security – amounts to a kind of legislative power insofar as it determines the rules of application and even the norms of international law to be applied in the settlement of disputes or in the preservation or restoration of world peace, while at the same time it implicitly creates new norms through an application practice that is often technically in violation of Charter norms. As recent resolutions on Libya, former Yugoslavia and Sudan amply demonstrate, the Council furthermore even acts as a judicial authority, i.e. it has arrogated this authority in the absence of applicable Charter provisions. All of this is to be viewed in a constitutional context in which the Council's decisions are not subject to any review. The General Assembly in the present system has no right at all to censure the Security Council or to recall its members. It may only "consider" the Council's reports (as stated in Art. 24, par. 3 of the Charter). The Council acts completely arbitrarily in a "vacuum of power politics." It is clear to the theoretician of democratic and constitutional procedures that the Security Council must be integrated into a system of the separation of powers as envisaged here; it must be assigned the role of an executive body that must be held accountable to the peoples' delegates. If the world community does not tackle this crucial issue of international legality and democracy, we shall forever have a system of global anarchy where "might makes right" and where a small minority rules over the rest of the world, thus eternalizing present divisions and intensifying tensions along the lines of the already existing North-South divide.²¹ International legitimacy, however, can only be reached on the basis of democratic structures. No "ideology of double standards" is acceptable, whereby democratic standards are meant for domestic use (for application in the domestic constitutional system) and the rules of power politics apply to the international realm.

The integration of the Security Council into a well-defined system of checks and balances would inevitably erode the dogma of national sovereignty in the sense of unlimited, unchecked state power whose exercise is beyond any scrutiny on the part of the international community. It would at the same time strengthen tendencies towards the transnational legality of a "world state" or "world federation" structure. Sovereignty in the sense of absolute state power is definitely not compatible with the concept of equality required in any charter in which co-operation and partnership for the common good – i.e. economic and social development and world peace – prevail over "interests" exclusively defined by power politics.

If the Security Council is to play a role in conformance with a new system of checks and balances including the Peoples' Assembly (that in fact would be the First Chamber in the system envisaged by us) and that is compatible with the requirements of transnational democracy, its composition would have to be balanced on a regional basis. The central executive body of the global organization in charge of the preservation of world peace cannot remain exclusively structured according to the interests of its original founders. Apart from abolishing the veto privilege once and for all,²² one also has to tackle the composition of its membership. As already envisaged in Art. 23, par. 1 of the present Charter for the non-permanent members, "equitable geographical distribution" should be the principle for the selection of the state members. One should consider replacing the concept of "permanent membership" with a kind of regional membership. Seats on the Council would then be assigned to the various regional political entities such as the European Union, the Organization of African Unity, the Commonwealth of Independent States, the League of Arab States, etc. Within each regional grouping the seat could rotate according to a jointly approved scheme. This would prevent the kind of "over-representation" which presently characterizes the Security Council system in favour of the membership of European states.

The establishment of a global security structure comprising all member states remains elusive under the present circumstances of national sovereignty and power politics. The formation of more or less coherent regional power structures on the basis of common economic and security interests seems to be more realistic. The development of the European Union, the Association of South-East Asian Nations (ASEAN), and the Gulf Co-operation Council are examples of the emergence of such regional structures, in the framework of which particularly smaller states may better be able to articulate their legitimate interests and defend their international position. These regional groupings are based on a certain homogeneity in their political and economic systems; they have a concrete basis for their joint international action, in contrast to "universal" organizations whose lack of internal cohesiveness makes them prone to largely inefficient, often bureaucratic action.

These regional groupings could constitute a new global system within the framework of a reformed Security Council. The regional entities – like the "permanent members" in the old post-war system – would constitute a new Security Council on the basis of equal geographical distribution and a shared responsibility for global affairs. No regional member should be allowed to enjoy "constitutional" privileges. No such grouping should be allowed to have overwhelming power over the others, as this would profoundly destabilize the global order. (This is exactly the situation we are witnessing today: the United States is practically the only actor in the Security Council vis-à-vis member states which are economically and militarily weak or otherwise marginalized.) The collective membership on a regional basis which we envisage for a democratically reformed Council would make such marginalization less likely. A system of multipolarity with several regional power centers is definitely better suited for a kind of democratic co-operation within the framework of the Security Council than the present unipolar system in which every member state on its own has to defend its national interests vis-à-vis the only superpower that is able to enforce decisions on international peace and security.

This leads us to the question of power in the international system in general. Even if a democratic reform of the United Nations Charter under the present conditions of world economy and armaments were at all possible, the overwhelming majority of member states would still not enjoy the freedom of action that is necessary to make the exercise of one's democratic rights meaningful. Democratic rules written down on paper would have to be based on socio-economic and military realities, otherwise they remain abstract procedures without applicability.²³ The same holds true for the mechanisms of democracy on the domestic level: de facto inequality in terms of economic status or social standing etc. may prevent the citizen from making use of specific rights he enjoys under the constitution. Similarly, a state that depends on the goodwill of a rich and powerful member of the Security Council, for example – because its economy depends on foreign aid, because its internal security is guaranteed by the security establishment of that other state, and so on – such a state has no freedom of decision, no margin to maneuver when it comes to matters such as decisions on international security that affect the interests of the more powerful state. The weaker state's participation in Security Council deliberations and decisions becomes democratically meaningless in such a context because that state cannot make such decisions freely, as assumed by the Charter; it may even be dangerous for the security, preservation of national sovereignty and economic interests of that state if its decision contradicts the interests of more powerful states. The recent record of Security Council resolutions since the Gulf Crisis in 1990 gives ample proof of this. Erskine Childers referred to this dilemma when he spoke of the Northern powers' "use of bribery and extortion to silence" with the purpose to induce certain decisions in the Security Council.²⁴ For Childers, this behaviour of Security Council member states "is the outright subversion of the very sovereignty and equality of member states in international law at the United Nations."²⁵ Legal equality remains an empty concept as long as gross inequalities exist in terms of power politics, disparities which are related to the economic and military status of each member state. This is one more argument in favour of our thesis that democratic decision-making in the Security Council should be based on a regional representation in which the smaller state enjoys the protection within the framework of the regional entity acting on its behalf as a kind of "permanent" member of the Security Council.

Without a minimum of fairness and balance in international economic reality and in terms of international power politics in general, even the most far-reaching democratic provisions in a reformed UN Charter would be empty phrases or mere exhortations. The conventional theorists of international politics usually overlook this harsh reality, which greatly damages the credibility of their proposals. Without a kind of "new international economic order"²⁶ and without a "new international military order" ( in the sense of a certain balance in military strength ( transnational democracy has no meaning at all. The formal exercise of such "democracy" would only be a cover behind which to hide the real state of dependence of most UN member states. Idealistic enunciations will not do away with the harsh realities of international power politics, as should have become clear, in the meantime, to all those who were originally taken by the rhetoric of a "New World Order" in the post-Cold War euphoria. There is no international democracy if one state (superpower) or a group of states (e.g. the G7-members with regard to their economic wealth or the permanent members of the Security Council with regard to their military superiority) hold other states hostage to their strategies and interests.

These realities of power politics (representing an obstacle to the exercise of transnational democracy) are particularly obvious in the military field. Under the present conditions, the nuclear powers enjoy a certain military and political strength that cannot be matched by the non-nuclear states. The sovereignty of the latter is limited, even negated by the overwhelming destructive potential of the nuclear states. It is obvious that no dialogue, no democratic discourse is possible on the basis of such an imbalance in terms of power politics, a situation in which one side can hold the others hostage for the sake of its own interests. Democratic deliberations require a certain balance of forces that allows each actor to express his views without fear. However, the present inter-state discourse in the supreme forum of the United Nations, the Security Council, is determined by fear instilled by the great power(s) into the weaker states. Within a strictly legal system – even within the universal framework of the United Nations – no effective international control over these arms of mass destruction can be envisaged. The overwhelming might of the nuclear states on the international scene simply does not allow a formally "independent" international body to be efficient in the exercise of its controlling power. The recent developments in the relationship between the Security Council and the International Court of Justice are further proof of this.²⁷ Abolishing the arms of mass destruction, above all nuclear arms, is therefore the basic condition for democratic decision-making between states. This alone can ensure the necessary balance in the interplay of forces on the transnational level. Such a measure would undoubtedly be the largest contribution to the democratization of the United Nations in terms of the conditions of realpolitik. It is within this context that the "World Court Project" of the International Association of Lawyers Against Nuclear Arms (IALANA), originally launched by the late Seán MacBride in co-operation with the International Progress Organization, gains special importance for the whole movement to democratize the United Nations. The decision by the UN General Assembly to ask the International Court of Justice for an advisory opinion on the legality of the use of nuclear arms is a major step in this direction, at least as far as international conscience-building is concerned.²⁸ Furthermore, it is high time that the Security Council came out with concrete plans "for the establishment of a system for the regulation of armaments" as called for in Art. 26 of the Charter. Such a system necessarily implies a policy of disarmament based on the principle of the "least diversion for armaments of the world's human and economic resources" as stated in the same Article.

The question of military imbalances, which pose one of the biggest obstacles to international democracy, leads us, however, to one of the most intractable problems of international legality: that of enforcement. Granted that decisions have been made in a genuinely democratic manner, there must be a coherent international power structure that allows their implementation. In the United Nations Organization of today, that is characterized by superpower rule, enforcement is guaranteed by the permanent members of the Security Council. The international rule of law – in the sense of the application of the Security Council's decisions or their imposition upon reluctant member states – depends exclusively upon the permanent members of the Council. The Gulf War has demonstrated to the world what this actually means. In the absence of a unified transnational power structure – even the agreements stipulated in Art. 43 of the Charter for the establishment of a military force under the control of the Security Council have never been concluded!²⁹ the permanent members act as the sole guarantors of international peace and "law enforcement." This is stipulated clearly in Art. 106, part of the "Transitional Security Arrangements" of Chapter XVII, in which "the parties to the Four-Nation Declaration, signed at Moscow, 30 October 1943 [!], and France" are authorized to act as guardians of world security. Unavoidably, because of their veto privilege, this leads to total arbitrariness in the enforcement of international law, whereby the interests of the permanent members are the criterion for application or non-application (a) of particular norms of international law and of the UN Charter, and (b) of resolutions adopted by the Security Council under Chapter VII.³⁰ Thus, the rule of law becomes equivalent to the rule of the strong.³¹ The maxim of "might makes right" replaces the demand for the universal and unequivocal enforcement of international norms even vis-à-vis the powerful international actors. This again forces us to raise the question of national sovereignty, whose unrestricted exercise in the form of superpower rule under the veto privilege implies the negation of the other basic concept of the UN Charter, that of sovereign equality. As far as cohesive and consistent "international law enforcement" is concerned, sovereignty cannot be placed under a taboo any longer. Here, too, we are confronted with the inevitability of a World State concept (or that of a World Confederation) that does away with the traditional Souveränitätsanarchie, the "international anarchy among sovereign actors."

Whatever the options for a reform of the present international system may be, the dilemma of transnational law enforcement remains: the international rule of law is either guaranteed by one superpower (or by a group of powers) which necessarily leads to arbitrariness in the application of legal principles and/or decisions; or the international rule of law is guaranteed by a community of (legally) equal states – i.e. through collective law enforcement within a unified, democratic international structure – which implies a lack of efficiency in the implementation as long as the more powerful international players cannot be easily brought to conform to decisions that affect their own interests. This dilemma, that of the present system of collective security within the framework of the United Nations, can only be solved on the basis of a World State concept in which sovereignty is vested in the community (the collective of world states) alone, which in turn derives this normative status from the sovereignty of the citizen as a citizen of the world (a cosmopolitan).³²

Apart from the question of the (political, economic, military) power of states, the international reality is determined by another factor that is often overlooked in the treatises on the restructuring of international organization: the factual power of transnational economic entities that often determine the governments' bilateral and multilateral negotiations. One of the weaknesses of the theory of "liberal democracy" in the West is that these (not so hidden) economic players acting outside the official governmental framework are often ignored. They have acquired major importance at least for the shaping of North-South relations and for the industrialized world's policies on international trade in general. In spite of their actual influence, they act completely outside any framework of transparent democratic procedures. Any reform of the international system has to tackle this issue of hidden economic power and its leverage on transnational decision-making.

(III) Summary: A "New World Order" of Transnational Democracy versus the
"Old World Order" of Superpower Rule

What we have tried to describe here are the basic features of a "New World Order" of transnational democracy as distinct from the "Old World Order" of superpower rule. If the international community is serious about the democratization of the United Nations, then one must abandon the exclusionary character of the historical anti-Axis alliance of the Second World War (which undoubtedly was of anti-totalitarian nature and had its moral justification in the particular historical constellation) in favour of a truly universal organization that encompasses all nations and regions in fair and balanced representation. Only if the "We the peoples" in the Charter's Preamble is taken seriously and if we distance ourselves from the étatist paradigm of an absolutely posited national sovereignty (as incorporated in the traditional concept of the nation-state) will a new beginning be possible, in the sense of partnership and peaceful co-operation.³³ Inter-state democracy can only be based on such a reorientation of the doctrine of international relations away from the assumptions of the realist doctrine.³⁴

In summing up our very provisional sketch of an alternative United Nations system that revolves around the paradigm of transnational democracy, we would like to point to the following basic requirements:

(A) The democratization of relations between states requires a fundamental change in basic concepts of international law such as the related concepts of national sovereignty and of interference in the internal affairs of other states.³⁵ Sovereignty, which in its traditional étatist conception is linked to an abstract state entity, makes the existing imbalances we have referred to here even larger and makes democratic partnership between states even more elusive. Sovereignty must be redefined with regard to the sovereign rights of the citizen that are the foundation of every legitimate political entity.

Acknowledging this is the only way to democratically solve the problem of inequality of sovereign member states of the United Nations, in which one state represents the interests of one thousand citizens and another state represents the interests of one billion, but in which both presently enjoy the same one vote in the General Assembly of UN member states. In the present imbalanced situation in the UN system, this amounts to a kind of discrimination, i.e. of "weighted voting" in the form of the one state-one vote formula, in favour of the less populated states and at the expense of the vast majority of mankind. This inequality, that particularly intensifies the tensions between the countries of the North and of the South, has to be compensated – as we propose in this brief sketch of genuine democratic reform – through a kind of weighted voting-formula which takes into account the population size of each member state.³⁶ (As we stated earlier, the present General Assembly fits into the new system only as a Second Chamber in the form of a Senate, granting minority representation to the smaller states.) The normative requirements of such "weighted voting" in the international decision-making bodies can best be administered (as we have outlined above):

(a) through a balanced regional representation in the Security Council (whereby the seats allocated to each region on a permanent basis rotate among the members of the regional group), and

(b) through the establishment of an International Peoples' Assembly as the First Chamber in this new UN system. In this First Chamber, which would be similar in structure and competence to the European Parliament, the number of deputies of each country – or group of countries in the case of smaller states – would be proportional to the actual population size. The protection of "minority rights" of smaller states can best be assured in such a system with a two-chamber model, whereby the General Assembly would serve as the Second Chamber.

(B) The democratization of relations between states requires the introduction of a genuine separation of powers between the two envisaged world chambers which together comprise "legislative" authority, the executive power represented by the Security Council, and the judicial authority represented by the World Court. A new democratic Charter of the United Nations would have to define the role of the "International Peoples' Assembly" – the First Chamber – in such a way that basic competencies presently reserved for the Security Council would be given to the peoples' delegates. It would be totally impossible to simply transfer the role and competencies of the presently existing General Assembly to such a new Peoples' Assembly. Such an Assembly should above all be able to pass resolutions that are binding upon all member states (including the members of the Security Council), whereby the Council's role would be to enforce these resolutions. The authoritarian – and in a certain sense even totalitarian – structure of the present Security Council, in which legislative, executive and judiciary powers de facto coincide, cannot be tolerated in an alternative international system based on the paradigm of democracy. The dangerous development in the present "new" world order results precisely from this lack of the separation of powers in the UN system, in which the Security Council – since the collapse of the bipolar power system of the post-war era – has arrogated more and more powers on behalf of its leading actor, the United States.

I am well aware that this sketch of a democratic alternative to the present United Nations is only an idealistic vision far removed from reality. The biggest obstacle to the achievement of this alternative – apart from the interest for the preservation of power on the part of the big economic, military and political conglomerates in the form of the nation states, transnational corporations etc. – is the lack of cosmopolitan consciousness. As long as we exclusively define ourselves – our identity – on the basis of ethnic, religious, and national affiliations, there will be no understanding for an all-pervasive transnational order which alone can be the framework for international democracy. Our education towards transnational (cosmopolitan) solidarity and "global nation-building" still has a long way to go.³⁷

With regard to the United Nations Organization, the question arises for the philosophical analyst whether a system as described above in terms of superpower hegemony and the absolute sovereignty of the nation state can be reformed at all, or whether it should be replaced by an alternative system based on another paradigm of international organization: that of democracy instead of power and interest politics. The provisions of the Charter exclude any amendments without the consent of the permanent members of the Security Council, which makes democratic reform impossible in terms of realpolitik. The principal question still remains for those who proclaim the goal of United Nations reform: should a transnational system of decision-making be based on the paradigm of superpower representation (which is the reality of the United Nations in spite of the idealistic rhetoric of the Charter's Preamble), which practically legitimizes power politics in its unrestrained form, or should such a transnational system be based on the paradigm of democracy? The latter would imply not only a drastic change of basic concepts of international law, but also a shift in the balance of power from the present uni-polar to a genuinely multi-polar (not bi-polar) system in which all the regions could articulate their specific interests and concerns on an equal basis.

If the present international system is not able to accommodate the increasing concerns of the large majority of nations about the instrumentalization of the United Nations Organization for the economic and strategic interests of the – at present – only superpower and its allies, and if the United Nations continues to become a "party to the conflict" along the lines of the newly emerging North-South bipolarity, then the world organization, missing its stated goal of universality and instead favouring partisanship and great power interests, may well meet the same fate as its predecessor, the League of Nations.

Endnotes

1. See Declaration of Legal Experts on UN Sanctions Against Libya. New York, 1 December 1994 (Records of the International Progress Organization) and point 8 of the Memorandum on the Dispute between Libya and Members of the Security Council over the Inquiries into the Bombings of Civilian Airliners. International Progress Organization: New York, 6 February 1992.

2. General Assembly resolution 377 (V) of 3 November 1950 states "that failure of the Security Council to discharge its responsibilities ..., does not relieve Member States of their obligations" and stipulates that "if the Security Council ... fails to exercise its primary responsibility ..., the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures ... to maintain and restore international peace and security."

3. See the messages of the International Progress Organization of 19 December 1990 and 19 January 1991 to the President of the Security Council.

4. Cf. the author's analysis in The Voting Procedure in the UN Security Council. Examining a Normative Contradiction in the UN Charter and its Consequences on International Relations. International Progress Organization: Vienna, 1991.

5. For more details, see the author's paper Democracy and the New World Order. International Progress Organization: Vienna, 1993.

6. See the author's analysis: The United Nations Sanctions Policy and International Law. Just World Trust: Penang (Malaysia), 1995.

7. See Hans Köchler (ed.), The Human Rights Situation in Palestine. Reports by the Delegations of Inquiry on Behalf of the International Committee for Palestinian Human Rights. International Progress Organization: Vienna, 1989.

8. For details see Aleksandar Magarašević, "The Sovereign Equality of States," in Milan Sahović (ed.), Principles of International Law Concerning Friendly Relations and Cooperation. Belgrade, 1972, pp. 179-218.

9. See also the Declaration on the Right to Development (General Assembly resolution 97 [XLI] of 4 December 1986).

10. See Nassau Adams, "The UN's neglected brief. 'The advancement of all peoples'?" in Erskine Childers (ed.), Challenges to the United Nations. Building a safer world. Catholic Institute for International Relations: London, 1994/New York, 1995, pp. 26-50.

11. See Robert Charvin, "Egalité et inegalité devant la loi internationale": Les cahiers de Nord-Sud XXI, No. 2 [Geneva, 1994]. Boutros Boutros-Ghali even speaks of a "relative" juridical equality of states and their "functional" inequality with regard to their factual-political inequality. See "Le principe d'égalité des États et les organisations internationales," in Recueil des Cours. Académie de droit internationale, vol. 100 (1960), II, pp. 30ff.

12. See the author's analysis in Democracy and Human Rights. Do Human Rights Concur With Particular Democratic Systems? International Progress Organization: Vienna, 1990.

13. "Representation" in the sense of a special responsibility of the superpower(s) for world peace and security, combined with an authority to act on behalf of all the others (as stipulated by the Charter's description of the Security Council's function in Art. 24, par. 1).

14. See the author's The Voting Procedure in the United Nations Security Council, esp. Chapter III: The veto privilege as the major impediment to the achievement of collective security, pp. 13ff.

15. For details see Hans Köchler (ed.), The United Nations and the New World Order. Keynote addresses from the Second International Conference On A More Democratic United Nations. International Progress Organization: Vienna, 1992. Cf. esp. Concluding Statement of the Second International Conference On A More Democratic United Nations, pp. 49-52. See also the proposal for a "United Nations Parliamentary Assembly" in Erskine Childers with Brian Urquhart, Renewing the United Nations System. Uppsala, 1994, pp. 212-213.

16. See Hans Köchler (ed.), The United Nations and the New World Order, p. 50.

17. See Our Global Neighborhood. The report of the Commission on Global Governance. Oxford University Press: Oxford/New York, 1995.

18. See, for example, The United Nations in its Second Half-Century. A Report of the Independent Working Group on the Future of the United Nations. Yale University Printing Service, no date.

19. See the analysis by the former Foreign Minister and Head of State of Austria, Rudolf Kirchschläger: "Ethik und Außenpolitik," in Hans Köchler (ed.), Philosophie und Politik. Dokumentation eines interdisziplinären Seminars. Arbeitsgemeinschaft für Wissenschaft und Politik: Innsbruck, 1973, pp. 69-74.

20. See Geoffrey Darnton, "The Architecture of Large-scale and International Participative Democracy," in Hans Köchler (ed.), The Crisis of Representative Democracy. Peter Lang: Frankfurt/Bern/New York, 1987, pp. 263-283.

21. See Erskine Childers, "The Demand for Equity and Equality: The North-South Divide in the United Nations," in Hans Köchler (ed.), The United Nations and International Democracy. Jamahir Society for Culture and Philosophy: Vienna, 1995, pp. 17-36.

22. See the author's proposals in The Voting Procedure in the United Nations Security Council, esp. pp. 41ff.

23. See Ahmed Abdalla, "Unequal sovereignty, unequal power," in Al-Ahram Weekly, 19-25 January 1995, p. 11.

24. "The Demand for Equity and Equality: The North-South Divide in the United Nations," p. 32.

25. Op. cit., p. 33.

26. See Hans Köchler (ed.), The New International Economic Order. Philosophical and Socio-cultural Implications. Guildford Educational Press: Guildford, 1980.

27. For more details see the author's reference in The United Nations Sanctions Policy and International Law. Just World Trust: Penang, 1995, p. 10 and footnote 52.

28. See "Nuclear Weapons In Court. A Dream Becomes Reality": World Court Project Report. Lawyers' Committee on Nuclear Policy: New York, Winter 1995.

29. Par. 3 of Art. 43 calls since 1945! for the negotiation of such agreements "as soon as possible."

30. See the author's analysis: The Voting Procedure in the United Nations Security Council, Chapter I: "The voting procedure in the UN Security Council and traditional power politics," pp. 5ff.

31. With regard to US foreign policy see the pertinent analysis of Francis Anthony Boyle, "Machiavellianism Destroys Constitutionalism," in his work World Politics and International Law. Durham, 1985, pp. 293ff.

32. See the author's considerations in "The Principles of International Law and Human Rights," in Democracy and the International Rule of Law. Propositions for an Alternative World Order. Selected Papers Published on the Occasion of the Fiftieth Anniversary of the United Nations. Springer: Vienna/New York, 1995, esp. pp. 74ff.

33. An idealistic vision of "world government" in this sense is presented in the Constitution for the Federation of Earth adopted at the 1977 session of the "World Constituent Assembly" in Innsbruck and revised at the 1991 session at the initiative of the "World Constitution and Parliament Association." See A Constitution for the Federation of Earth. Lakewood/Colorado [1991].

34. For a detailed description of this influential doctrine of international relations see Hans J. Morgenthau, Politics Among Nations. The Struggle for Power and Peace. New York, 5th ed. 1978. See also the author's analysis: Foreign Policy and Democracy. Reconsidering the Universality of the Democratic Principles. International Progress Organization: Vienna, 1988.

35. The concept of sovereignty has to be further rethought with regard to the transboundary impact of measures affecting the environment. See the inaugural speech of the Austrian Head of State before the Tenth General Conference of Austrian Jurists (Vienna, 12 September 1989) where he called for the replacement of national "solipsism", based on the absolute concept of state sovereignty, by a model of partnership in international relations.

36. See also H. Newcombe, J. Wert, A. Newcombe, Comparison of Weighted Voting Formulas for the United Nations. Preprint. Peace Research Institute: Dundas/Ont., 1970.

37. See our analysis in "The Concept of the Nation and the Question of Nationalism. The Traditional 'Nation State' Versus a Multicultural 'Community State'," in Michael Dunne and Tiziano Bonazzi (eds.), Citizenship and Rights in Multicultural Societies. Keele, 1995, pp. 44-51.