The following article was published in the June 2024 issue of the International Review of Contemporary Law, the journal of the IADL, focusing on the 77th anniversary of the United Nations Charter.
Preliminary note
Currently, there is an intense (I would say unprecedented) worldwide movement to avoid human extermination and the destruction of Planet Earth.
Underlying this are feelings of insecurity, instability, suffering due to the harmful material conditions of everyday life, lack of confidence for a better future and a growing tendency towards dehumanization.
Presently, a war, marking the aggression of one country by another (Russia -Ukraine) is being waged, with all the horrors it contains. There appears to be no negotiations to put an end to it and no expectation that there will be any time soon. There are also other upheavals in the world. The conflict in the middle east between Israel and Palestine has recently exploded with emphasis on utter disobedience to UN Resolutions. How far can the actual catastrophic situation in Sudan go? Going back in time, the second half of the last century was rich in war, with interventions and regional conflicts among numerous countries throughout the world, wherein negotiation or peaceful attempts to settle them were ignored. The tragedies which have occurred in Iraq, Libya, Syria, Southern Sudan, Democratic Republic of Congo, Somalia and Burundi, Yemen, Western Sahara, Rohingya people in Myanmar have had consequences which linger even to this day. The refugee problem and its everlasting circle of distress and, frequently, death, seems to be a direct consequence of the insecurity, which the world is dipped into, due to selective racial/religious/social discrepancies or simply the scourge of political intolerance. The much-discussed issue of climate change, apart the greenhouse effect, seems to also be linked to the insanity and greed of Nations, which years ago had vowed to respect humanity.
In the meantime, miraculous solutions to create a better world are forwarded, but they have never known any practical fulfillment – being mere good intentions of style, they have led to nothing. When, in mid-January 2023 the UN Secretary General said that there are no conditions for negotiations concerning the Ukrainian War, it was a sheer demonstration of the incapacity of this unique international organization to fulfill the objectives it was designed to.
Are the world and humanity destined to be a stake of “homo homini lupus”?
The UN Charter was enacted in the aftermath of WWII and entered into force on 24th Oct. 1946. More than a pledge of Nations for a peaceful coexistence, the document expressed the profound longing and wishful expectation of the Peoples of the World, for dignified human living, meaning real peace and permanent security. As such, rules held necessary were elaborated as tools to achieve this longing for a decent living and human respect.
The Charter is made up of XIX Chapters – tracing the main targets to be achieved, among which one may distinguish the “Peaceful Settlement of Disputes”; “Regional Arrangements”; “International Economic and Social Council”; “Declaration Regarding non – Self- Governing Territories; “International Trusteeship System”; and “The International Court of Justice”. Three key-bodies were established – the “General Assembly”, the “Security Council” and the “International Court of Justice” – each one with precise purposes and aims, decisions and deliberations – “Purposes and Principles”- to be achieved by adequate “Action with respect to threats to the Peace, Breaches of Peace and Acts of Aggression”.
The world had just overcome a war, during which the horrific crimes of the Holocaust and others, were committed. The effects of human suffering and that of material destruction were felt worldwide. The longing for peaceful existence with human respect and dignity was the message that came from every corner of the world. The governments of the world captured this heartfelt message and transformed it into a written document- The Charter, a treaty that the signatories are bound by, containing the pledge and guarantee that henceforth the Nations should and would respect human nature in all its aspects.
The 21st century is not the 20th. It is well known that war is auto destructive and irrational. There are no justifiable wars. War is, itself, a contradiction – it is sufficient just to see hospitals and wards in full use during armed conflicts, preparing the wounded to proceed to the battle front in the sense of “flesh for the cannon”! I’m sorry to put this issue in such a horrific way, but this is the reality. And here is the main reason why the Charter, expressing the anxiety of the Nations, expressing the will of its peoples, required dialogue and negotiation in solving inter-state(s) disputes.
So, how to explain the present-day international instability, in short, the wars and armed regional conflicts, as if the Charter were a “dead script”?
Unfortunately, it is sad to say that the Charter itself sems to contain the ingredients of its operative ineffectiveness. For example, the Veto privilege for permanent members of the Security Council has no reason to exist today. If a democratic mindfulness is to prevail, then the motto – one country, one vote – is the answer.
On the other hand, congresses, summits, agreements, pacts, conferences and other movements take place honoring the Charter, in order to make Planet Earth more livable. The reality we have witnessed so far is that little has been achieved for this goal. But promises are not sufficient, as there are no shortage of protests to prove the vacuity of those achievements and their almost zero value. For what reason?
If responsibility is to be placed, it involves particularly those who hold power. Similarly, it is assumed that the phenomena that tear up and destabilize life in the various countries, and accordingly are felt by the people, are well known to the citizens of the world, not only by those who suffer but also, by those who observe the situation, however powerless to obviate it. The citizens of the world know the origin of the menace and to whom to attribute it.
In world events, each participant is limited by the guidelines he (she) takes from his (her) government. Thus, he (she) does nothing but represent the political and economic interests at a national level – that is to say, that everything is influenced by the defense of the respective industrial productivity in a framework of intense economic competitiveness. In short, the policy which maintains «the dense smoke of heavy blast factories” conflicts with the real interest of the people living in the streets, being drowned in the Mediterranean, suffering from famine in many African countries, being victims of apartheid, subdued to the prejudice of economic considerations, physical defects, religious fanaticism, and personal prejudice due to lack of climate protection.
If responsibility is to be placed, it should involve those who hold power. Similarly, it is assumed that the phenomena that tear up and destabilize life in the various countries, and accordingly felt, are well known to the citizens of the world who know the origin of the menace and to whom to attribute the cause.
It is high time that the Secretary General of the United Nations, world leaders and responsible organizations assume, once and for all, a pro-active stance, instead of simple critical reports, with proposals for direct action to solve situations that do not meet international standards.
The purpose of this work is not to accuse, but to contribute in a creative manner to solve this apparent fatality, r and to make life more desirable, wherever one lives.
The gradual increasing practice of destructive acts, despite all the requests and recommendations for their restraint, proceeds progressively and mercilessly. It’s devastating effects are felt daily in the span of human life, signaling final destruction in a few decades, if this ongoing practice does not stop immediately.
We are entering the 3rd decade of the 21st century and all that is done and practiced is by invoking Democracy and Civilization – an almost unanimous proclamation of Nations. But the truth is that nothing quantitatively worthy, corresponding to these values has been achieved. Practically everything is left aside, by way of purposes, alerts, grievances, laments and promises, more seemingly “crocodile tears”. In other words, gilding the pill, for each gesture apparently seeking to counteract the phenomenon of destruction and situations are generated simultaneously which neutralize that purpose.
A conceived structural image of the world divided into 2 blocs is drawn – the capitalist and the socialist ones – presently based on appetites for the predominance of an economic nature, however, with a major impact of the former. This is the reality with which we cope today. It would not be so if each country confined itself to the economic development of its own people and in a rational sharing of the surplus of its wealth with other countries. But if this occurred the Bloc policy would be useless! So, the big question is who profits from this policy?
The Ukrainian War, the Middle East, other undeclared wars and the violent frictions elsewhere in the world, reflect this fictional existence of Two Blocs, driven by the goal of political and economic predominance. The only way to animate economic production is through the highly profitable arms industry.
In order to justify this state of things, different theories abound, destined to maximize dangers. In the long run they are nothing more than corroborative. details or simplistic attempts to justify what is unjustifiable. Everywhere, movements and protests abound, against the instability of life affecting all countries, their populations living in permanent insecurity and emotional tension, produced by real regional conflicts and the threat of war that can unexpectedly arise.
What To Do? That is the question.
If the Charter of the United Nations is expected to contribute to solving the problem of human survival with dignity, it is high time to make effective use of the instruments it is endowed with, stripped of its self-imposed restrictions or limitations, such as: the express endorsement by all Nations of the purposes, principles, institutions and methods of the UN.
Article 5 – the right to suspend from the exercise of rights by a member against which preventive or enforcement action has been taken; article 6 – a provision of expulsion of a member which has persistently violated its principles; article 11.2 – recommendation to a non-member State to comply with the maintenance of peace; article 13.1.3 – promote fundamental freedom, irrespective of race, sex, language and religion; article 19- providing for the payment of financial contributions; article 25- accepting and carrying out the decisions of the Security Council; article 26- formulation with the collaboration of the Military Staff Committee plans for regulation of armaments; article 27.3 – which should be eliminated –references, “Concurring “votes of permanent members; article 33 – settling disputes by the use of channels of mediation, conciliation, arbitration, judicial settlement or /and other arrangements; article 34 – investigation by the Security Council of any dispute or situation that may lead to international friction or instability; article 39- action of the Security Council against threat to peace, breach of peace or act of aggression; article 42- measures to be adopted by the Security Council, such as blockades, demonstrations, or other operations; article 44 – the use of force by the Security council; 46 -Plans for the application of armed forces by the Security Council with the assistance of the Military Staff Committee; article 47.2- the Military Staff Committee shall consist of the Chiefs of Staff of the permanent members of the Security Council This should be changed to which should comprise Chiefs of Staffs of non-permanent members; article 64- the Economic and Social Council may take steps to gather information from specialized agencies and make reports to the GA; and article 92- to be introduced – The jurisdiction of the International Court of Justice extends its jurisdiction to all members, without exempting any situation stated in the present Charter.
As has already been mentioned, (and I insist again), in this process of appreciation we will avoid the temptation to criticize any organization, or achievement, or personality, or entity involved in this matter, because what is intended, is not to demolish or shunt off whatever has been positively done, but to achieve a proactive posture in solving the problems that afflict threatened humankind. Here they are:
1) Extinction of Military Blocs (War Blocs)
Military Blocs or Pacts assume a provocative nature, fostering a permanent state of regional or global political tension. They strike at the essence of the Charter. This policy is sustained by the perception that humanity is inherently aggressive. Another problem with the Bloc policy is that it becomes contagious as can be proved by the proliferation of these systems throughout the world.
Without ever jeopardizing the existence of a military apparatus for purely defensive purposes of a country, it should be stressed that presently, the way it is practiced, drags at the free choice of an involved country, as far as its sovereignty is concerned.
No country or people wants war. Nobody wants to be killed. The intellectual evolution of human society, despite difficulties of daily life, is averse to any war/conflict. War breeds destruction, misery, hunger, disgrace, and refugees. The recent past has shown that wherever war took place, it never solved any of the problems that it was waged to solve. War, or its threat, always has an economic motivation– disguisedly proclaimed as ethical, religious, political or ideological — for its acceptance and its message to be more appealing.
The mere existence of military blocs, requiring astronomical sums of money, assumes an authentic forum of paroxysm. Thus, the maintenance or the creation of new military blocs only contributes to worldwide disgrace.
Where does the commitment for the need of Military Blocs lie? I defy any Nation to designate any article of the Charter that sustains Military Blocs.
Had article 46 of the Charter been enforced, perhaps the fate of the aggression in Ukraine would be different- for the better. The same could be said concerning the recent situation in Sudan.
2) The Fallacious Terminology – “Poor Countries / Rich Countries”
Badly nourished children marked by the sign of misery, people fleeing in despair, insecurity of life and violence generated in the aftermath of provoked wars, migratory movements of uncertain fate, for many people all ending in an ill-fated or murderous dashing of hope. This is one of the principal visible consequences of the willful way in which countries, mostly colonized ones, are seen.
The factors generating wealthy countries have not always been marked by reciprocity. There are no rich or poor countries by fate. Historically, the mercantilist activity of the 15th century, (which, later, degenerated into colonialism and then neo-colonialism), gave birth to dominant and dominated (colonized) countries. This has negatively affected the productive structure of the exploited country, resulting in unbalanced economies.
Therefore, this silent dichotomy – dominant country /dominated country – being the one that best conforms to today’s reality (despite the apparent political ‘independence’ of the exploited countries) must specifically be eliminated by the Charter, giving birth to a real equality among all Nations because all countries have the right to be self-reliant and, as such, rich. It is high time that each Nation take full responsibility as a member of the United Nations in furtherance of its due purpose, and in turn demand the fulfilment of the principle of the sovereign equality of all countries (article 2.1), following the procedure of one member-one vote (article 18).
3) Suppression of Political Involvement of Religion
The upheavals that religious problems have posted in the domain of the United Nations is well known and felt. Religious prejudice, discrimination or persecution, even when some Nations proclaim themselves secular, is patent. The problem becomes serious in some countries when clashes and fights take place between sects. Finally, this unruly behavior reaches its zenith when theocracies, notwithstanding their discrimination towards other religions claim, a democratic status.
The influence of religions in human societies is highly touchy. It escapes rational control of individual or group behavior when metaphysical considerations mingle with the real act of living. However, this perspective may be acceptable when not fanaticized or reduced to a social level; but certainly not when it can generate acts of the purest irrationalism, giving rise to instability, such as communalism, fanatic destructive riots, and above all when it comes to sheer denegation of basic human rights. The big issue involved herein is not religion, but the disrespect or persecution concerning basic human rights (cfr. Article 18 of UDHR).
To avoid friction on such issues, an approach to the Heads of theocratic States belonging to the United Nations, including the responsible religious dignitaries and advisors – generally the real catalyzers of religious persecution – of the respective regional and local communities should be considered. Examples are those rehearsed on 1st February 2017 and held on 14th July 2017, under the auspices of the Secretary General of the United Nations. The United Nations can always intervene “proprio nomine” to prevent any local (if necessary), bilateral or multilateral conflict in general terms.
4) For Rational and Ethical Economic Development
For humankind to exist and subsist there must be successful production of goods. But produce! How? How much? These questions determine the polarity of consumption and human need.
The history of social evolution tells us that world economic domination leaves the path for its hegemonic ambitions almost freely opened.
Overproduction by the highly developed countries manages to increase the state of dependence and control they impose on other countries, thus establishing the necessary state of «tension» to maintain this dominating control.
It is interesting to note how these trends affect specifically the dominated nations (as mentioned in condition 2). Having adopted the economic pattern of the dominant nations, the policy dictated by the local elites ends up victimizing their own communities, controlling them through a policy of exploitation (lack of infrastructure, education and other difficulties in general).
Nuclear power plants, industrial furnaces and their smoking chimneys, deforestation, the uncontrolled extraction and exploitation of the subsoil are some of the most prominent activities included in this program.
Chapters IX and X of the Charter, starting from article 55 onwards tackle the interest and importance of this whole issue, whilst considering it a precondition of social stability and higher standard of living, by calling for the joint action of all countries and planning specialized agencies for this purpose – all this under the leadership of the Economic and Social Council. However, The Charter should be more realistic and transform its timid recommendations into more effective forms of action, namely, negotiations and coercive directives, all under strict surveillance.
5) Protecting Nature Against Harmful Climate Change
The world is full of protests related to climate change, a phenomenon that endangers life in general, with particular emphasis on the survival of animal life. Undoubtedly, the minimum conditions of habitability for the human species are at stake.
Geologically speaking, the planet Earth has always experienced climate change. Natural catastrophes, the nutation movement (the variation over time of the orientation of the axis of rotation of the Earth) or the Milankovitch cycles (the angle of the earth’s axis in relation to the sun) have existed as long as the earth has.
However, the basic question is not that of the existence of cataclysms, but a) the frequency, the intensity and the speed with which they have been occurring and b) humankind’s increasing inability and responsibility to nullify their disastrous effects.
To raise awareness of this cause/effect relationship, it is sufficient to pay attention to phenomena basically caused by humans such as: the exaggerated increase of carbon dioxide in the atmosphere and the consequent greenhouse effect; the evaporation generated, not only from storms, but, in a certain sense, contradictorily, from droughts taking place elsewhere; the progressive extinction of wildlife; the greater frequency and severity of hurricanes and tornadoes; ice melting at the poles; the intense rainfalls; floods; tsunamis; volcano eruptions; landslides; rising seawater levels; deforestation and so on.
The impact of the uncontrolled and unmeasured extraction of oil and natural gas from the subsoil of geological layers, including the earth’s mantle and seismic waves, is yet to be measured. For example, it is sufficient to see how the excess of groundwater consumption, through wells, has given way to the drying of lakes.
The assessment of this problem is essentially based on four poles for reference: 1st – political will and purpose; 2nd – the availability of the industrial sector, 3rd – a supervisory instrument with imposing power, and 4th – public support.
It is well known that the greatest threat to a balanced human life stem from humankind’s own actions. Nothing positive will be feasible if the nations of the world, with particular emphasis on the more industrially developed ones, do not harmonize and agree definitively to achieve the parameters scientifically assumed as a ‘minimum’ for healthy human living.
In this domain, the fears expressed by the Secretary General of the United Nations are of reduced or zero effectiveness. The mere promises made by the Political Powers of the various nations assume no value.
Undeniably the United Nations, considering its purpose for a better world, has a crucial position in this domain. Not only that the atmospheric conditions are getting increasingly worse, but the big question is what will be left for future generations. It is essential that a proactive and serious political will supersede economic domination, through coercive determinations and setting sustainable limits on the dangers ahead. It is high time that regulatory bodies specifically created by the United Nations control globalized development, bringing it to a sustainable level of utilitarian use.
6) Respect for the Local Existential Values (cultural, political, religious, social and others)
In due process of aligning the conditions for a sustainable human life, the mutual and reciprocal dependence of the seven conditions herein contained become increasingly evident, up to a point that one may turn useless without the implicit intervention of others. Here’re some hints: – does the deforestation process in the Amazon respect the rights of the Amerindians? – Do the «state of tension» and wars contribute to land desertification, poverty, migration and the economic dependence of the victimized country? Doesn’t the disrespect of cultural and religious beliefs contribute to armed conflicts and barbarism, precisely more devastating and deadly when countries and the population are economically needy?
Underlying these postures there is a conductive thread that stirs these gestures. It is the ambition, the anxiety for conquest and territorial appropriation (the so-called ‘vital space’) and economic dominance.
This framework ostensibly violates the principles, the purposes and the aims that the Charter solemnly declares.
In this context, economy and religion merit particular attention. If, historically, there can be a certain understanding of the excesses committed on their behalf, today, their projection escapes the values achieved by human intelligence – all these guided by canons of coexistence, solidarity and humanism.
7) Fostering Knowledge and Valuing Nature Through Scientific Supremacy
Knowledge concerning our planet is meager. For instance, it is still to be known why and what is the «timing» of the tectonic plate’s movements, generating earthquakes and the activation of volcanoes. The bottoms of the seas and oceans are yet to be explored. The impact of a meteorite can destroy the planet or make its habitability intolerable.
This demonstrates that this condition of the planet Earth cannot be exclusively attributed to human action and that there are factors from nature and the universe, somewhat external to human will, which can weaken the planet completely, to an extent where life becomes impossible or extremely difficult.
But human action can shape in a positive manner this condition, relieving it from the fear of a dreadful cataclysm. Proactive activity in this regard must be carried out by a) the governments themselves and support must be given to b) NGOs actually engaged in this task.
Scientific research in all fields of human activity is extremely mandatory and the primary priority. The CHARTER is a superior guideline for success.
Remarks
The saying goes that where there is a will there is a way. This is precisely the case.
From Ethics to Solidarity, from Selfishness to the act of Sharing, are the 3 versus 1 MARKERS that can pave the way for the productive result.
(ETHICS): Can there be ethics in politics? It is basic for anyone to respect human life and nature. If so, destroying to rebuild is unethical. For this marker to be relevant, it is essential that its agent shore up his actions with the values which underlie it. The natural right to human coexistence cannot legitimize actions that contain the ingredient for the destruction of the species. War is therefore anti ethics and so are the impositions of economic sanctions.
(SOLIDARITY): Solidarity is not charity. The latter presupposes a feeling of superiority with relation to the receiver. The former functions on the basis of equality. In this paradigm, the act of solidarity, particularly at the political level, assumes a posture of continuity, ethically founded, covering all the situations that demand it. A world where solidarity among communities and nations comes into existence is worth living in.
(SELFISHNESS): Much of human history has been marked by acts of egocentric voluntarism. All phenomena of exploitation or conflict arise from this individualistic inspiration. To what extent can a country demand the defense of its interests versus another country? The answer is simple: As far as this defense respects the sovereignty of that country, guided by the nuance of international law and the basic principles of communal coexistence.
(SHARING) ‘Sharing and not sanctioning’ – will have to be the motto of the Charter. The world presents us with two macroeconomic systems – capitalism and socialism, with their respective nuances. It is up to the political institutions of each country to adopt adequate modality in accordance with the demands of the peoples and communities that compose them.
That the fundamentals of these two systems are distinct does not legitimize any attempt to eliminate or dominate the other (system). In the name of what ethical principle can one destabilize the existing minimum balance, when there is no measure to ensure the supremacy of one system over the other?
Sharing is not imposition. Sharing implies collaboration between the donor and the receiver.
Conclusion
The world as it presents itself is predominantly contrary to the principles and objectives traced by the Charter of the United Nations. We are in the year 2023. So far, countless summits, conferences, meetings, agreements, seminars and other gatherings under the auspices of the Charter have taken place. But war still prevails, tens of resolutions of the Security Council are disrespected by member states. Arbitrary or unilateral economic sanctions violating human rights prevail, and provocative activity among nations most of them with common frontiers, with the risk of skirmishes, have turned into real conflicts.
The Charter was written when humanity was going through a dreadful, unstable life and nations were seeking a less precarious existence. The result was that the Charter contained in itself the seeds of its own vulnerability – the diktat of mere recommendation, the almightiness of the Veto privilege and the impunity of the countries that disregard the respect due to the organization and do not contribute to its position of power. These are the reasons for the failure of the results expected from the Charter.
The 3rd decade of the 21st century demands that the Charter be respected in all its dimensions, its principles and objectives, because it continues to be a powerful document for the survival of humanity. But the force of its actuality can only advance with clear proactive perspectives of the countries it is composed of and their governments and organizations. Cloudy minds, ambiguous positions or irresponsible behaviors can only make inoperative or damage the purposes for which the United Nations was established.
In short, the United Nations has full capacity to be a supreme organization to put order in this despaired world in a civilized way. Notwithstanding that something positive has been achieved by the organization over its 77 years, some small details are still lacking in the drafting of some articles, which should be revised to make them more explicit, determined and modern.
Solutions for the near future, such as, fostering an urgent special Session of the United Nations, with the presence of the all nations of the world and the non-autonomous territories at the highest level, solemnly pledging to respect the Charter and the decisions of the Security Council; fixation of a deadline for the Members to comply with the Resolutions of the Security Council under the risk of sanction, including expulsion; absolute prohibition of economic blockades; absolute prohibition for any country to start any active military aggression without the knowledge and consent of the Security Council; the acceptance by all nations of the decisions of the International Court of Justice and the crimes against humanity not controlled by a statute of limitations.
Without putting aside, the legal amendments to be introduced in the Charter as suggested above, it is the political standing of nations (members or not of the UN) that counts for a peaceful and healthy world, and the fundamental mandatory posture of the World Organization in intervening proactively whenever and wherever vital instability arises.
And the most serious thing is that there’s no plan B to talk about!
It’s worth a try.
Lisbon, Portugal-May 2023
António Bernardo Colaço
(Justice of the Supreme Court of Justice – Portugal)
APJD – Associação Portuguesa de Juristas Democratas
All articles published in the International Review of Contemporary Law reflect only the position of their author and not the position of the journal, nor of the International Association of Democratic Lawyers.