UN Charter requires amendments

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In the backdrop of a decision taken by United Kingdom to explore possibilities of legally suing China under International law for its initial cover up of the Corona Virus pandemic necessitated to explore the said subject.

The remedy available against the violation of any convention is to approach international court of justice or make a complaint to the security council of United Nations.

Chapter-IV of the United Nations Charter relates to constitution of the general assembly, Chapter-V relates to constitution of security council, Chapter-IX relates to international economic and social cooperation which includes social health and observance of human rights. Chapter-XIV pertains to the constitution of the International Court of Justice.

International court of justice is principal judicial organ of the United Nations which functions as per ‘Statute Of International Court Of Justice’. Chapter – I of the statute pertains to the organisation of the court. The court shall consists of 15 members, no two of whom may be nationals of the same State. The members shall be elected by the general assembly and by the security council.

Chapter – II pertains to the ‘competence of the court’. Article 35 confers power upon the court to decide a dispute with regard to its jurisdiction in a particular matter. Article 34 of the said Chapter stipulates that only ‘States’ may be parties in cases before the court. Chapter-III contemplates procedure.

The official languages of the court shall be French and English. The procedure shall consists of two parts (1) written and (2) oral. Chapter – IV confers power to give advisory opinions. The court may give an advisory opinion on any legal question at the request of whatever body may be authorised by or in accordance with the Charter of the United Nations to make such a request.

 Article 94 of Chapter-XIV stipulates that all the members shall comply with the decision of the international court of justice and in case if any party fails to 18 comply with, the security council may take a decision with regard to the measures to be taken to give effect to the judgment. Which means that ultimately it is the security council which has got power to enforce the judgment of the international court of justice.

The United Nation Security Council also has power to investigate the complaints and also enforce sanctions if it is found that any State has violated 1972 Convention. The Security council can take action to maintain or restore international peace or security under Chapter –VII of the United Nations Charter. Sanctions measures under Article 41 of the UN Charter encompass a broad range of enforcement options viz. economic, trade, travel, financial or commodity restrictions.

Even if the International community is able to get a favorable judgment from the international court of justice claiming damages, the question is whether United Nation Security Council is effective in taking action. Post second world war fifty one (51) States signed a Charter to create United Nations on 24th October, 1945.

League of Nations founded after the first world war in 1920 was replaced by United Nations after the second world war. United Nations currently has about 193 member states. The number of total members of United Nation Security Council is 15. Five are permanent and rest are temporary. The five permanent members of the United Nation Security Council i.e., China, France, Russia, UK and USA have power ‘to veto’ any ‘substantive resolution’.

 Article 27 of the United Nation Charter confers power upon the permanent members to block any resolution by casting a negative vote which is called a ‘veto power’. Article 27 (3) of the UN Charter establishes that all substantive decisions of the Security Council must be made with ‘the concurring votes of the permanent members’. The permanent members have been using the said power to defend their national interest and foreign policy.

Post-cold war new trends in the usage of the veto power by the different permanent members have emerged. Most of the instances relate to conflicts in third world countries wherein permanent members have respective vested interests. In 2005 world summit, the high-level panel on threats, challenges and change called on which ‘the permanent members, in their individual capacities, to pledge themselves to refrain from the use of the veto in cases of genocide and large scale human rights abuses.’

Several efforts were made by small and medium sized States for putting constrains on the use of the ‘veto’. A code of conduct was formulated for member States regarding security council action against genocide, crimes against humanity and war crimes. It is meant to encourage decisive actions by council in this regard. Ironically all the permanent members except Russia to some extent are affected by the outbreak of Corona virus. If we are convinced that China has suppressed certain information with regard to the Corona virus, the remedy is to file a claim before the international court of justice or a complaint to the United Nation Security Council.

China is also bound by the International Health Regulations 2005. The said regulations have been framed by the world health organization. Article 2 of the said regulation states that the purpose and scope of the regulations which is to prevent, protect against, control and provide public health response to international spread of disease in vague that are commensurate with and restricted to public health risk and which avoid unnecessary interference with international traffic and trade.

 Article 6 of the said regulations also create an obligation upon a state party to communicate to WHO timely, accurate and sufficiently detailed public health information available to it relating to any disease available to it which pertains to any spread of disease and the health measures employ. Article 10 & 11 empower WHO to make verifications and gather information.

Article 12 of the said regulation empowers WHO to determine a public health emergency of international concern. 20 But obviously no further action would be taken since one of the permanent members would block the same by exercising veto power. It is not known as to whether the code of conduct would be adhered to by the three other permanent members i.e., USA, China and Russia.

It’s time to rethink and amend the United Nations Charter to facilitate suitable action against the States responsible for such calamity. The United Nations Charter has been devised only to protect the interest of its five permanent members which now is a major impediment to take action. It is time that any of the permanent members initiate steps in this direction to protect the international community or else the very existence of United Nations would be of no use.

Global interdependence demands that we must live with each other in harmony, human beings need rules and constrains. Ethics of the minimum standards that make a collective life possible. Without ethics and self-restrain human kind would revert to the survival of the fittest. In this context there is a requirement to amend the UN Charter.

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Chittarvu Raghu

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