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A Keen Observer of the International Rule of Law? International Law in China's Voting Behaviour and Argumentation in the United Nations Security Council

  • PHIL C. W. CHAN

Abstract

Given the centrality of law in the creation, decision-making, and impact of the United Nations Security Council, the deliberative discourses among Security Council Members, and the necessity for China to articulate its reasons publicly for its actions within the Security Council, the roles that China plays within the Security Council illuminate and clarify its approaches to the current international legal order. This article explains how law serves as a constitutional–normative framework within which the Security Council must function, followed by a discussion of how the Security Council in turn may serve as a locus of deliberative discourses that delineate, influence, and constrain its members’ state behaviours. It challenges the view that law plays a limited role on matters of international security by exploring China's voting behaviour in the Security Council and the arguments that it has proffered. It also discusses how China may respond to a draft Security Council resolution aimed at its conduct other than simply by vetoing it, and how it has taken a proactive role in the maintenance of international peace and security through the Security Council.

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1 Jervis, R., ‘Security Regimes’, in Krasner, S. D. (ed.), International Regimes (1983), 173; K. Waltz, Theory of International Politics (1979), 126–30.

2 Koskenniemi, M., ‘The Place of Law in Collective Security’, (1995–6) 17 Michigan Journal of International Law, 455, at 480.

3 Under Article 23(1) of the United Nations Charter, it falls upon the United Nations General Assembly to elect ten members of the United Nations to be non-permanent members of the Security Council, ‘due regard being specially paid, in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization, and also to equitable geographical distribution’. Article 23(2) states that a non-permanent member shall be elected for a term of two years, and may not be eligible for immediate re-election. Currently, three non-permanent members are elected from among African states and two from among Asian states (with the proviso that one of these five non-permanent members must be an Arab state alternately in Africa or Asia), two from among Latin American and Caribbean states, two from among Eastern European states, and two from Western European and other states (such as Australia and Canada).

4 Ibid., Art. 24(1). Although the responsibility conferred on the Security Council for the maintenance of international peace and security is primary (and thus not necessarily exclusive: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, 136, 148–9), under Article 39 of the Charter it is the Security Council alone that has the competence and capacity to ‘determine the existence of any threat to the peace, breach of the peace, or act of aggression’ and to ‘make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security’. Security Council determinations, recommendations, or measures are not justiciable. In his separate opinion in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Order of 13 September 1993, ICJ Reports 1993, 325, 439, Judge ad hoc Lauterpacht stated that while there are legal constraints on the Security Council, ‘there can be no less doubt that it does not embrace any right of the Court to substitute its discretion for that of the Security Council in determining the existence of a threat to the peace, a breach of the peace or an act of aggression, or the political steps to be taken following such a determination’.

5 United Nations Charter, Art. 12(1).

6 Ibid., Art. 24(1).

7 Ibid., Art. 25.

8 The Prosecutor v. Dusko Tadić, Appeal on Jurisdiction, IT-94–1-AR72, 35 ILM 32 (1996), para. 29.

9 Chesterman, S., ‘An International Rule of Law?’, (2008) 56 American Journal of Comparative Law 331, at 351.

10 Buchanan, A. and Keohane, R. O., ‘The Legitimacy of Global Governance Institutions’, (2006) 20 Ethics & International Affairs 405, at 434.

11 See Talmon, S., ‘The Security Council as World Legislature’, (2005) 99 American Journal of International Law 175.

12 United Nations Charter, Art. 103.

13 Caron, D. D., ‘The Legitimacy of the Collective Authority of the Security Council’, (1993) 87 American Journal of International Law 552, at 557.

14 T. M. Franck, The Power of Legitimacy among Nations (1990), 150.

15 Ibid., at 24.

16 Fassbender, B., ‘Uncertain Steps into a Post-Cold War World: The Role and Functioning of the UN Security Council after a Decade of Measures against Iraq’, (2002) 13 European Journal of International Law 273, at 293.

17 Koskenniemi, supra note 2, at 475.

18 Ibid., at 489.

19 ICJ Reports 1947–8, 57.

20 Ibid., at 64.

21 H. Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (1964), 294.

22 Tadić, supra note 8, para. 28.

23 ICJ Reports 1971, 16.

24 Ibid., at para. 118 (emphasis in original).

25 Gill, T. D., ‘Legal and Some Political Limitations on the Power of the UN Security Council to Exercise Its Enforcement Powers under Chapter VII of the Charter’, (1995) 26 Netherlands Yearbook of International Law 33, at 71.

26 Orakhelashvili, A., ‘The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions’, (2005) 16 European Journal of International Law 59, at 68.

27 Application of the Convention on the Prevention and Punishment of the Crime of Genocide, supra note 4, per Judge ad hoc Lauterpacht, 440 (sep. op.).

28 Statement of China in the Sixth Committee of the Sixtieth Session of the United Nations General Assembly, UN Doc. A/C/6/60/SR.11, 23 November 2005, para. 53. However, consensus is that no such liability exists under international law: see R. Higgins, Report to Institut de droit international, 66-I Yearbook of Institut de droit international (1995), 375; Resolution of Institut de droit international on the Legal Consequences for Member States of the Non-Fulfillment by International Organisations of their Obligations towards Third States, Session of Lisbon, 1 September 1995.

29 Liang, Y.-L., ‘The Settlement of Disputes in the Security Council: The Yalta Voting Formula’, 24 (1947) British Year Book of International Law 330, at 332–3.

30 United Nations Charter, Art. 1(1).

31 Ibid., Art. 2(3).

32 See Higgins, R., ‘The Place of International Law in the Settlement of Disputes by the Security Council’, (1970) 64 American Journal of International Law 1, at 16.

34 Ibid., at 3, citing Articles 33 and 36(3) of the United Nations Charter.

35 International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (2001), 53.

36 Following debates within the Security Council, consensus has been reached that a Permanent Member's voluntary abstention or absence, as opposed to compulsory abstention required where the Permanent Member is a party to a dispute in question, does not constitute a veto: see Liang, Y.-L., ‘Abstention and Absence of a Permanent Member in Relation to the Voting Procedure in the Security Council’, 44 (1950) American Journal of International Law 694.

37 While France and the United Kingdom arguably have ceased to be major powers in their own right, they possess substantial influence within the European Union and may serve as the conduit through which the European Union en bloc asserts within the Security Council its economic and political power and its policies on matters such as human rights, democracy, self-determination, and the maintenance of international peace and security. France also continues to have significant influence in many African states through its relations with its former colonies, as does the United Kingdom through its leadership role in the Commonwealth of Nations.

38 Krisch, N., ‘Legality, Morality and the Dilemma of Humanitarian Intervention after Kosovo’, 13 (2002) European Journal of International Law 323, at 334.

39 Joyner, D. H., ‘The Kosovo Intervention: Legal Analysis and a More Persuasive Paradigm’, (2002) 13 European Journal of International Law 597, at 608.

40 Lim, C. L., ‘The Great Power Balance, the United Nations and What the Framers Intended: In Partial Response to Hans Köchler’, (2007) 6 Chinese Journal of International Law 307, at 313 (emphasis in original).

41 Padelford, N. J., ‘The Use of the Veto’, (1948) 2 International Organization 227, at 228–9.

42 A. Buchanan and R. O. Keohane, ‘The Legitimacy of Global Governance Institutions’, in A. Buchanan, Human Rights, Legitimacy, and the Use of Force (2010), 105, at 119.

43 Finnemore, M., ‘Fights about Rules: The Role of Efficacy and Power in Changing Multilateralism’, (2005) 31 Review of International Studies 187, at 195.

44 Caron, supra note 13, 560.

45 Vagts, D. F., ‘Hegemonic International Law’, (2001) 95 American Journal of International Law 843; see also Alvarez, J. E., ‘Hegemonic International Law Revisited’, 97 American Journal of International Law (2003), 873.

46 Hurd, I., ‘Legitimacy, Power, and the Symbolic Life of the UN Security Council’, (2002) 8 Global Governance 35, at 42–3. See also Feuerle, L., ‘Informal Consultation: A Mechanism in Security Council Decision-Making’, (1985) 18 New York Journal of International Law and Politics 267.

47 Woods, N., ‘Good Governance in International Organizations’, (1999) 5 Global Governance 39, at 50 (emphasis in original).

48 Caron, supra note 13, 558.

49 Aznar-Gómez, M. J., ‘A Decade of Human Rights Protection by the Security Council: A Sketch of Deregulation?’, (2002) 13 European Journal of International Law 223, at 226, citing the positions of Security Council Members when adopting Resolution 688 (1991) regarding Iraq (UN Doc. S/PV.2982, 5 April 1991), Resolutions 770 (1992) and 787 (1992) regarding Bosnia and Herzegovina (UN Doc. S/PV.3106, 13 August 1992; UN Doc. S/PV.3137, 16 November 1992), Resolution 794 (1992) regarding Somalia (UN Doc. S/PV.3145, 3 December 1992), and Resolution 917 (1994) regarding Haiti (UN Doc. S/PV.3376, 6 May 1994).

50 Falk, R. A., ‘The United Nations and the Rule of Law’, (1994) 4 Transnational Law and Contemporary Problems 611, at 628.

51 Marks, S., ‘State-Centrism, International Law, and the Anxieties of Influence’, (2006) 19 Leiden Journal of International Law 339, at 347.

52 Falk, supra note 50, 627.

53 Darby, P., ‘Rolling Back the Frontiers of Empire: Practising the Postcolonial’, 16 (2009) International Peacekeeping 699, at 708.

54 M. Shaw, Theory of the Global State: Globality as Unfinished Revolution (2000), 200. Shaw, ibid., at 216, explains that ‘[i]t is clear that the UN depends for both its resources and its political direction on the West, and that the united West is mostly able to mobilize the UN system to its own purposes. Despite the deeply ambiguous relationship between the main component of the West (the USA) and the UN, it is difficult to conceive of either without the other. The mutual dependence of Western power and the UN system is fundamental. Major and minor exercises of Western military power have been legitimated through the UN; the UN has not authorized or undertaken any significant actions against Western interests’.

55 United Nations Department of Peacekeeping Operations, United Nations Peacekeeping Operations: Principles and Guidelines (2008).

56 Ibid., at 36.

57 See, e.g., Cooper, N., ‘On the Crisis of the Liberal Peace’, (2007) 7 Conflict, Security and Development 605; Pugh, M., ‘Accountability and Credibility: Assessing Host Population Perceptions and Expectations’, in de Coning, C., Stensland, A., and Tardy, T. (eds.), Beyond the New Horizon (2010), 56.

58 O. P. Richmond, Peace in International Relations (2008), 17. As Shen Guofang, China's deputy permanent representative to the United Nations, stated: ‘Poverty leads to social instability, which will in turn be a threat to peace and security at the national and even regional levels . . . In order to uproot the causes of conflicts, we must help developing countries, especially the least-developed countries, to seek economic development, eradicate poverty, curb diseases, improve the environment and the fight against social injustice . . . The early realization of the disarmament, demobilization and reintegration of ex-combatants and the promotion of the repatriation, resettlement and the economic recovery of refugees and displaced persons constitute the short-term objectives of peacebuilding. The long-term objectives, however, are the eradication of poverty, development of economy as well as a peaceful and rewarding life for people in the post-conflict countries and regions’: Statement of Ambassador Shen Guofang, Deputy Permanent Representative of China to the United Nations at the Security Council on the Topic of ‘Peace-Building: Towards a Comprehensive Approach’, 5 February 2001, as quoted in Lei, Zhao, ‘Two Pillars of China's Global Peace Engagement Strategy: UN Peacekeeping and International Peacebuilding’, (2011) 18 International Peacekeeping 344, at 353.

59 Johnstone, I., ‘Legislation and Adjudication in the UN Security Council: Bringing down the Deliberative Deficit’, (2008) 102 American Journal of International Law 275.

61 Ibid., at 278 (emphasis in original).

62 Risse, T., ‘“Let's Argue!”: Communicative Action in World Politics’, (2000) 54 International Organization 1, at 10. See also Jepperson, R. L., Wendt, A., and Katzenstein, P. J., ‘Norms, Identity, and Culture in National Security’, in Katzenstein, P. J. (ed.), The Culture of National Security (1996), 33.

63 Johnston, A. I., ‘Treating International Institutions as Social Environments’, (2001) 45 International Studies Quarterly 487, at 490.

64 Risse, supra note 62, 18.

65 Johnstone, I., ‘Security Council Deliberations: The Power of the Better Argument’, 14 (2003) European Journal of International Law 437, at 453–5.

66 Elster, J., ‘Introduction’, in Elster, Jon (ed.), Deliberative Democracy (1998), 1. See also Chaiken, S., Wood, W., and Eagly, A. H., ‘Principles of Persuasion’, in Higgins, E. T. and Kruglanski, A. W. (eds.), Social Psychology: Handbook of Basic Principles (1996), 702.

67 Thompson, D. F., ‘Democratic Theory and Global Society’, (1999) 7 Journal of Political Philosophy 111, at 120 (emphasis in original).

68 Johnstone, supra note 59, 278–81.

69 Johnstone, supra note 65, 477–8.

70 Kim, S. S., China, the United Nations, and World Order (1979), 237–8.

71 A. Chayes and A. H. Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (1998); Moravcsik, A., ‘Explaining International Human Rights Regimes: Liberal Theory and Western Europe’, (1995) 1 European Journal of International Relations 157; Young, O. R., ‘The Effectiveness of International Institutions: Hard Cases and Critical Variables’, in Rosenau, J. N. and Czempiel, E.-O. (eds.), Governance without Government: Order and Change in World Politics (1992), 160.

72 Johnston, supra note 65, at 490.

73 Thompson, A., ‘Coercion through IOs: The Security Council and the Logic of Information Transmission’, (2006) 60 International Organization 1.

74 Kent, A., ‘China's International Socialization: The Role of International Organizations’, (2002) 8 Global Governance 343, at 349–50.

75 Köchler, H., ‘The United Nations Organization and Global Power Politics: The Antagonism between Power and Law and the Future of World Order’, (2006) 5 Chinese Journal of International Law 323. Reisman, W. M. asserts that the United States’ dominance within Security Council decision-making (in public and in private) is an open and unquestionable fact: ‘The Constitutional Crisis in the United Nations’, (1993) 87 American Journal of International Law 83, at 97.

76 O’Neill, B., ‘Power and Satisfaction in the United Nations Security Council’, (1996) 40 Journal of Conflict Resolution 219, 233. Ann Kent concurs with O’Neill's analysis, and argues that within the Security Council ‘China is the most powerful state, precisely because it stands alone with a veto at an extreme policy position. Thus, “it is constantly using its veto or, rather, the threat to veto (actually or only implicitly), and so it is constantly making a difference”’: supra note 74, 346, quoting O’Neill, B., ‘Power and Satisfaction in the Security Council’, in Russett, B. (ed.), The Once and Future Security Council (1997), 70, 75.

77 O’Neill, supra note 76, 233–4. Pooling of vetoes may occasionally lead to free-riding – a permanent member might vote in favour of a draft resolution in the knowledge that its ally takes a contrary position and will veto the draft resolution, even though it privately wishes the draft resolution to be vetoed. The support of non-permanent members is also important as it instils a sense of legitimacy in a draft resolution; their disapproval of a draft resolution signifies that the draft resolution is not acceptable to states beyond permanent members.

78 Mongolia was admitted to United Nations membership on 27 October 1961 when the Soviet Union agreed to not veto Mauritania's application for United Nations membership on condition that Mongolia be admitted, and the authorities on Taiwan representing China in the United Nations relented under pressure from African states.

79 Morphet, S., ‘China as a Permanent Member of the Security Council: October 1971–December 1999’, (2000) 31 Security Dialogue 151.

80 UN Doc. S/PV.1660, 25 August 1972, 15.

82 UN Doc. S/PV.1662, 10 September 1972, para. 193.

83 UN Doc. S/PV.3730, 10 January 1997.

84 UN Doc. S/PV.3982, 25 February 1999.

85 UN SC Resolutions 678 (1990), 686 (1991), 748 (1992), 757 (1992), 770 (1992), 778 (1992), 787 (1992), 816 (1993), 820 (1993), 883 (1993), 929 (1994), 940 (1994), 942 (1994), 955 (1994), 988 (1995), 998 (1995), 1054 (1996), 1070 (1996), 1101 (1997), 1114 (1997), 1134 (1997), 1160 (1998), 1199 (1998), 1203 (1998), 1207 (1998), 1244 (1999), 1280 (1999), 1284 (1999), 1333 (2000), 1556 (2004), 1564 (2004), 1591 (2005), 1593 (2005), 1672 (2006), 1680 (2006), 1945 (2010), 1973 (2011), and 2023 (2011).

86 UN SC Resolutions 688 (1991), 776 (1992), 777 (1992), 781 (1992), 792 (1992), 821 (1993), 825 (1993), 855 (1993), 975 (1995), 1067 (1996), 1077 (1996), 1239 (1999), 1249 (1999), 1290 (2000), 1559 (2004), 1706 (2006), 1757 (2007), and 1907 (2009).

87 UN SC Res. 502 (1982); the draft resolution called for immediate cessation of hostilities between Argentina and the United Kingdom and complete withdrawal of Argentine forces from the Falkland Islands/Malvinas.

88 UN SC Res. 1249 (1999).

89 UN SC Res. 1290 (2000).

90 The Security Council in its press release (SC/6693, 25 June 1999) on its recommendation of Nauru's admission to United Nations membership stated that China explained before the formal vote that it ‘attached great importance to the desire of the Republic of Nauru for admission to the United Nations and had seriously studied its application. However, the most essential thing in the admission process was that the purposes and principles of the United Nations Charter should be complied with. New Members should comply with General Assembly resolutions and fulfil their Charter obligations. China could not support the recommendation on admission of the Republic of Nauru to the United Nations . . . At the same time, considering the long-term interests of the peoples of China and the Republic of Nauru, China would not block the resolution. [China] hoped that when the Republic of Nauru joined the United Nations, it would comply with all the resolutions, including General Assembly resolution 2758 (1971)’. Similarly, the Security Council in its press release (SC/6807, 17 February 2000) on its recommendation of Tuvalu's admission to United Nations membership stated that before the formal vote ‘the representative of China who, in the report of the Membership Committee (S/2000/70) indicated that China could not associate itself with the Committee's recommendation, said his delegation had attached great importance to the desire of Tuvalu to join the United Nations and had made a serious study of its application. A Member State of the United Nations should truly implement the obligations of the United Nations Charter and seriously abide by the resolutions of the General Assembly, which was an important basis on which to judge whether an applicant country had met the standard for membership. He reiterated that the most important thing was that the principles and purposes of the Charter should be implemented, as well as General Assembly resolution 2758. Flowing from that primary obligation, he could not support the recommendation to the Assembly for acceptance of Tuvalu's membership. At the same time, given his country's long-term shared interests with the people of Tuvalu and the strong wish of the Pacific States to admit that country, his delegation would not block the recommendation. Hopefully, he added, after joining the United Nations Tuvalu could strictly abide by the United Nations Charter and implement the relevant General Assembly resolution’. In 2002, Nauru shifted its recognition to the PRC government as the legitimate government of China, although it reversed its recognition in 2005, while Tuvalu continues to recognize the authorities on Taiwan as the legitimate government of China.

91 UN SC Resolutions 1695 (2006), 1718 (2006), and 1874 (2009).

92 UN SC Resolutions 1696 (2006), 1737 (2006), and 1747 (2007).

93 UN SC Resolutions 1547 (2004), 1569 (2004), 1574 (2004), 1590 (2005), 1627 (2005), 1651 (2005), 1663 (2006), 1665 (2006), 1679 (2006), 1709 (2006), 1713 (2006), 1714 (2006), 1755 (2007), 1769 (2007), 1779 (2007), 1784 (2007), 1812 (2008), 1828 (2008), 1841 (2008), 1870 (2009), 1881 (2009), and 1891 (2009).

94 UN SC Resolutions 1556 (2004), 1564 (2004), 1591 (2005), 1593 (2005), 1672 (2006), and 1706 (2006).

95 UN Doc. S/PV.5619, 12 January 2007.

96 UN Doc. S/PV.5933, 11 July 2008.

97 UN Doc. S/PV.6627, 4 October 2011.

98 UN Doc. S/PV.6711, 4 February 2012.

99 UN SC Res. 2042 (2012).

100 UN SC Res. 2043 (2012).

101 UN SC Res. 2059 (2012).

102 Ibid., para. 3.

103 N. Thalakada, ‘China's Voting Pattern in the Security Council, 1990–1995’, in Russett, supra note 76, 83.

104 T. J. Christensen, ‘Chinese Realpolitik’, (September/October 1996) 75 Foreign Affairs 37. See also Johnston, A. I., ‘Realism(s) and Chinese Security Policy in the Post-Cold War’, in Kapstein, E. B. and Manstanduno, M. (eds.), Unipolar Politics: Realism and State Strategies after the Cold War (1999), 261; A. Nathan and R. S. Ross, The Great Wall and the Empty Fortress: China's Search for Security (1997); G. Segal, Defending China (1995).

105 E. Voeten, ‘Outside Options and the Logic of Security Council Action’, 95 American Political Science Review (2001), 845, 846, fn. 8. See also D. Malone, Decision-Making in the UN Security Council: The Case of Haiti, 1990–1997 (1998).

106 The Responsibility to Protect, supra note 35, VIII (emphasis added).

107 A More Secure World: Our Shared Responsibility: Report of the Secretary-General's High-Level Panel on Threats, Challenges and Change (2004).

108 Ibid., at para. 201.

109 Ibid., at para. 202.

110 Ibid., at para. 201.

111 Slaughter, A.-M., ‘Security, Solidarity, and Sovereignty: The Grand Themes of UN Reform’, (2005) 99 American Journal of International Law 619, at 625.

112 Arbour, L., ‘The Responsibility to Protect as a Duty of Care in International Law and Practice’, (2008) 34 Review of International Studies 445, at 447–8.

113 Ibid., at 449–52.

114 Notwithstanding China's affirmative vote for, and Qian's participation in the drafting of, the Document, I argue that the Document does not embody, represent, evidence or contribute to state practice and, a fortiori, the emergence of any new norm of customary international law. My position is the same regarding the status of the High-Level Panel on Threats, Challenges and Change's report, supra note 107, as a matter of law (customary or otherwise). The fact that a group, however diverse, representative or eminent, of government officials and scholars meets, even under United Nations auspices, to discuss matters of international concern does not confer on any of its findings or conclusions the status of law or evince state practice, which must be proven by the existence of general, consistent and widespread practice of states accompanied by the requisite opinio juris.

115 Article I of the Convention on the Prevention and Punishment of the Crime of Genocide states that ‘[t]he Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.’

116 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, 43, 222. However, Arbour, supra note 112, omits to cite the Court's immediately subsequent statement that ‘if neither genocide nor any of the other acts listed in Article III of the Convention are ultimately carried out, then a State that omitted to act when it could have done so cannot be held responsible a posteriori, since the event did not happen which . . . must occur for there to be a violation of the obligation to prevent’: Application of the Convention on the Prevention and Punishment of the Crime of Genocide, ibid.

117 Arbour, supra note 112, 453.

118 Ibid. (emphasis added).

119 Ibid., at 454.

120 UN Doc. S/PV.3988, 24 March 1999, 6–7.

121 Report of the Secretary-General's High-Level Panel on Threats, Challenges and Change, supra note 107, para. 202.

122 Ibid., at para. 139 (emphasis added).

123 Ibid., at para. 256.

124 Durch, W. J., ‘Building on Sand: UN Peacekeeping in the Western Sahara’, (1993) 17 (4)International Security 151, at 151.

125 Fravel, M. T., ‘China's Attitude toward U.N. Peacekeeping Operations since 1989’, (1996) 36 Asian Survey 1102, at 1104.

126 UN Doc. S/PV.6354, 7 July 2010, 28.

127 See Stähle, S., ‘China's Shifting Attitude towards United Nations Peacekeeping Operations’, (2008) 195 China Quarterly 631, at 640.

128 As quoted in Wu, C., ‘Sovereignty, Human Rights, and Responsibility: Changes in China's Response to International Humanitarian Crises’, (2010) 15 Journal of Chinese Political Science 71, at 74.

129 Pang, Z., ‘China's Changing Attitude to UN Peacekeeping’, (2005) 12 International Peacekeeping 87, at 88. Similarly, He Yin has stated that ‘[a]lthough China can be flexible in normative principles like state sovereignty and non-intervention . . . [i]t is aware that its flexibility regarding these norms may be a “double-edged sword”. On the one hand, when properly used, flexibility can provide Beijing with more diplomatic options for dealing with international affairs, prevent unnecessary conflicts with other powers, and yield a favourable environment for its development strategy. On the other hand, when overexploited, it [does] not only jeopardise China's strategic interests regarding state sovereignty (especially the Taiwan Question) but also damages its image as a peace-loving power, especially in the eyes of the developing world’: China's Changing Policy on UN Peacekeeping Operations (2007), 57.

130 UN Doc. S/PV.3868, 31 March 1998, 11–12.

131 UN Doc. S/PV.4011, 10 June 1999. Construing the NATO intervention as ‘an international constitutional moment’, Anne-Marie Slaughter and William Burke-White argue that Art. 2(4) of the United Nations Charter, which states that ‘[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations’, should now read: ‘All states and individuals shall refrain from the deliberate targeting or killing of civilians in armed conflict of any kind, for any purpose’, which ‘articulates a principle of civilian inviolability’ that permits and compels humanitarian intervention and has replaced the principle of state sovereignty as a new Grundnorm for the ‘new’ international order: ‘An International Constitutional Moment’, (2002) 43 Harvard International Law Journal 1, at 2. Such a fanciful analysis notwithstanding, it is generally agreed among scholars of international law that the NATO intervention was incompatible with both the Charter and customary international law as it contravened the prohibition of the use of force and the principles of state sovereignty, territorial integrity, and non-intervention: see, e.g., Cassese, A., ‘Ex Iniuria Ius Oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’, (1999) 10 European Journal of International Law 23; Charney, J. I., ‘Anticipatory Humanitarian Intervention in Kosovo’, (1999) 32 Vanderbilt Journal of Transnational Law 1231; Gowlland-Debbas, V., ‘The Limits of Unilateral Enforcement of Community Objectives in the Framework of UN Peace Maintenance’, (2000) 11 European Journal of International Law 361; Henkin, L., ‘Kosovo and the Law of “Humanitarian Intervention”’, (1999) 93 American Journal of International Law 824; Hilpold, P., ‘Humanitarian Intervention: Is There a Need for a Legal Reappraisal?’, (2001) 12 European Journal of International Law 437; Pellet, A., ‘Brief Remarks on the Unilateral Use of Force’, (2000) 11 European Journal of International Law 385; Simma, B., ‘NATO, the UN and the Use of Force: Legal Aspects’, (1999) 10 European Journal of International Law 1. The International Court of Justice in Legality of Use of Force (Yugoslavia v. United States of America), Provisional Measures, Order of 2 June 1999, ICJ Reports 1999, 916, 922, emphasized that it was ‘profoundly concerned with the use of force in Yugoslavia’ which ‘under the present circumstances . . . raises very serious issues of international law’. Even some of the states that participated in the NATO intervention, particularly Germany, cautioned against attributing precedential value to the NATO intervention: Simma, ibid., 12–13. The fact that the NATO intervention was ‘collective’ is immaterial as ‘the Alliance has no greater freedom than its member states’ under international law: ibid., 19; to ascribe binding force to a unilateral decision of a majority of Security Council permanent members when the Security Council collectively, and as the only international organization empowered by the Charter to authorize enforcement action for the maintenance of international peace and security, decided against adopting a resolution that would have authorized military intervention in Kosovo was ‘tantamount to ignoring the very essence of the decision process within the Security Council’: Hilpold, supra, 449. With the far-reaching consequences that a Security Council decision entails, Hilpold, supra, stresses that ‘[a]ny attempt to introduce a majority principle for the permanent members of the Council, too – if only indirectly or with weakened consequences – and thereby abolishing or at least softening their veto power, would not only run counter to the letter of Article 27 of the UN Charter but also to the spirit lying at the heart of the constitutional consensus which permitted the establishment of [the current international order].’ Security Council Resolution 1244 (1999), on which China abstained, and which legitimated ex post facto the NATO intervention but reaffirmed the sovereignty and territorial integrity of the Federal Republic of Yugoslavia, did not render the intervention compatible with the Charter or customary international law. On the contrary, the Security Council's ex post facto legitimation ‘introduces in the international legal order a part of uncertainty which is deeply repugnant to the very function of law in any society and it is impossible to assume that it will not happen again in similar situations in the future’: Pellet, supra, 389.

132 Declaration of the Group of 77 South Summit, Havana, 10–14 April 2000, para. 54.

133 See Stähle, supra note 127, 641–2.

134 Ibid., at 651; Contessi, N. P., ‘Multilateralism, Intervention and Norm Contestation: China's Stance on Darfur in the UN Security Council’, (2010) 41 Security Dialogue 323, at 331. At the Security Council meeting regarding draft Security Council Resolution 1679 (2006), China stated that ‘[w]e believe that, if the United Nations is to deploy a peacekeeping operation in Darfur, the agreement and cooperation of the Sudanese Government must be obtained. That is a basic principle and precondition for the deployment of all United Nations peacekeeping operations’: UN Doc. S/PV.5439, 16 May 2006. At the Security Council meeting regarding draft Security Council Resolution 1706 (2006), China explained its abstention on grounds that ‘having participated in all the consultation processes in a constructive manner, China agreed upon or accepted almost all the contents of the resolution. However, we have consistently urged the sponsors to clearly include “with the consent of the Government of National Unity” in the text of the resolution, which is a fixed and standardized phrase utilized by the Council when deploying United Nations missions’: UN Doc. S/PV.5519, 31 August 2006.

135 UN SC Res. 1556 (2004), Preamble and paras. 1–2 and 7–8; UN SC Res. 1564 (2004), Preamble and para. 12; UN Doc. S/PV.5040, 18 September 2004; UN Doc. S/PV.5519, 31 August 2006. At the Security Council meeting regarding draft Security Council Resolution 1593 (2005), which called for the situation in Darfur to be referred to the International Criminal Court for investigation into human rights violations committed since July 2002, China abstained on grounds that ‘out of national judicial sovereignty, we would prefer to see perpetrators of gross violations of human rights stand trial in the Sudanese judicial system. We have noted that the Sudanese judiciary has recently taken legal action against individuals involved.. . .We are not in favour of referring the question of Darfur to the International Criminal Court (ICC) without the consent of the Sudanese Government’: UN Doc. S/PV.5158, 31 March 2005.

136 Stähle, supra note 127, 648.

137 Gill, B. and Reilly, J., ‘Sovereignty, Intervention and Peacekeeping: The View from Beijing’, (2000) 42 (3)Survival 41, at 50.

138 UN SC Res. 1296 (2000), para.5.

139 Prevention of Armed Conflict: Report of the Secretary-General, UN Doc. A/55/985–2/2001/574, 7 June 2001.

140 Statement of Ambassador Wang Yingfan, as quoted in Pang, supra note 129, 94.

141 UN Doc. A/C.4/56/SR.20, 4 December 2001, para. 45.

142 UN Doc. A/C.4/55/SR.20, 5 April 2001, paras. 28–29.

143 UN Doc. A/C.4/58/SR.11, 14 November 2003, para. 31.

144 Ibid., at para. 33.

145 Ibid.; see also UN Doc. A/C.4/59/SR.17, 31 December 2004, para. 24.

146 UN Doc. S/PV.5041, 22 September 2004.

147 UN Doc. S/PV.5261, 14 September 2005.

148 As quoted in Huang, C.-H., ‘Principles and Praxis of China's Peacekeeping’, (2011) 18 International Peacekeeping 257, at 260–1.

149 PLA Daily, 22 June 2007, as quoted in Wu, Z. and Taylor, I., ‘From Refusal to Engagement: Chinese Contributions to Peacekeeping in Africa’, (2011) 29 Journal of Contemporary African Studies 137, at 150.

150 Huang, supra note 148, at 261, citing ‘PLA Constructs MOOTW Arms Force System’, PLA Daily, 14 May 2009, and ‘PLA Peacekeeping Work Conference Held in Beijing’, PLA Daily, 26 June 2009.

151 ‘PLA Contributes a Lot to UN Peacekeeping Operations’, PLA Daily, 26 April 2010, as quoted in Zhao, supra note 58, 346.

152 United Nations Department of Peacekeeping Operations, ‘UN Missions Summary Detailed by Country’, 1 October 2010.

153 Letter dated 4 January 2010 from the Permanent Representative of China to the United Nations addressed to the Secretary-General, UN Doc. S/2010/9, 7 January 2010.

154 Ibid., at para.1.

155 Ibid.

156 Ibid., at para.2(1).

157 Ibid., at para.2(3).

158 Ibid.

159 Security Council Report, Update Report: UN Cooperation with Regional and Subregional Organisations in the Maintenance of International Peace and Security, 8 January 2010, No. 2.

160 Hurrell, A., ‘Legitimacy and the Use of Force: Can the Circle Be Squared?’, (2005) 31 Review of International Studies 15, at 16.

161 28 General Assembly Official Records, C.6 (1442nd meeting), para. 77 (1973), as quoted in Kim, S. S., ‘The People's Republic of China and the Charter-Based International Legal Order’, (1978) 72 American Journal of International Law 317, at 344. Similarly, in 1974, An Chih-yüan stated that ‘[a]s it stood, the definition would enable the super-Powers to take advantage of their position as permanent members of the Security Council to justify their acts of aggression and, by abusing their veto power, to prevent the Security Council from adopting any resolution condemning the aggressor and supporting the victim. . . . Since an aggressor could veto any draft resolution of the Security Council stating that it had committed an act of aggression, it was difficult to see how the definition could have the effect of deterring a potential aggressor, simplifying the implementation of measures to suppress acts of aggression and protecting the rights and interests of the victim, as provided in the preamble of the draft definition’: 29 General Assembly Official Records, C.6 (1475th meeting), para. 16 (1974), as quoted in Kim, supra, 345–6.

162 United Nations Charter, Art.27(3).

163 Liang, supra note 29, 347–8. Liang, representing China, submitted a statement regarding the application of Article 27(3), as follows (at 349–51):

The Yalta Formula provides that when a state is party to a dispute it shall abstain from voting in the non-procedural decisions of the Council under Chapter VI of the Charter concerning such dispute. This requirement for abstention, in the case of a permanent member being a party to a dispute, obviously does not affect the requirement that the remaining permanent members must concur in the decisions.

It is also clear that the abstention requirement laid down in Article 27, paragraph 3, is not intended to apply to all matters arising under Article 35, paragraph 1. Thus when a state brings to the attention of the Security Council, by reason of the general interest of that state as a Member of the United Nations, a matter which it considers might endanger international peace and security, the requirement for abstention shall not apply to such Member in any of the decisions of the Council provided for in Article 34 and Article 36. In exercising such a general right, the position of the state bringing the matter to the attention of the Security Council is similar to that of the Secretary-General under Article 99.

With respect to the requirement for abstention, however, the distinction between disputes and situations should not extend to those cases in which one state complains that its specific rights have been infringed upon or their enjoyment directly endangered by the action of one or more other states, and alleges that a dispute, the continuance of which endangers international peace and security, has arisen. Should the other state or states directly involved make the allegation that a situation has arisen as distinct from a dispute, such an attempted distinction shall not affect the requirement for abstention laid down in Article 27, paragraph 3, of the Charter.

The specific function of the Security Council in connexion with the pacific settlement of disputes and situations endangering the maintenance of international peace and security is laid down in Article 36, which states that ‘The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment’. The terms of this article indicate that the action contemplated is not based upon a prior determination whether a matter is a dispute or a situation, but upon whether the matter brought before the Council is of such a nature that its continuance is likely to endanger the maintenance of international peace and security. It is clear that Article 36 makes no distinction between disputes and situations in so far as the function of the Council in making recommendations is concerned.

At the time of the Yalta Conference the authors of the voting formula had before them only the text of the Dumbarton Oaks Proposals. An examination of these proposals reveals that the paragraph corresponding to Article 36(1) of the Charter, namely Chapter VIII, Section A, paragraph 5, refers only to disputes and not to situations. In embodying the abstention clause into the voting formula, therefore, it was clearly the intention of the authors to exclude from voting those states involved directly in a matter whose continuance might endanger international peace and security. However, as the term used to describe such matters was ‘dispute’ in the text of the Dumbarton Oaks Proposals, it was only logical that the term used in the Yalta Formula was ‘parties to a dispute’. There is further evidence of the fact that the term ‘parties to a dispute’ was meant to include ‘parties directly concerned in a situation’ in cases where the Security Council has to make the determination provided for in Article 34 of the Charter. In a statement issued on 5 March 1945 Mr Stettinius, then Secretary of State said: ‘This means that no nation, large or small, if a party to a dispute, would participate in the decisions of the Security Council on questions like the following: “(b) Whether the dispute or situation is of such a nature that its continuation is likely to threaten the peace.”’

As stated above, the text of the Yalta Formula was drafted on the basis of the text of the Dumbarton Oaks Proposals in which the term ‘situation’ did not appear in connexion with the specific function of the Council relative to pacific settlement, as laid down in Chapter VIII, Section A, paragraph 5. At San Francisco this section of the Dumbarton Oaks Proposals was considerably revised while the text of the Yalta Formula remained untouched. Among the many modifications made in Section A of Chapter VIII was the insertion of the term ‘or of a situation of like nature’ in paragraph 5 of that section. The Summary Report of the Twelfth Meeting of Committee III/2 reveals that the words ‘or of a situation of like nature’ were intended to give effect to the Australian amendment which proposed that the Security Council should be permitted to deal with both a dispute or a situation the continuance of which was likely to endanger the peace. Thus it is clear that the insertion of the term ‘or of a situation of like nature’ in Article 36 with reference to the specific function of the Security Council as regards pacific settlement was never intended to be the basis of a differentiation between the duty of states to abstain from voting in a dispute to which they are parties and the absence of such a duty in the case of situations in which they are directly concerned.

The abstention clause in Article 27(3) of the Charter is an embodiment of the principle that, so far as the process of pacific settlement calls for the appreciation by the Council of a question presented to it, a state shall not at once be judge and party in its own cause. If a matter brought to the attention of the Council is sufficiently grave so that the Council considers that its continuance may endanger international peace and security, it may make such a decision exclusive of the votes of the states directly involved. If this decision is in the affirmative, the Security Council may recommend appropriate procedure or methods of adjustment by virtue of a decision which is again exclusive of the votes of the states directly involved. This requirement for abstention, however, does not flow from the fact that the states directly involved are parties to a dispute as distinct from being directly involved in a situation. Rather it is derived from the necessity for effective action on the part of the Council on the one hand, and the principle that no state shall be judge and party in its own cause on the other.

If the interpretation is accepted that, with respect to the requirement for abstention, a distinction exists between parties to a dispute and parties directly concerned in a situation, then when a matter is brought to the attention of the Security Council involving a permanent member, that matter can never be considered a dispute within the meaning of the Charter, unless that permanent member chooses to have it so considered. Furthermore, to make the determination of whether a dispute or situation exists subject to the veto power of a permanent member is to defeat the clear intention of the Yalta Formula and to render meaningless the distinction made therein between voting procedures applicable to pacific settlement and voting procedures applicable to enforcement action.

164 Reisman, supra note 75, 93.

165 United Nations Charter, Art. 4(2).

166 Ibid., Art. 108.

167 UN SC Res. 1970 (2011; passed unanimously) imposing sanctions on the Libyan government; UN SC Res. 1973 (2011); China, Russia, Brazil, Germany, and India abstained) authorizing a no-fly zone over Libya for the protection of civilians; UN SC Res. 2009 (2011; passed unanimously) establishing a United Nations Support Mission in Libya; UN SC Res. 2016 (2011; passed unanimously) terminating military intervention in Libya on 27 October 2011; UN SC Res. 2017 (2011; passed unanimously) regarding portable surface-to-air missiles in Libya; UN SC Res. 2022 (2011; passed unanimously) extending the mandate of the United Nations Support Mission in Libya; and UN SC Res. 2040 (2012; passed unanimously) further extending the mandate of the Mission.

168 UN Doc. S/PV.6528, 4 May 2011, 10.

169 UN Doc. S/PV.6531, 10 May 2011, 20.

170 UN Doc. S/PV.6627, 4 October 2011, 5.

171 See Garwood-Gowers, A., ‘China and the “Responsibility to Protect”: The Implications of the Libyan Intervention’, (2012) 2 Asian Journal of International Law 375, at 387.

172 UN Doc. S/PV.6627, supra note 170, at 4.

173 ‘Responsibility while Protecting: Elements for the Development and Promotion of a Concept’, Annex to the Letter dated 9 November 2011 from the Permanent Representative of Brazil to the United Nations addressed to the United Nations Secretary-General, UN Doc. A/66/551-S/2011/701, 11 November 2011, para. 10.

174 As quoted in Garwood-Gowers, supra note 171, at 391.

* LLB (HKU), LLM (Dunelm), PhD Candidate (NUS); Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law []. I am grateful to Simon Chesterman for insisting that I include the subject of this article as part of my doctoral thesis at the National University of Singapore, and for his comments and suggestions on my chapter drafts. This article was presented at the Institute for International Law, Ludwig-Maximilians-Universität München, and the Faculty of Law, Humboldt-Universität zu Berlin, in April 2013. I thank Christian Walter and Georg Nolte for their invitations and critical comments, and their students for the engaging thoughts and questions. Responsibility for any errors or omissions remains mine alone.

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