JURIST Contributing Editor Michael Kelly of Creighton University School of Law says that US President Barack Obama made the right move in recommending India for a permanent position on the UN Security Council, but that the Council also needs to undergo more extensive changes in order to reflect current geo-political realities…

President Obama threw American support behind India’s candidacy to join the United Nations Security Council in a speech before the Indian Parliament in New Delhi earlier this month. Clearly, India deserves a permanent seat on the Council as the world’s largest democracy and a nuclear power to boot. And clearly, no state can hope to ascend to the Council without U.S. support. But it is also true that tossing a stone into this pond creates ever-wider geo-political ripples.

Created in 1945, the organization of the United Nations [UN Charter] still reflects the broad post-World War II peace settlement. Each state would have a voice in the General Assembly – the resolutions of which are non-binding. And the victorious Allies would ensure international peace and security through their permanent presence on the Security Council – the resolutions of which are binding. Over time, it came to be recognized that the membership of the Security Council was not particularly representative, causing that body to suffer a legitimacy deficit. Non-permanent membership was expanded to ten seats elected for two-year terms on alternating cycles to provide better geographic representation. However, this supplement to the permanent seats occupied by Britain, France, China, Russia and the U.S. proved only a stop-gap measure.

Over time, justifications for permanent membership seemed to fade as the political and economic influence of Britain and France waned while that of Germany, Japan, and India steadily rose. Military justifications also faded as the Soviet Union collapsed, the nuclear club expanded beyond the original five, and defense spending plummeted across Europe after the Cold War. Indeed, Britain is now set to decommission its last aircraft carrier, the Ark Royal.

If permanent seats on the Security Council are supposed to be filled by those states with the greatest capacity to ensure international peace and security (and the legitimacy of that body’s resolutions are hinged to representativeness), adjustments have been in order for quite awhile. The problem that has forestalled all discussion on this point is the veto. Each of the five permanent members has the ability kill any action the Security Council seeks to undertake by withholding its assent. During the Cold War, the threat of either an American or Soviet veto kept the Council in a deep freeze. Altering the Council in any way could trigger a veto from either France or Britain, which present the weakest cases for continuing permanent membership, to protect their seats.

A secondary stumbling block has erupted amongst potential candidates to fill new seats. National and regional jealousies pervade an atmosphere of antagonism. Pakistan and Indonesia argue that India cannot possibly represent the Muslims of South Asia. Mexico and Argentina level the same argument against Brazil’s potential ascension with respect to the Spanish-speaking population of Latin America. And how could one choose between a largely black versus a largely Arab state to represent Africa? These tensions hold back logical candidates like India, Brazil and South Africa and, without that geographical/political cover, Germany and Japan can never hope to join. Adding the former Axis powers to the Security Council by themselves adds no diversity to the Council, although it makes eminent sense to do so based solely upon their economic power and historical contributions to the United Nations.

And yet a comprehensive reform of the Security Council’s permanent membership could be had if candidates and current members are willing to barter. The non-permanent seats should be left in place at ten. And the permanent seats should increase by two for a total of seven. Russia, China, and the U.S., by virtue of their economic, political, and nuclear strength should also be left in place. But the remaining four seats should be dedicated to regional representation for Europe, Asia, Africa, and Latin America. Each regional permanent seat should be filled on a rotating basis among three states in that region for a two-year term.

The European seat would be shared among France, Britain, and Germany. The Asian seat would be shared among Japan, India, and Pakistan (or Indonesia). The African seat would be shared among Egypt, South Africa, and Nigeria (or Kenya). The Latin American seat would be shared by Brazil, Mexico, and Argentina (or Chile). This would ensure the most diverse representation while also ensuring a relatively small, and thus more efficient and manageable, Security Council.

But the specter of veto-proliferation hovers over any talk of Security Council expansion. Thus, only current veto holders should continue to wield the “substantive veto” that can kill anything. That means the European seat would continue to hold such power along with Russia, China, and the U.S. For new permanent seats, a “procedural veto” may be devised. That power would entail a referral mechanism such that when a new permanent Security Council casts a veto, instead of killing the measure outright, the question is referred to a standing committee of the General Assembly.

The benefits of creating a procedural veto are two-fold. New permanent members ascend to the Security Council with a veto power, although not one of the same order that currently exists. And the General Assembly potentially gains a long-sought role in matters of international peace and security. An ancillary benefit is that the threat substantive veto usage is reduced from five to four at any single meeting of the Council.

India should join the Security Council. Even President Obama’s fiercest conservative critics agree with him on that. Germany and Japan should join, as well as Brazil. But this cannot happen in a vacuum. It can only happen in the context of more significant systemic reform. My prediction is that America won’t, or can’t, get truly serious about that until after the next presidential election. Once safely within his second term, Mr. Obama could then move squarely toward tackling this major project. But it certainly does not hurt to begin setting up the dominoes now.

Michael J. Kelly is Professor of Law and Associate Dean for Faculty Research ' International Programs at Creighton University School of Law. He served as Chair of the Association of American Law Schools Section on National Security Law in 2009-2010. Read more on Professor Kelly’s Security Council reform proposal here: U.N. Security Council Permanent Membership: A New Proposal for a Twenty-First Century Council, 31 Seton Hall Law Review 319 (2000).

Suggested citation: Michael Kelly, UN Security Council Membership: The Admission of India and Other Necessary Reforms, JURIST – Forum, Nov. 24, 2010, http://jurist.org/forum/2010/11/un-security-council-membershp-the-admission-of-india-and-other-necessary-reforms.php.