1. Introduction
Since the Opium War, China has metamorphosed, from an insular imperial regime determined to have its traditions preserved, into a major international actor whose contributions to the legitimacy and development of international law ought to be understood. Given the centrality of law in the creation, decision-making processes and procedures, and impact of the United Nations Security Council and its decisions, the deliberative discourses that Security Council member states engage in that in turn shape their behaviours, and the necessity for China to articulate its reasons publicly for its actions within the Security Council (which may consist in abstentions and vetoes as well as support), the roles that China plays within the Security Council illuminate and clarify its approaches to the current international legal order. China's actions within the Security Council also show how international law may or may not have evolved to encompass certain contentious interpretations of the United Nations Charter, notably the power of the United Nations to form or delegate peacekeeping operations, and the purported right or duty, of the international community or a particular state to use force against another state in the face of human rights violations or a humanitarian catastrophe.
This article first explains how international law serves as a constitutional–normative framework within which the Security Council must operate, 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 member states’ behaviours. Then, it challenges the view commonly held by international relations scholars that international law plays a limited role on matters of international peace and securityFootnote 1 by exploring China's voting behaviour in the Security Council and the arguments that it has proffered in justification. This article also discusses how China has made use of its Security Council permanent membership to explore possibilities for strengthening the United Nations in the maintenance of international peace and security. Finally, it addresses some scenarios in which China may resort to international legal norms and principles to respond to a draft Security Council resolution aimed at its conduct rather than simply veto it. An appreciation of how China deploys legal argumentation to buttress its positions helps advance ‘our understanding of the law, and thus. . .the identity, objective, and principles of the community’.Footnote 2 This article shows the importance China, through its voting behaviour and argumentation within the Security Council, ascribes to international law as the perimeter within which the current international order ought to function.
2. The Security Council and international law
The United Nations was established to forestall international conflicts and the Security Council was envisaged as a forum where major states, together with especially affected states and a rotating sample of other states,Footnote 3 may meet to deliberate and determine the course of action to follow in a situation or dispute by reference to established international norms, principles, rules, and procedures, in order that international peace and security may be maintained or restored. The United Nations Charter vests the primary responsibility for the maintenance of international peace and security in the Security Council,Footnote 4 and specifically prescribes that the General Assembly shall not make any recommendation without a request of the Security Council regarding a situation or dispute of which the Security Council has been seized.Footnote 5 The legitimacy of Security Council decisions derives directly from the Charter, whereby, in discharging its responsibility in accordance with the Charter, the Security Council acts on behalf of all United Nations member states,Footnote 6 who agree to accept and implement its decisions.Footnote 7
Notwithstanding the veto power of Security Council permanent members, the consequential structural inequalities within Security Council decision-making processes and procedures, and the political nature of Security Council determinations as to the existence of a threat to the peace,Footnote 8 Simon Chesterman argues that ‘a distinction must be made between the exercise of discretion formally provided for in the constituent document of the organization and the arbitrary exercise of the powers that it grants’.Footnote 9 A Security Council member state must justify its conduct through ‘principled, informed, collective deliberation’Footnote 10 by reference to international legal norms and principles lest it face moral and political censure. International law serves an essential contribution to the maintenance of international peace and security through the reliance that states place upon it in justifying their policies, practices, and actions. The Security Council itself must abide by such rules and principles of international law as are applicable to it, with its functions, competences, and powers defined and constrained by the Charter as its constituting treaty. The popular belief, reflected in much international relations scholarship, that the Security Council possesses unfettered powers concerning all matters of international (and even domestic) concern and may override international law or constitutes a ‘world legislature’Footnote 11 is incorrect and cannot be supported without jeopardizing the integrity of the Security Council as a creature and institution of international law, and of the current international order underpinned by the primacy of the United Nations and its constituting Charter.Footnote 12
While many international relations scholars often conflate legitimacy (real or perceived) with legality, legitimacy and legality are two distinct concepts. A perception of an illegitimate process tends to reflect ‘subjective conclusions, perhaps based on unarticulated notions about what is fair and just, or perhaps on a conscious utilitarian assessment of what the process means for oneself’.Footnote 13 The legitimacy of a decision, of a process through which it is made, and of the organization that makes it, is important as it comprises ‘factors that affect our willingness to voluntarily comply with commands’Footnote 14 and embodies ‘a property of a rule or rule-making institution which itself exerts a pull toward compliance on those addressed normatively because those addressed believe that the rule or institution has come into being and operates in accordance with generally accepted principles of right process’.Footnote 15 Bardo Fassbender ascribes to legitimacy a legal character in cases where ‘it affects the authority of a rule-making institution, defined as its ability to have its decisions implemented. In other words, legitimacy becomes a legal category in conjunction with the problem of compliance of someone subject to the law with a legal rule or decision’.Footnote 16 In the conduct of international relations, legality cannot be considered in isolation from politics, even in a forum such as the Security Council where law is supposed to possess primacy and constraining impact over discretionary political decision-making. In fact, very often it is law, including the principles of state sovereignty and of non-intervention and the prohibition of the use of force, that gives rise to conflicts and concerns calling for political reconfiguration. As Martti Koskenniemi discerns, ‘“[l]aw” and “discretion” did not exist in separate pigeon-holes in our minds. The legal debate did not “stop” at any point to leave room for a separate political choice; political choices were posed the moment the legal debate started.’Footnote 17 Its requisite objectivity notwithstanding, international law in its application to a situation or dispute is ultimately a political act subject to discretion.Footnote 18
That policy plays a determining role in the interpretation and application of international law in a situation or dispute does not alter the fact that the Security Council remains bound by its constituting legal framework; that is, the United Nations Charter. As the International Court of Justice in its advisory opinion in Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter) Footnote 19 stated:
The political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment. To ascertain whether an organ has freedom of choice for its decisions, reference must be made to the terms of its constitution.Footnote 20
Hans Kelsen argues that the purpose of Security Council enforcement powers for which Article 39 of the Charter provides is the maintenance or restoration of international peace and security, and not necessarily the maintenance or restoration of international law.Footnote 21 However, the Security Council cannot decide on a course of action, however its members wish, without a proper legal basis or beyond its jurisdiction, without jeopardizing the legitimacy – and effectiveness – of all Security Council decisions that derive from Article 25 of the Charter. The general consent of United Nations member states, which Article 25 embodies, to submit to, and to agree to undertake, Security Council decisions does not absolve the Security Council from its legal obligation to act in accordance with the Charter, as the same provision indicates, and the fact that an issue concerns international peace and security does not entitle the Security Council to act as it wishes. As the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia in The Prosecutor v. Dusko Tadić stated:
The Security Council is an organ of an international organization, established by a treaty which serves as a constitutional framework for that organization. The Security Council is thus [subject] to certain constitutional limitations, however broad its powers under the constitution may be. Those powers cannot, in any case, go beyond the limits of the jurisdiction of the organization at large, not to mention other specific limitations or those which may derive from the internal division of power within the organization. In any case, neither the text nor the spirit of the Charter conceives of the Security Council as legibus solutus (unbound by law).Footnote 22
Reference is had also to the International Court of Justice's advisory opinion in Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276.Footnote 23 The Court referred to South Africa's continued presence in Namibia as ‘a situation which the Court has found to have been validly declared illegal [by the Security Council]’.Footnote 24
The competences and powers of the Security Council are thus confined to occasions where they are necessary for the maintenance of international peace and security, and not more. The requirement that the Security Council discharge its powers and responsibility only for the maintenance of international peace and security is further confirmed by Article 13(1)(a) of the Charter, whereby it is the General Assembly that is entrusted with the responsibilities, functions, and powers to make recommendations for the development and codification of international law. To hold otherwise, treaty law-making processes will be stymied. In addition, Articles 40, 42, 43(1), and 51 of the Charter require that a Security Council action must be necessary for the maintenance of international peace and security:
the Council's general powers do not provide it with a blank cheque to take measures which would violate fundamental principles and rules of international law, even if these are not specifically referred to in Chapter I or in other provisions of the Charter.Footnote 25
The United Nations International Law Commission has stressed that states cannot violate norms of jus cogens by proxy through an international organization.Footnote 26 In his separate opinion in Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Judge ad hoc Lauterpacht stated:
The relief which Article 103 may give the Security Council in case of conflict between one of its decisions and an operative treaty obligation cannot – as a matter of simple hierarchy of norms – extend to a conflict between a Security Council resolution and jus cogens. Indeed, one only has to state the opposite proposition thus – that a Security Council resolution may even require participation in genocide – for its unacceptability to be apparent.Footnote 27
It is noteworthy that China has voiced support for legal liability to be attached to member states of an international organization whose collective decision violates international law.Footnote 28
When China joined the second phase of the Dumbarton Oaks negotiations between the United Kingdom, the United States, and the Soviet Union, it proposed that Article 1 of the United Nations Charter should include the provision that ‘the settlement of international disputes should be on the basis of the principles of justice and international law’. China's proposal was adopted,Footnote 29 as a result of which one of the purposes of the United Nations, as stated in the Charter, is ‘to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace’.Footnote 30 A corresponding addition was made to Article 2(3) of the Charter, that ‘[a]ll Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.’Footnote 31 That said, while the Security Council must make political decisions in accordance with international law, it is not its role to find legal answers to political problems.Footnote 32 Non-compliance with the Charter or with international law is not a basis for the Security Council to assert jurisdiction or competence so long as there is no threat to the peace,Footnote 33 and it is for the International Court of Justice to provide legal answers.Footnote 34
Many speak of the Security Council's ‘failure’ to pass a draft resolution, or ‘failure’ of one or more permanent members to agree to one, in the face of a threat to international peace and security or a humanitarian catastrophe. The International Commission on Intervention and State Sovereignty (which, it ought to be noted, was set up under the auspices of the Canadian government and composed of 12 members, and not an international organization as its name tends to suggest) argued in its report in 2001 that
if the Security Council expressly rejects a proposal for intervention where humanitarian or human rights issues are significantly at stake, or the Council fails to deal with such a proposal within a reasonable time, it is difficult to argue that alternative means of discharging the responsibility to protect can be entirely discounted.Footnote 35
What is amiss is that it is precisely the design and process that the Charter embodies and requires that a Security Council decision has the support (or at least acquiescenceFootnote 36) of all permanent members in order for it to be effective and not become a source of military conflict among permanent members themselves, and their veto power is constitutionally built through the Charter into Security Council decision-making processes and procedures. At no times during the Kosovo crisis in 1999, the invasion of Iraq in 2003, or the internal conflict in Syria since 2011 was the Security Council unable or incapacitated to act as a result of disagreement among permanent members. The possibility of disagreement among permanent members and a permanent member's capacity to veto a draft Security Council resolution is a core structural part of the Security Council in order to constrain excessive or unilateral exercise of military or political power by one or more individual states and to ensure that any Security Council action has the agreement and co-operation of all major powers.Footnote 37
In the case of Kosovo, two permanent members (China and Russia) indicated that they would exercise their vetoes in relation to any United Nations-authorized or -led military action in Kosovo as they expressed their positions that any such action would be incompatible with the Charter and international law, and the Security Council decided collectively not to adopt a resolution authorizing military action. The refusal of China and Russia to automatically endorse British/French/United States preferences in fact illustrated that the Security Council ‘acquired teeth’,Footnote 38 and the Security Council's ‘special responsibility’ for the maintenance of international peace and security was thus met. Daniel Joyner argues that this fundamental facet of the United Nations system is
wilfully misunderstood by critics of the Security Council's handling of humanitarian intervention cases, who apparently desire the legitimacy of representative authorization for their actions by the Council, but who are unwilling to abide by the denial of that authorization by the same body.Footnote 39
The veto has helped maintain and stabilize Security Council decision-making processes and procedures by providing a check-and-balance exercise among permanent members. Without the veto, the Security Council would merely become another device for powerful states to act as they wish with a semblance of international legitimacy; the number of military missions, some of which may be for malevolent purposes, will significantly increase; and the chief purpose of the Security Council – the maintenance of international peace and security – will fail. The real issue is not so much the existence of the veto but ‘how the veto ought to be exercised under the Charter’.Footnote 40 Instead of enabling permanent members to advance their own national interests or agendas, the veto imposes a duty to ‘constantly search for agreement’.Footnote 41 In order that the Security Council and its decisions possess the requisite legitimacy and effectiveness, the reasoning that underlies Security Council decisions must be articulated publicly and supported by international legal norms and principles that are shared and respected by all States, as I explain in the next section.
In the eyes of some, compliance of an international organization and its members with established norms, principles, rules, and procedures in making a decision does not by itself render the organization, the norms, the principles, the rules, the process, or the decision legitimate. Allen Buchanan and Robert Keohane argue that
an institution should be presumed to be illegitimate if its practices or procedures predictably undermine the pursuit of the very goals in terms of which it justifies its existence. Thus, for example, if the fundamental character of the Security Council's decision-making process renders that institution incapable of successfully pursuing what it now acknowledges as one of its chief goals – stopping large-scale violations of basic human rights – this impugns its legitimacy.Footnote 42
It is important to keep in mind that a Security Council resolution comes into being only after it is passed with the support or acquiescence of all permanent members, and legitimate and effective Security Council decision-making does not always have to result in a resolution. The legitimacy of a Security Council decision rests upon the fact that it is collectively made. A collective decision is not the same as a unanimous decision, much less a decision made in subservience to the wishes of powerful states. As Martha Finnemore has stated, multilateralism manifests more than in co-operation among a number of states, but in co-operation taking place in accordance with established norms, principles, rules, and procedures of a general nature.Footnote 43 A collective decision requires that all Security Council members be able to inform Security Council deliberations with their own perspectives with the objective of maintaining international peace and security. That a permanent member such as China would veto an otherwise widely supported draft Security Council resolution at the expense of its popularity within the Security Council and among governments around the world speaks volumes about the permanent member, the Security Council, and the current international order governed under the framework of the Charter and international law.
3. Security Council as a locus of deliberative discourses
With its structural flaws and lack of representativeness, the Security Council might not be taken as an exemplar of an institution for deliberative discourses and, in fact, has faced a great deal of criticism and calls for institutional reform. David Caron argues that a permanent member's capacity to dilute, stymie, or preclude a Security Council decision through its threat or use of veto illustrates that the Security Council from its inception has betrayed its express promise to be the guarantor of international peace and security,Footnote 44 while others are concerned that powerful states use the Security Council to impose ‘hegemonic international law’.Footnote 45 The problem is exacerbated by the practice of permanent members to agree on a decision through informal discussions, from which non-permanent members are excluded, before the formal vote. Ian Hurd asserts that Security Council meetings are now reduced to pro forma affairs that merely put on record what has already been informally agreed upon by permanent members, that the president of the Security Council ‘invariably notes in opening an official meeting that “the Security Council is meeting in accordance with the understanding reached in its prior consultations”’.Footnote 46 Ngaire Woods notes that
[a] further, deeper problem with informal processes is that they are unrecorded. This means that the reasoning for a decision is not open to scrutiny by other states, nor is the position taken by each member. In these ways, the Council is not accountable to states who are not party to the informal processes even if they are directly affected by the Council's decisions . . . The experience of the Security Council also highlights that reliance on informal negotiations, which take place behind the scenes, magnifies the unequal resources available to members in order to work effectively to push their own preferences.Footnote 47
Caron explains that the effectiveness of the Security Council may suffer due to perceptions that it is illegitimate, resulting in failure to pass a draft resolution, failure to pass a stronger draft resolution that is otherwise warranted, difficulty in summoning the necessary domestic and/or international support to implement a resolution, and the weakening of the Security Council generally.Footnote 48 Even when the Security Council manages to garner the necessary votes for a decision, its habitual tendency to label its actions as ‘exceptional’, ‘without precedent’, or ‘extraordinary’Footnote 49 has reinforced the perception that it merely provides a ‘law-laundering service’ to legitimize and enforce the unilateral will of powerful states.Footnote 50 As Susan Marks discerns,
[i]f all it would have taken to make the war in Iraq legal was a few more votes in the Security Council, then perhaps at least some of the energy that is going into affirming the illegality of the war should be turned to the question of whether there is something wrong with international law.Footnote 51
Referring to the catastrophic United Nations peacekeeping operation in Somalia between 1993 and 1995, Richard Falk warns that a legal but illegitimate decision of the Security Council will be met with determined opposition from the people whom the decision aims to protect, and United Nations imprimatur does not necessarily translate into local acceptance.Footnote 52 Phillip Darby criticizes peacekeeping operations as imperialism in disguise, indeed worse than imperialism, for
[b]ringing development and security together in a single fold opened the doors to attempts to re-engineer the state, to remake whole societies and to recast the identities of ordinary people, all in the interests of ‘best practice’ as laid down by external experts. This is interventionism on a scale beyond the imaginings of the former rulers of empire.Footnote 53
Malcolm Shaw argues that ‘the Western state's authoritative deployment of violence is now structurally reinforced by its increasing, if problematic, integration with the legitimate international world authority-structure of the United Nations’.Footnote 54 The United Nations Peacekeeping Operations: Principles and Guidelines Footnote 55 state that
[t]he manner in which a United Nations peacekeeping operation conducts itself may have a profound impact on its perceived legitimacy on the ground. The firmness and fairness with which a United Nations peacekeeping operation exercises its mandate, the circumspection with which it uses force, the discipline it imposes upon its personnel, the respect it shows to local customs, institutions and laws, and the decency with which it treats the local people all have a direct effect upon perceptions of its legitimacy.Footnote 56
Increased attention is now paid to local agency in peacekeeping and peace-building,Footnote 57 as peace must be ‘contextualised more subtly, geographically, culturally, in terms of identity, and the evolution of the previous socio-economic polity’.Footnote 58
The legitimacy (and appearance thereof) of a Security Council decision is thus as important as its legality. Ian Johnstone argues that instead of negotiations for expansion of membership of the Security Council (permanent membership or as a whole) or for revision of voting rules, ‘improving the quality of deliberations would enhance the legitimacy and, therefore, effectiveness of Council decision making’,Footnote 59 be more politically achievable,Footnote 60 and enable decisions to be more amenable to those in disagreement ‘through the exchange of reasons that are shared or can be shared by all who are bound by the decisions taken’.Footnote 61 Thomas Risse emphasizes that the consensus that results from a deliberative discourse additionally has constitutive effects upon participants,Footnote 62 such that the internalizing impact that international law may bring to bear on states may materialize. International legal norms and principles and institutional processes and procedures agreed upon by states provide a normative framework for deliberative discourses and for the reasons that such deliberative discourses generate. Once international legal norms and principles are internalized in a state's foreign and domestic policies and practices, they become dependent on normative legitimacy and guide the state's future conduct, as the state endeavours to maintain a reputation as a trustworthy actor through norm-conforming behaviour.Footnote 63 Although equal access is a condition of a deliberative discourse for which the Security Council might not necessarily provide (due to its lack of representativeness, its differentiation between permanent and non-permanent members, and permanent members’ veto power), a deliberative discourse may still succeed provided that the requirements, and the felt need, for a ‘good argument’ are shared among all Security Council members.Footnote 64 Sincerity is not essential for deliberative discourses to influence state behaviours, provided that international legal norms and principles inhere in the justifications proffered.Footnote 65 It has been found to be extremely difficult for participants in a deliberative discourse to make self-serving or self-interested claims without encountering criticism and resistance, and participants must rely on commonly accepted norms and principles even when advancing their own interests.Footnote 66 While consensus is a goal of a deliberative discourse, it is not a prerequisite to a deliberative discourse's success or integrity, and disagreements form part and parcel, and may indeed shape the course, of a deliberative discourse and the development of relevant norms, principles, rules, and values. Even after a decision has been made, new information may compel that the decision be revisited. A deliberative discourse is thus a dynamic, continuing process. A state is held accountable not only to other states but also to ‘what may be called their moral constituents, all those individuals who are bound by the decisions they make, whether de jure or de facto’Footnote 67 – that is, transnational corporations, the media, its citizens, citizens in other states, and an ‘interpretive community’ whose expertise, interests, and concerns extend beyond international law and who constitute an important arbiter of whether the requirements of a deliberative discourse are met.Footnote 68 In order to possess legitimacy, international law, and the obligations that it imposes, must be of a general and abstract character and must not be subject to the shifting political preferences or expediencies of powerful states. For these reasons, during the debate that preceded the invasion of Iraq in 2003, all permanent members and most non-permanent members of the Security Council invoked international legal norms and principles to advance their respective positions. When the United States failed to persuade the ‘interpretive community’ that its intention to invade Iraq was on the basis of its ‘war on terrorism’ and self-defence, it moved its case to one of enforcing Security Council resolutions regarding weapons of mass destruction in Iraq.Footnote 69
As the next section shows, the forum for deliberative discourses that the Security Council provides enables China to appreciate, adapt, and assert the roles it may play in the maintenance of international peace and security and the development of international law, and allows other states and the ‘interpretive community’ to understand the rationales underlying China's voting behaviour and argumentation within the Security Council.
4. China's voting behaviour and argumentation in the Security Council
Samuel Kim has suggested that China's membership of the Security Council has the effect that
symbolically, both the image and the prestige of the Security Council in the global community have been made more legitimate, more realistic, more colorful and more relevant. In practical terms, the Security Council's political effectiveness has also been enhanced to the extent that the presence of China has contributed to bridging the gap between authority claims and power capabilities of the Council.Footnote 70
In addition to geopolitical and normative reasons that render China's participation in Security Council deliberations and decisions essential, having China in the fold, as has been borne out by the evolution of China's participation in the United Nations from fervent opposition to firm support, enables China and other Security Council members, and the international community as a whole, to understand and communicate with each other within a legal–institutional framework that binds all states. The social opprobrium that violations of international law elicit serves an instrumental role in bringing about treaty compliance,Footnote 71 particularly for states such as China that seek to portray themselves as trustworthy international actors. Furthermore, information obtained through interactions with and within international organizations ‘can reduce uncertainty about the credibility of others’ commitments, and thus help actors’ expectations converge around some cooperative outcome’,Footnote 72 with the role that the Security Council serves in transmitting information arguably more important than its ability in resolving substantive issues.Footnote 73 Above all, participation in international organizations tends to lead states to redefine their national interests in order to meet their treaty obligations. Ann Kent suggests that the extent, and perhaps success, of China's socialization with international organizations should be measured by
China's readiness to redefine its actual interests, including its implementation of international norms in domestic law and practice; China's preparedness to renegotiate its sovereignty in response to organizational and treaty pressures; and the degree to which China shows a readiness to shoulder the costs, as well as enjoy the benefits, of organizational participation.Footnote 74
Since the end of the Cold War, the United States has appeared to hold unmatched influence and power within Security Council decision-making.Footnote 75 Barry O’Neill argues that in fact it is China that holds the most influence and power as a Security Council member – about twice the influence and power enjoyed by any of the other permanent members – on account of its veto power and the ‘extreme’ political positions it tends to hold, as the veto power of the three Western permanent members, or four if Russia is included, is often pooled whereas China may singlehandedly defeat a draft resolution notwithstanding Western pressure.Footnote 76 O’Neill suggests that the power disparity within the Security Council between China and the other permanent members would remain the same even if membership of the Security Council were to be enlarged.Footnote 77
The amount of influence and power that China holds within the Security Council is a major reason China has often been singled out for criticism by Western states, scholars, and media for impeding the passage of draft resolutions, obstructing the work of the Security Council, and stonewalling the development of international law. Such criticism is unfair, as China has rarely vetoed or threatened to veto a draft resolution. As at 30 August 2012, the veto was exercised 269 times. The Soviet Union/Russia vetoed draft Security Council resolutions 127 times, the United States 83 times, the United Kingdom 32 times, France 18 times, and China eight times (including once on 13 December 1955 when it was represented by the authorities on Taiwan, to block Mongolia's admission to United Nations membership on grounds that Mongolia was part of ChinaFootnote 78). China's rare use of its power to veto illustrates the sincerity of its belief that the veto is a means by which powerful states exercise hegemony.
Sally Morphet argues that China's voting behaviour within the Security Council since 1971, when the PRC government replaced the authorities on Taiwan as the representative government of China, may be characterized as having developed through four phases.Footnote 79 Between November 1971 and 1981, China was adjusting to its position, powers, and responsibilities within the Security Council. During this period, China vetoed proposed Security Council action twice. China vetoed Bangladesh's initial application for United Nations membership on 25 August 1972, when Bangladesh sought to secede from Pakistan, due to its concern over the legal status of Taiwan and its position that the parent state's consent was essential to a territory attaining independence and statehood. At the Security Council debate, China maintained that ‘[p]ending the true implementation of the relevant General Assembly and Security Council resolutions and a reasonable settlement of the issues between India and Pakistan and between Pakistan and “Bangladesh”, the Security Council should not consider the application.’Footnote 80 China drew attention to ‘acts of the Soviet social-imperialists’ and ‘their sinister designs to use others as counters or stakes to maintain and aggravate tension on the South Asian sub-continent’.Footnote 81 After Pakistan acknowledged Bangladesh's independence in 1974, China no longer blocked Bangladesh's application for United Nations membership and Bangladesh was admitted without vote. On 10 September 1972, China joined the Soviet Union to veto a draft amendment to a draft resolution that, vetoed by the United States, called for cessation of hostilities between Israel and Syria/Lebanon after the Munich massacre, arguing that ‘[t]he history of the Middle East since the Second World War is one of incessant aggression and expansion by Israeli Zionism and of the continuous fight of the Palestinian and other Arab peoples against aggression and expansion.’Footnote 82 Between 1982 and 1985, China managed its roles vis-à-vis both developing states and other permanent members with greater ease, and did not oppose any draft resolution. Between 1986 and July 1990 when the Soviet Union collapsed, China began to take a more conciliatory stance with other permanent members, and did not oppose any draft resolution.
From August 1990 to 2000, China navigated its roles and powers within the Security Council in the broader context of its relations with other permanent members in light of the United States’ dominance and Western permanent members’ increasing tendency to authorize the use of force on humanitarian grounds, and vetoed proposed Security Council action twice. China vetoed a draft resolution on 10 January 1997 on dispatching military observers to the United Nations Verification Mission in Guatemala and a draft resolution on 25 February 1999 on extending the mandate of the United Nations Preventive Deployment Force in Macedonia, for the reason that Guatemala and Macedonia recognized the authorities on Taiwan as the legitimate government of China (although China referred to Taiwan in its explanation of its veto in the case of Guatemala only,Footnote 83 and cited the United Nations’ limited financial resources and improvements on the ground in its explanation of its veto in respect of MacedoniaFootnote 84).
Morphet's analysis corresponds to the level of China's adaptation to international law and its socialization with the United Nations as a forum through which it may use its influence and power to assert its positions, particularly in respect of the principle of state sovereignty and the importance it attaches to how other states interact with Taiwan.
On draft Security Council resolutions that it did not find correct or amenable, instead of vetoing, China has tended to abstain. By abstaining, a Security Council member withholds from the proposed action the legitimacy that an affirmative vote from it may provide. Given the increasing Western tendency to treat a Security Council resolution – which must be necessary for the maintenance of international peace and security in a situation or dispute – as ‘international legislation’ and a foundation upon which a norm of customary international law may rapidly crystallize and consolidate, one of the effects and rationales that stem from an abstention is its indication that the proposed action in the opinion of the abstaining state does not comport with certain legal or policy requirements. As at 12 May 2012, China abstained on 38 draft Chapter VII resolutionsFootnote 85 and 18 draft non-Chapter VII resolutionsFootnote 86 since 1990, as opposed to its lone abstention in 1982 during 1971–89,Footnote 87 principally on matters that concerned impositions of non-military sanctions, use of force, establishments of international tribunals, and mandates and scopes of various humanitarian relief missions, on grounds that Security Council action would constitute interference in the relevant states’ internal affairs and breach of their state sovereignty. Otherwise, China abstained in 1999 on a draft resolution on Nauru's application for United Nations membership due to Nauru's recognition of the authorities on Taiwan as the legitimate government of China,Footnote 88 and in 2000 on a draft resolution on Tuvalu's application for United Nations membership for the same reason,Footnote 89 even though it could have vetoed both draft resolutions as it did in 1972 in respect of Bangladesh and in 1955, when it was represented by the authorities on Taiwan, in respect of Mongolia.Footnote 90
Meanwhile, China has taken a more co-operative role with other permanent members, even when it comes to its allies on whom other Security Council members wish to impose sanctions. China voted affirmatively on all three draft Security Council resolutions against nuclear development in North KoreaFootnote 91 and all three draft Security Council resolutions against nuclear development in IranFootnote 92 between 2006 and 2009. Of the 28 draft Security Council resolutions regarding genocide in Darfur between 2004 and 2008, China voted affirmatively on 22Footnote 93 while abstaining on six.Footnote 94 China, together with Russia, vetoed draft Security Council resolutions regarding political repression in Burma/Myanmar on 12 January 2007,Footnote 95 political repression in Zimbabwe on 11 July 2008,Footnote 96 and the Syrian government's suppression of internal unrest on 4 October 2011Footnote 97 and on 4 February 2012,Footnote 98 on grounds that Security Council action would constitute interference in Burma/Myanmar’s, Zimbabwe’s, and Syria's internal affairs and breach of the three states’ sovereignty. China did vote in unanimity with other Security Council Members on 14 April 2012 in favour of authorizing up to 30 unarmed military observers to be dispatched to Syria to monitor compliance with the ceasefire agreement between forces loyal and hostile to the Syrian government;Footnote 99 on 21 April 2012 in favour of establishing a United Nations Supervision Mission in Syria (with an authorized capacity of up to 300 unarmed military observers and necessary civilian personnel);Footnote 100 and on 20 July 2012 in favour of extending the mandate of the mission for a final period of 30 days.Footnote 101 The Security Council in its Resolution 2059 (2012) indicated that it would be willing to further extend the mandate of the mission
only in the event that the Secretary-General reports and the Security Council [confirm] the cessation of the use of heavy weapons and a reduction in the level of violence by all sides sufficient to allow [the mission] to implement its mandate.Footnote 102
The mandate of the mission ceased as of 19 August 2012 amid escalating violence in Syria.
4.1. China's evolving attitude to international peacekeeping
Despite its rare use of veto, China has received sustained criticism about its frequent abstentions. Nigel Thalakada has described China as pursuing a ‘maxi–mini’ strategy, maximizing its own security and economic benefits while minimizing its responsibilities,Footnote 103 while Thomas Christensen calls China ‘the high church of realpolitik in the post-Cold War world’.Footnote 104 Erik Voeten notes that China abstained on draft Security Council Resolution 678 (1990), which concerned Iraq's refusal to comply with previous Security Council resolutions regarding Kuwait, in exchange for the United States’ abstention in a World Bank vote on Chinese loans and for security guarantees relating to Taiwan and substantive changes in other draft Security Council resolutions.Footnote 105
Since the humanitarian crises in Bosnia and Herzegovina, Rwanda, Kosovo, and Darfur, the concept of a ‘responsibility to protect’ has gained currency among Western governments and scholars. The International Commission on Intervention and State Sovereignty in its 2001 report developed
the idea sovereign states have a responsibility to protect their own citizens from avoidable catastrophe – from mass murder and rape, from starvation – but that when they are unwilling or unable to do so, that responsibility must be borne by the broader community of states.Footnote 106
Merely three years had elapsed before the matter was taken up as part of the debate about United Nations institutional reform, when the High-Level Panel on Threats, Challenges and Change stated in its 2004 reportFootnote 107 that
there is growing acceptance that while sovereign Governments have the primary responsibility to protect their own citizens from such catastrophes, when they are unable or unwilling to do so that responsibility should be taken up by the wider international community – with it spanning a continuum involving prevention, response to violence, if necessary, and rebuilding shattered societies.Footnote 108
The panel spoke of an ‘emerging norm of a collective international responsibility to protect’Footnote 109 that encompassed not only ‘the “right to intervene” of any State but the “responsibility to protect” of every State when it comes to people suffering from avoidable catastrophe’.Footnote 110 Anne-Marie Slaughter asserts that underlying a responsibility to protect is a responsibility to be protected, and refusal to receive protection should engage a right of the international community to compel receipt.Footnote 111 Firmly believing that her position is not ‘a leap into wishing thinking’, Louise Arbour argues that ‘in existing law, in institutions and in lessons learned from practice’ a state has a ‘permanent’ responsibility to protect individuals, not only within one's territory but also within the territory of another state, against abuse.Footnote 112 The only authorities that Arbour cites in supportFootnote 113 are the 2005 World Summit Outcome Document (of which, it is noted, China voted in favour, and whose drafters included Qian Qichen, China's foreign minister at the time, as a member of the International Commission on Intervention and State Sovereignty),Footnote 114 Article I of the 1948 Genocide Convention,Footnote 115 and the International Court of Justice's judgment in Application of the Convention on the Prevention and Punishment of the Crime of Genocide between Bosnia and Herzegovina and Serbia and Montenegro in 2007 that
if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.Footnote 116
Arbour goes on to assert that Security Council permanent members, given their influence and power within and outside the Security Council, have a ‘heavier responsibility than other States to ensure the protection of civilians everywhere’,Footnote 117 and that in the event that a permanent member vetoes or threatens to veto ‘action that is deemed necessary by other members to avert genocide, or crimes against humanity’,Footnote 118 it may be held to have violated its obligations under the Genocide Convention.Footnote 119 At the Security Council debate on 24 March 1998 about the NATO intervention in Kosovo, Slovenia's permanent representative argued that NATO intervention was justified because ‘not all permanent members were willing to act in accordance with their special responsibility for the maintenance of international peace and security’.Footnote 120
The High-Level Panel on Threats, Challenges and Change associated the concept of responsibility to protect with the principle of collective security by the Security Council, stating that the Security Council ‘can always authorize military action to redress catastrophic internal wrongs if it is prepared to declare that the situation is a “threat to international peace and security”’,Footnote 121 and that
we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.Footnote 122
The panel urged permanent members ‘to pledge themselves to refrain from the use of the veto in cases of genocide and large-scale human rights abuses’.Footnote 123
It is important to note that the United Nations Charter does not provide for peacekeeping operations. International peacekeeping ‘evolved as an alternative to the collective security that the UN was designed to provide but could not’.Footnote 124 Taylor Fravel notes that peacekeeping operations ‘evolved in the early 1950s as a response to border disputes sparked by decolonization’.Footnote 125 China traditionally considered any peacekeeping operation to constitute interference in a state's internal affairs and breach of the state's sovereignty. China insisted that the consent of the host state, impartiality of the peacekeeping operation, and non-use of force except in self-defence were essential to any peacekeeping operation that the Security Council were to authorize. At a Security Council debate on 7 July 2010 about protection of civilians in armed conflict, China reiterated that
[a]dhering to the three principles of the consent of the country concerned, impartiality and the non-use of force except in self-defence is the key to the success of peacekeeping operations. Any deviation from those basic principles will cause more conflicts and problems, even to the point of jeopardizing the success of the peacekeeping operation concerned, rather than help to protect civilians.Footnote 126
China abstained on draft Security Council Resolutions 770 (1992), 776 (1992), 781 (1992), 836 (1993), 871 (1993), and 908 (1994) regarding Bosnia and Herzegovina on grounds of the prohibition of the use of force, and on Security Council Resolution 998 (1995) regarding changing the mandate of the United Nations peacekeeping operation in Bosnia and Herzegovina to enforcement action. However, China voted affirmatively on draft Security Council Resolutions 836 (1993), 871 (1993), 908 (1994), 1031 (1995), and 1088 (1996) on grounds that Bosnia and Herzegovina consented to (and later requested) United Nations peacekeeping and that the situation on the ground had become exceptional, although it reiterated its opposition to the use of force. China also voted in favour of draft Security Council Resolution 1037 (1996) regarding Croatia on grounds that Croatia requested United Nations peacekeeping, while reiterating its opposition to the use of force, and in favour of draft Security Council Resolution 794 (1992) regarding Somalia due to the exceptional nature of the situation on the ground.Footnote 127 China abstained on draft Security Council Resolution 975 (1995) regarding Haiti, although it eventually voted in favour of draft Security Council Resolutions 1048 (1995) and 1063 (1996) after Haiti requested peacekeeping assistance. China's Ministry of Foreign Affairs explained that China abstained on draft Security Council Resolution 929 (1994) on establishing a temporary multinational humanitarian operation in Rwanda because
[w]e have consistently argued that the indispensable condition for the UN peacekeeping operations to succeed is to gain consent from the parties concerned and to cooperate with the affected states and regional organizations. It is still hard to ensure that the Security Council's resolution that approves of taking action will gain consent and cooperation from the affected parties.Footnote 128
China abstained on draft Security Council Resolution 955 (1994) on establishing an international tribunal for crimes committed in Rwanda out of concern that the principles of state sovereignty and of non-interference in other states’ internal affairs would be undermined.
Concerning the humanitarian crisis and NATO intervention in Kosovo, China abstained on draft Security Council Resolutions 1160 (1998), 1199 (1998), 1203 (1998), 1239 (1999), and 1244 (1999), and in three of the five instances provided the only non-affirmative vote. Pang Zhongying argues that
[c]entral to Chinese concerns is the changing nature and context of peace operations – with the potential for mission creep and the move to ‘coalitions of the willing’ – and the implications these would have for international involvement in China's key internal affairs relating, for example, to Taiwan, Tibet, and Xinjiang.Footnote 129
China explained its abstention on draft Security Council Resolution 1160 (1998) on grounds that
ethnic issues are extremely complicated and sensitive, especially in the Balkans. On the one hand, the legitimate rights and interests of all ethnic groups should be protected; on the other, secessionist activities by various extremist elements should be prevented . . . If the Council is to get involved in a dispute without a request from the country concerned, it may set bad precedent and have wider negative implications.Footnote 130
After NATO commenced bombing over the Federal Republic of Yugoslavia (Serbia and Montenegro) on 24 March 1999, at the Security Council meeting on 10 June 1999 aimed to confirm a ceasefire agreement through draft Security Council Resolution 1244 (1999), China abstained in the vote and stated thus:
NATO seriously violated the Charter of the United Nations and norms of international law, and undermined the authority of the Security Council, thus setting an extremely dangerous precedent in the history of international relations.
. . . Respect for sovereignty and non-interference in each other's internal affairs are basic principles of the United Nations Charter. Since the end of the Cold War, the international situation has undergone major changes, but those principles are by no means outdated. On the contrary, they have acquired even greater relevance. At the threshold of the new century, it is even more imperative for us to reaffirm those principles. In essence, the ‘human rights over sovereignty’ theory strives to infringe upon the sovereignty of other States and to promote hegemonism under the pretext of human rights. This totally runs counter to the purposes and principles of the United Nations Charter. The international community should maintain vigilance against it.
The draft resolution before us has failed to fully reflect China's principled stand and justified concerns. In particular, it makes no mention of the disaster caused by NATO bombing in the Federal Republic of Yugoslavia and it has failed to impose necessary restrictions on the invoking of Chapter VII of the United Nations Charter. Therefore, we have great difficulty with the draft resolution. However, in view of the fact that the Federal Republic of Yugoslavia has already accepted the peace plan, that NATO has suspended its bombing in the Federal Republic of Yugoslavia, and that the draft resolution has reaffirmed the purposes and principles of the United Nations Charter, the primary responsibility of the Security Council for the maintenance of international peace and security and the commitment of all Member States to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia, the Chinese delegation will not block the adoption of this draft resolution.Footnote 131
China's opposition to the notion of a right to humanitarian intervention is widely shared among developing states. The Group of 77 in 2000 categorically rejected the existence of such a purported right that ‘has no legal basis in the United Nations Charter or in the general principles of international law’.Footnote 132
Nonetheless, China has voted in favour of peacekeeping operations authorized under draft Security Council Resolutions 1264 (1999), 1272 (1999), 1410 (2002), and 1704 (2006) regarding East Timor (now Timor Leste); Security Council Resolutions 1270 (1999) and 1289 (2000) regarding Sierra Leone; Security Council Resolutions 1291 (2000) and 1671 (2006) regarding the Democratic Republic of the Congo; Security Council Resolution 1386 (2001) regarding Afghanistan; Security Council Resolutions 1464 (2003) and 1528 (2004) regarding Côte d’Ivoire; Security Council Resolutions 1497 (2003) and 1509 (2003) regarding Liberia; Security Council Resolutions 1529 (2004) and 1542 (2004) regarding Haiti; Security Council Resolution 1545 (2004) regarding Burundi; and Security Council Resolutions 1590 (2005) and 1769 (2007) regarding Sudan,Footnote 133 after previously abstaining on draft Security Council Resolutions 1556 (2004), 1564 (2004), 1593 (2005), 1679 (2006), and 1706 (2006)Footnote 134 on grounds that Sudan's consent had not been obtained and pressure on the Sudanese government would only worsen the situation, and out of ‘national judicial sovereignty’.Footnote 135 Stefan Stähle argues that the turning point of China's voting behaviour regarding United Nations peacekeeping was when it supported the Australian-led mission in 1999 to restore peace and security in East Timor and protect United Nations personnel on the ground.Footnote 136 Bates Gill and James Reilly assert that
[g]eographic proximity; a desire to respond in some way to anti-Chinese violence in Indonesia; initial involvement with the voting process; and a desire to retain UN authority, and thus Chinese influence, over issues of intervention and the use of force were all likely factors in China's ultimate policy choices.Footnote 137
China voted affirmatively on draft Security Council Resolution 1296 (2000), which stated that
the deliberate targeting of civilian populations or other protected persons and the committing of systematic, flagrant and widespread violations of international humanitarian and human rights law in situations of armed conflict may constitute a threat to international peace and security.Footnote 138
China has maintained that the success or otherwise of United Nations peacekeeping operations is heavily dependent on the ‘democratization of international relations’. At the Security Council debate on 21 June 2001 about the United Nations Secretary-General's 2001 report on prevention of armed conflict,Footnote 139 China asserted thus:
The United Nations should play an important role in the promotion of the democratisation of international relations. Armed conflicts in the Middle East, the Balkans, the Great Lakes region of Africa and other countries and regions could be stopped as early as possible and new conflicts could be prevented if all sides concerned could really follow the basic norms guiding state-to-state relations. Although the role and capacity of the United Nations has its own limitations, as the Secretary-General has pointed out in the report, preventing armed conflict represents an important orientation in the field of maintaining international peace and security as well as an important task of the United Nations. China is willing to make its own contribution, together with other Member States, to strengthening the capacity of the United Nations for the prevention of armed conflict.Footnote 140
China's increased experience with peacekeeping operations has led it to depart from its previous unease. While China remained wary of blurring peacekeeping operations with peace-building activities, in 2001 it indicated its recognition that ‘peacekeeping operations, conflict prevention and peace-building activities had become increasingly intertwined’,Footnote 141 although it insisted that the host state should assume a ‘dominant role’ in resolving conflict.Footnote 142 In 2003, China indicated that, given the growing complexity of operations, traditional operations were no longer suited for certain types of conflict; the situations in the Democratic Republic of the Congo and in Liberia, for example, had highlighted the need for rapid, early and robust intervention’,Footnote 143 ‘including the use of enforcement measures where necessary’.Footnote 144 In 2004, China stated that military force, ‘where necessary’,Footnote 145 constituted an essential part of peacekeeping operations:
In conflict management, the roles of military action and that of the civilian elements are closely interrelated and predicated on one another.. . .Military success guarantees the presence of a civilian role, which is an essential and indispensable element in any post-conflict reconstruction.Footnote 146
In 2005, President Hu Jintao stated that China was in support of a ‘comprehensive strategy featuring prevention, peace restoration, peacekeeping, and post-conflict reconstruction’.Footnote 147 Zhang Yesui, China's ambassador to the United States, stated at the Munich Conference on Security Policy in 2007 that China's increasing contribution to United Nations peacekeeping operations ‘reflected China's commitment to global security given the country's important role within the international system and the fact that its security and development are closely linked to that of the rest of the world’.Footnote 148 Major-General Zhang Qinsheng, deputy chief of the General Staff of the People's Liberation Army (PLA), at the PLA Peacekeeping Work Conference in Beijing in June 2007, stated that
active participation in the UN peacekeeping operations is . . . an important measure to display China's image of being a peace-loving and responsible big country and likewise an important avenue to get adapted to the needs of the revolution in military affairs in the world and enhance the quality construction of the army.Footnote 149
Chin-Hao Huang notes that
[i]n May 2009, the PLA General Staff Department announced that it would strengthen the PLA's emergency response system and rapid deployment capacity to respond to the various MOOTW [military operations other than war], including peacekeeping activities. In June 2009 the Central Military Commission, the PLA and five of the seven military area commands met in Beijing to strengthen and improve the PLA's peacekeeping role, discussing ways to streamline the selection, organization, training and rotation of Chinese peacekeepers.Footnote 150
On 26 April 2010, the PLA issued a special report commemorating China's contribution to international peacekeeping in the preceding two decades, which stated that
[u]p to the end of March 2010, the PLA has contributed peacekeepers over 15,000 persons/times to 18 UN peacekeeping missions worldwide. . .The Chinese peacekeeping troops have built and maintained over 8,000 kilometres of road, constructed 230-odd bridges and given medical treatment to patients for 60,000 persons/times in the UN peacekeeping mission areas, playing a positive role in promoting the peaceful settlement of disputes, maintaining the regional safety and stability, and facilitating the economical and social development in some countries.Footnote 151
According to United Nations data, China has increased its personnel contribution to peacekeeping operations twenty-fold and, with more than 2,100 peacekeepers abroad, has more troops under United Nations command than does any other Security Council permanent member.Footnote 152
As president of the Security Council during January–June 2010, China took the initiative to convene a thematic debate on 13 January 2010 to explore possibilities for strengthening co-operation and collaboration between the United Nations and regional and sub-regional organizations in the maintenance of international peace and security. In its concept paper,Footnote 153 while emphasizing the pre-eminence of the Security Council,Footnote 154 China indicated its wish to explore the comparative advantages that the United Nations and regional organizations may respectively possess and those that they may share in the maintenance of international peace and security, including in particular in conflict prevention, management, and resolution,Footnote 155 and how their respective roles and responsibilities may be better defined and delineated in accordance with the United Nations Charter.Footnote 156 China considered a collaborative partnership between the United Nations and regional and sub-regional organizations to be crucial in preventing, managing, and resolving conflicts, including nascent disputes and emerging crises, effectively,Footnote 157 and in encouraging states to ‘resolve differences and problems peacefully through dialogue, reconciliation, negotiation, good offices and mediation’.Footnote 158 Opportunities that such a thematic debate may generate aside, it marked the first time that China took the initiative as president of the Security Council to convene a thematic debate (and not due to previous Security Council decisions). According to Security Council Report, a not-for-profit organization affiliated with Columbia University, Security Council permanent members have largely been reluctant about holding thematic debates, which are generally initiated by non-permanent members during their Security Council presidencies.Footnote 159
4.2. Will China veto a draft Security Council resolution aimed at its conduct?
Due to their veto power, permanent members are often taken to be immune to the enforcement powers of the Security Council and, consequently, the constraints of international law. The possibility that China may veto proposed Security Council action aimed at its conduct, such as its violations of human rights, its lack of democratic governance, its treatment of Tibet, or its recourse to military force against Taiwan, is one that many have in mind when criticizing the legitimacy and effectiveness of the Security Council. As Andrew Hurrell argues, ‘[l]egitimacy implies a willingness to comply with rules or to accept a political order even if this goes against specific interests at specific times.’Footnote 160
During the 1970s China repeatedly criticized the United States’ and the Soviet Union's capacity and tendency to veto draft Security Council resolutions in order to exercise hegemony. In 1973, Ling Ching stated that
[t]he super-Powers were arguing very hard for their idea that it was only up to the Security Council to decide whether a specific act constituted an act of aggression. Obviously, what they had in mind was invariably their veto power in the Security Council. In the event of their aggression against other countries, they could remain unpunished by casting a single negative veto. Consequently it might well be asked whether the whole text of the definition of aggression would not become a mere scrap of paper.Footnote 161
Pursuant to Article 27(3) of the United Nations Charter, a Security Council (permanent) member that is ‘a party to a dispute’ shall abstain in relevant decisions under Chapter VI or under Article 52(3) of the Charter.Footnote 162 Yuen-Li Liang, who was chairperson of the Committee of Experts of the Security Council that met during March–April 1946 to Study the Rules of Procedure of the Security Council, explained that by virtue of the fact that the term ‘dispute’ and not ‘situation’ is used in Article 27(3), the Security Council is not under any obligation to invite a non-member concerned in a ‘situation’ to participate in its proceedings without vote, unlike Article 32 in a case that constitutes a dispute, and it is for the Security Council alone to decide whether a matter constitutes a dispute.Footnote 163 The Article 27(3) abstention requirement does not apply to Chapter VII, with which enforcement powers, not recommendatory powers, of the Security Council lie. Reisman thus argues that
since Article 39 permits the Council, when exercising chapter VII powers, to make either recommendations or decisions as it sees fit, the permanent members of the Council can evade Article 27(3) by operating under chapter VII or. . .by simply not indicating whether the resolution in question is being adopted under chapter VI or chapter VII.Footnote 164
As China always is able to rely on Article 2(7) of the Charter to shield itself from interference in its internal affairs, it will not need to veto a draft Security Council resolution intended to condemn it for its human rights violations, its lack of democratic governance, or its treatment of Tibet. The most likely scenario in which China might veto a draft Security Council resolution aimed at its conduct is if the draft resolution were to condemn its use of force against Taiwan and demand that it cease and desist, a draft resolution that undoubtedly would fall under Chapter VII. Article 27(3) will not apply if Taiwan applies for United Nations membership. China will be able to veto Taiwan's application given that admission to United Nations membership requires a decision of the General Assembly upon recommendation of the Security Council.Footnote 165 China will not be a party to a dispute or situation if a territorial entity, even Taiwan, applies for United Nations membership – as when China, represented by the authorities on Taiwan at the time, was able to veto Mongolia's application for United Nations membership in 1955 on grounds that Mongolia was part of China. Another scenario in which Article 27(3) might apply is a draft Security Council resolution calling for abolition of the veto that a United Nations member state might argue to be a cause of international peace and security continuing to be endangered, as it is arguable that as a permanent member China constitutes a party to the dispute (even though United Nations institutional reform should properly be construed as a situation). However, even if Article 27(3) were to apply, the other permanent members also would be required to abstain, and Article 27(3) requires nine affirmative votes for a decision to be made. Most fundamentally, abolition of the veto cannot take place without an amendment to the Charter, which requires ratifications of all permanent members.Footnote 166
5. Conclusion
Recent humanitarian crises in Libya and Syria have made the Security Council the focal point of renaissance and, simultaneously, criticism of the utility, effectiveness, and legitimacy of the United Nations and of international law. The Security Council managed to pass seven draft resolutions (six unanimously) imposing sanctions on the Libyan government for its use of violence against its citizens, authorizing a no-fly zone over Libya to protect Libya's civilian population, and establishing a United Nations Support Mission in Libya whose mandate was extended twice.Footnote 167 However, on account of China's joint vetoes with Russia on two occasions, 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 resolutions that would have authorized military intervention in the internal conflict in Syria.
While many argue that China, through its vetoes in respect of Syria, has shown that it is unfit to be a responsible world power, as it has misused its role and power within the Security Council to continue to protect an ally from international intervention, China's capacity to veto a draft resolution – and its willingness to do so notwithstanding Western pressure and criticism within the Security Council and international media – is precisely why the veto is constitutionally built into the structure of the United Nations and the current international legal order. Criticism of China's vetoes as recalcitrant ignores the possibility that China may have real interest and intention in ensuring that the legitimacy of international law, the Security Council, its decision-making process and procedures, and its decisions is not jeopardized by any unilateral action that other states may wish to pursue. It ought not to be forgotten that China is the only permanent member that is non-Western and plausibly capable of claiming to represent developing states, many of which might rely on China's veto power to protect their own interests.
Interests aside, when China voted on draft Security Council resolutions, both recently and in the past, it referred to international legal norms and principles, which many Western states and scholars preferred not to mention when they were inconvenient, notably the principles of state sovereignty and of non-interference by the United Nations in the internal affairs of a member state, as well as the prohibition of the use of force. At the same time, China has shown readiness to be flexible in the application of international law through peacekeeping operations in order to protect civilians mired in internal conflicts. China now actively supports and participates in peacekeeping operations authorized by the Security Council, provided that the three principles of international peacekeeping – that the consent of the host state concerned has been obtained, that any peacekeeping operation must be impartial, and that force must not be used except in self-defence – are met. Furthermore, China has taken initiatives to explore possibilities for strengthening the United Nations in the maintenance of international peace and security.
If one were to speak of the international rule of law, China, through its voting behaviour and argumentation within the Security Council, has demonstrated the importance it ascribes international law as the perimeter within which the current international order ought to function. China certainly should not be criticized for impeding the progressive development of international law in instances where progressive development is merely a code for violations. At a Security Council meeting on 4 May 2011, China emphasized the importance of
the complete and strict implementation of the relevant resolutions of the Security Council. The international community must respect the sovereignty, independence, unity and territorial integrity of Libya. The internal affairs and fate of Libya must be left up to the Libyan people to decide. We are not in favour of any arbitrary interpretation of the Council's resolutions or of any actions going beyond those mandated by the Council.Footnote 168
At a subsequent Security Council meeting, China cautioned that
the strengthening of the protection of civilians in armed conflict must strictly abide by the purposes and principles of the Charter of the United Nations. The responsibility to protect civilians lies first and foremost with the Government of the country concerned. The international community and external organizations can provide constructive assistance, but they must observe the principles of objectivity and neutrality and fully respect the independence, sovereignty, unity and territorial integrity of the country concerned. There must be no attempt at regime change or involvement in civil war by any party under the guise of protecting civilians.Footnote 169
On 4 October 2011, China vetoed the first of two draft Security Council resolutions in respect of the internal conflict in Syria as it found that
under the current circumstances, sanctions or the threat thereof does not help to resolve the question of Syria and, instead, may further complicate the situation. Regrettably and disappointingly, this major and legitimate concern did not receive due attention from the sponsors. As it now stands, the draft resolution focuses solely on exerting pressure on Syria, even threatening to impose sanctions. It does not help to facilitate the easing of the situation in Syria.Footnote 170
China's vetoes (jointly with Russia) of two draft Security Council resolutions that sought to impose sanctions on Syria, after its support for action authorized by the Security Council and delegated to NATO against Libya, arguably manifested China's concern about civilian casualties caused by NATO in Libya and NATO's exceeding its mandate under Security Council Resolution 1973 (2011) by targeting the Gaddafi regime and providing arms to rebel groups.Footnote 171 In fact, China's position was taken further by a number of other Security Council members, notably Russia, Brazil, and India. Russia drew a direct link between NATO's action in Libya and its proposed action in Syria, and asserted that ‘[t]he international community is alarmed by statements that compliance with Security Council resolutions on Libya in the NATO interpretation is a model for the future actions of NATO in implementing the responsibility to protect.’Footnote 172 Brazil released a concept note that warned of ‘a growing perception that the concept of the responsibility to protect might be misused for purposes other than protecting civilians, such as regime change. This perception may make it even more difficult to attain the protection objectives pursued by the international community’,Footnote 173 while India concisely charged that ‘Libya has given R2P a bad name’.Footnote 174 Thus, one should be cautious before criticizing the rationales underlying China's vetoes in respect of Syria, and should not take China's support for peacekeeping operations for granted or assume that China vetoes a draft Security Council resolution out of its own interests or intransigence or the interests of its allies. Instead, Western powers and the international community as a whole ought to reflect on whether their desire to push aggressively for recognition and enforcement of purported international legal norms, such as a right or duty of humanitarian intervention or a responsibility to protect (or a responsibility to be protected), may actually delay, if not preclude, the actual crystallization and consolidation of such purported norms; prevent the protection of civilians in internal conflicts; endanger peace within a state, within a region, and internationally; and above all undermine the integrity of international law and destroy the foundation upon which protection of civilians and peace depends.
