No constitution enjoys perpetual legitimacy simply because it once commanded political acceptance.
Constitutions endure because successive generations continue to recognise the authority they exercise. The United Nations Charter is no exception.
Although formally a multilateral treaty, it functions as the constitution of the contemporary international legal order.
It establishes the institutions of global governance, allocates authority among them, and entrusts the Security Council with primary responsibility for maintaining international peace and security.
Like any constitution, the Charter should ultimately be judged by the standards we apply to all constitutional orders. Like every constitution, it should ultimately be judged not only by how it was created but by how it performs the extraordinary constitutional responsibilities entrusted to it.
That is the constitutional question the international community has been remarkably reluctant to ask.
There is an assumption that has rarely been examined: that the Security Council continues to possess the constitutional legitimacy necessary to exercise a near monopoly over the maintenance of international peace and security.
That assumption deserves closer scrutiny.
Related
For more than half a century, governments and scholars have debated how the Security Council should be reformed.
They have proposed expanding permanent membership, limiting the veto, strengthening regional representation, and improving accountability. These proposals differ in important respects, but they share a common premise.
They assume that the constitutional settlement negotiated in San Francisco in 1945 continues to command the legitimacy necessary to govern a profoundly transformed international community.
President Recep Tayyip Erdogan has long argued that “the world is bigger than five,” stressing the need for the Security Council to better reflect today’s geopolitical realities rather than the interests of its five permanent members.
He says the current international system has struggled to respond effectively to conflicts, terrorism, pandemics, and other global crises, and advocates a more inclusive and just multilateral order.
The real constitutional question lies one level deeper. Before asking how the Security Council should be reformed, we should first ask whether it continues to deserve the extraordinary constitutional authority it exercises.
When the Charter entered into force, the United Nations consisted of just fifty-one member states. Most of Africa remained under colonial rule. Much of Asia had yet to achieve independence.
Only a handful of Middle Eastern states participated in the founding conference.
The overwhelming majority of today’s 193 member states neither participated in the negotiation of the constitutional allocation of authority embodied in the Security Council nor exercised any meaningful influence over its design.
More importantly, the distribution of authority reflected in the Charter was never the product of constitutional principle. The veto was not adopted because it embodied democratic legitimacy, sovereign equality, or the rule of law.
It was the political price demanded by the victorious powers of the Second World War for participating in the new organisation.
That compromise may well have been understandable in 1945. Constitutional settlements are rarely products of philosophical perfection. They are products of political necessity. But constitutional legitimacy is not frozen in time.
Constitutional allocation of power
Every constitution rests upon assumptions about the political community it governs. When those assumptions fundamentally change, constitutional lawyers instinctively ask whether institutions continue to deserve the authority they exercise.
International lawyers have been remarkably reluctant to ask that same question of the United Nations Charter.
International law itself recognises that radically altered circumstances matter. The doctrine of rebus sic stantibus allows treaties to be reconsidered when the assumptions upon which they were founded have fundamentally changed.
Although narrowly applied, it reflects a broader constitutional insight. Legitimacy cannot remain permanently detached from profoundly altered historical realities.
The world of 1945 has disappeared, but the constitutional allocation of power established in 1945 has not.
This is not an argument that the Security Council has occasionally failed. Every constitutional institution fails. Legislatures enact unwise laws. Courts issue controversial judgments. Executives abuse power.
Constitutional legitimacy is not measured by isolated mistakes. The constitutional question changes when failure ceases to be episodic and becomes structural.
The historical record is difficult to escape. Rwanda revealed catastrophic institutional paralysis in the face of genocide. Srebrenica demonstrated the inability of the international community to protect civilians even within areas designated as safe.
Kosovo exposed profound disagreement over humanitarian intervention outside the Charter framework. Iraq demonstrated a permanent member’s willingness to bypass the Security Council when legal constraints became politically inconvenient.
Repeated military interventions undertaken by the United States across the Middle East and elsewhere reinforced the perception that the Charter’s restraints increasingly bind the weak more than the powerful.
More recently, the bombing of Iran without Security Council authorisation, coupled with rhetoric suggesting the possible acquisition of Greenland despite the Charter’s prohibition on the threat or use of force against the territorial integrity or political independence of states, further underscored major powers’ growing willingness to subordinate constitutional principle to geopolitical calculation.
Syria repeatedly demonstrated how the veto could shield geopolitical allies from meaningful collective action. Ukraine exposed the constitutional absurdity of allowing a permanent member accused of aggression to frustrate decisive institutional responses.
Gaza has once again revealed how profoundly legal principle can be subordinated to geopolitical calculation.
Each crisis involved distinct legal and political complexities. Yet together they reveal a common constitutional pattern.
Decisions that ought to turn on legal principle repeatedly become contingent on whether the interests of one or more permanent members are engaged.
