Proposals for UN Security Council Reform

Author(s): Yehuda Z. Blum

Source: The American Journal of International Law, Vol. 99, No. 3 (Jul., 2005), pp. 632-649
Published by: American Society of International Law
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PROPOSALS FOR UN SECURITY COUNCIL REFORM

By YehudaZ. Blum*
On December 2, 2004, United Nations secretary-generalKofiAnnan circulatedthe report submitted to him by a sixteen-member high-level panel that he had appointed to address "threats,
challenges and change" confronting the United Nations in the coming years.1The secretarygeneral had requested that the panel, inter alia, "make recommendations for strengthening
the United Nations so that it can provide collective securityfor all in the twenty-firstcentury."2
A list of 101 recommendations are summarized in Annex I of the panel's report3 and deal
with a wide range of problems facing the international community. Of them all, the recommendation concerning the enlargement of the Security Council (with two alternative models
envisaging such enlargement)4has attractedthe greatest attention internationally, despite the
caveat contained in the transmittalletter of the panel's report that "itwould be a major error
to allow the discussions needed to move towardsa decision between the two options [concerning the enlargement of the Security Council] to divert attention from decisions on the many
other necessary proposals for change."5
Indeed, the panel's recommendations address such central issues of contemporary international relations as the use of force and self-defense,6 peacekeeping and peace enforcement,7
terrorism and transnationalorganized crime,8weapons of mass destruction,9and poverty, diseases, and environmental issues.10Moreover, the panel not only recommends overhauling the
work of some UN organs," but also suggests some amendments to the Charter, in addition to
Hersch Lauterpacht Professor of International Law (Emeritus), The Hebrew University of Jerusalem.
A More Secure World: Our Shared Responsibility, Report of the High-Level Panel on Threats, Challenges
and Change, UN Doc. A/59/565, at 8 (2004), availableat <http://www.un.org/secureworld/report.pdf> [hereinafter
Panel Report]. The panel was headed by former prime minister Anand Panyarachun of Thailand. The other
members came from Australia, Brazil, China, Egypt, France, Ghana, India,Japan, Norway, Pakistan, Russia, Tanzania, the United Kingdom, the United States, and Uruguay. According to the secretary-general, the panel was
composed of "eminent persons from around the world, who represent a wide range of experience and expertise,"
thus implying that they had been appointed in their personal capacity and by virtue of their personal qualities
and professional expertise. Note by the Secretary-GeneralTransmitting Report of the High-Level Panel on Threats,
Challenges and Change, UN Docs. A/59/565 & Corr. 1, at 1, para. 2 (2004) [hereinafter Note by the SecretaryGeneral]. The panel's overall composition, however, closely reflected that of the Security Council by including
eminent persons on the basis of the geographical distribution of its seats among the various regional groups,
as well as nationals of the five permanent members. The only departure from this pattern was the absence from
the panel of an eminent person from the group of eastern European states (formerly states of the Soviet bloc).
This lack can perhaps be explained by the fact that "Europe" as a whole was treated as one of the four "regional
areas" referred to in the panel's report. Panel Report, supra, at 67, para. 251.
2
Note by the Secretary-General, supra note 1, para. 3.
3 Panel
Report, supra note 1, at 78-92.
4
Id. at 66-69; Recommendations 73-79, id. at 87-88.
5Transmittal Letter Dated 1 December
2004 from the Chair of the High-Level Panel on Threats, Challenges
and Change Addressed to the Secretary-General, UN Doc. A/59/565, at 6, 6. Secretary-General Annan, in his
report of March 21, 2005, sounded the same warning. In Larger Freedom: Towards Development, Security and
Human Rights for All, Report of the Secretary-General, UN Doc. A/59/2005 & annex, at 60, para. 8(c), available
at <http://www.un.org/largerfreedom/contents.htm> [hereinafter Report of the Secretary-General].
6 Panel
Report, supra note 1, at 53-58.
7
Id. at 58-60.
8 Id. at 45-51.
9 Id. at 38-45.
'1 Id. at 26-31.
" For
instance, after leveling exceptionally sharp criticism at the Commission on Human Rights, the panel
recommends that it be expanded to universal membership. Id. at 74, para. 285. In the words of the report, "The
Commission on Human Rights suffers from a legitimacy deficit that casts doubts on the overall reputation of the
United Nations." Id. at 64. In an editorial of March 26, 2005, the New YorkTimescalled the Commission "one
of the United Nations' great embarrassments, . . letting egregious violators of human rights like Cuba, Libya
and Sudan sit injudgment of other countries' performance." The U.N. Fightsfor Its Future, N.Y. TIMES, Mar. 26,
2005, at A12. The Report of the Secretary-General, supra note 5, at 45, para. 182, echoes the panel's criticism
of the Commission, stating that

2005]

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633

those necessitated by the proposed enlargement of the SecurityCouncil. Those recommendations-termed as "modest"by the panel'2-propose the deletion of Chapter 13 of the UN Charter
(dealing with the Trusteeship Council),'3 its Article 47 (the Military Staff Committee), and
related provisions in other Charterarticles,14 and the revision of the "enemyStates"provisions
in Articles 107 and 53 of the Charter. 5The following pages, however,will focus on the proposals concerning the enlargement of the Security Council.
I. ENLARGEMENTOF THE SECURITY COUNCIL

As indicated, the proposals on enlarging the Security Council have understandably drawn
the greatest interest of all the recommendations submitted by the panel. This interest is obviously motivated by broad considerations relating to the role (and responsibility) of the major
actors in international relations with regard to the maintenance of international peace and
security.As the report puts it, "thosewho contribute most to the Organization financially, militarilyand diplomaticallyshould participatemore in Council decision-making.... The Security
Council needs greatercredibility,legitimacyand representationto do all thatwe demand of it."'6
the Commission's capacity to perform its tasks has been increasingly undermined by its declining credibility
and professionalism.... States have sought membership of the Commission not to strengthen human rights
but to protect themselves against criticism or criticize others. As a result, a credibility deficit has developed,
which casts a shadow on the reputation of the United Nations system as a whole.
See also Human Rights and the U.N., N.Y. TIMES,May 3, 2005, at A24 (editorial).
12 Panel
Report, supra note 1, Recommendation 97, at 92.
13
Id. at 77, para. 299. In the words of the panel, "The Trusteeship Council ... performed an important task
in helping the world emerge from the era of colonialism and steering many cases of successful decolonization.
The United Nations should turn its back on any attempt to return to the mentalities and forms of colonialism."
Id. Oddly enough, while the panel recommends the deletion of the chapter dealing with the Trusteeship Council,
it does not even mention Chapters 11 and 12 of the Charter, which set forth the admittedly outdated concepts of
non-self-governing territories and the trusteeship system,respectively. It is not clear how the panel envisages the
survival of the trusteeship system once the Trusteeship Council is dismantled. It would have been more logical
to delete Chapters 11 and 12 while retaining Chapter 13 and adjusting it to the new international realities. Since
under Article 81 of the Charter not only individual states but also the United Nations may serve as an "administering authority"of a territory placed under trusteeship, the Trusteeship Council may still serve a useful purposeat least on a transitional basis-in some future crisis situations around the globe. A UN "administering authority"
could better dispel the well-justified suspicion that arises whenever an individual state acts in that capacity; such
a state is often suspected of using the trusteeship system (and its predecessor, the mandate system of the League
of Nations era) as a cloak for the promotion of its selfish colonial interests. However, Secretary-General Annan
fully endorsed the panel's position. Report of the Secretary-General, supra note 5, at 52, para. 218.
1 Panel Report, supra note 1, at 77, para. 300. Article 47 of the Charter established a Military Staff Committee
consisting of the chiefs of staff of the five permanent members of the Security Council or their representatives, based
on the (unfulfilled) assumption that those five powers-acting in unison-would assist the Council and coordinate
their activities aimed at maintaining international peace and security. While the committee continued its paper
existence, its activities over the years have been reduced to ritual monthly luncheons at UN headquarters. In correctly recommending the deletion of Article 47, as well as the references to it in Articles 26, 45, and 46, the panel
diplomatically states that "[i]t is no longer appropriate for the joint chiefs of staff... to play the role imagined
for them in 1945." Id.; seealso Recommendation 100, id. at 92. Here, too, the secretary-general endorsed the panel's
position. Report of the Secretary-General, supra note 5, at 52, para. 219.
15
Panel Report, supra note 1, at 77, para. 298. Article 107 of the Charter (located in Chapter 17, Transitional
Security Arrangements) was intended to enable and validate action in relation to any state that during World War
II had been an enemy of any Charter signatory. Clearly intended as a transitionalmeasure, it can no longer be
invoked now against those states, all of which have been UN members for decades and are naturally entitled to
"sovereign equality" enshrined in Article 2(1). However, the provision (and the reference to it in Article 53)even if now obsolete on the legal level-may still retain a certain symbolic significance, by reminding the United
Nations and the world at large that the UN Organizationgrew out of the great wartime UN coalitionthat defeated
the Axis powers and their allies in World War II. The vague reference to the UN origins in the preambular paragraph pledging "to save succeeding generations from the scourge ofwar, which twice in our lifetime has brought
untold sorrow to mankind" can hardly serve as such a reminder. Significantly, the panel did not recommend the
deletionof Article 107 and the reference to it in Article 53 but only their revision, to be "appropriately drafted to
avoid retroactively undermining the legal provisions of these articles." Id. In this author's view, any revision of
these articles should also take into account the need to avoid undermining their ideological-as distinct from their
legal-implications. However, the secretary-general has gone beyond the panel's recommendation, stating that
"it is high time to eliminatethe anachronistic 'enemy' clauses in Articles 53 and 107 of the Charter." Report of the
Secretary-General,
supra note 5, at 52, para. 217 (emphasis added).
16
Panel Report, supra note 1, at 64.

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The report attempts to strike a balance in this regard between two major considerations that,
in its view, should govern the composition of the Council: contributionto the Organization
on the
(financial, military, and diplomatic), on the one hand, and overall "representativenesss,"
other hand. These twin considerations may not alwaysgo hand in hand, and on occasion may
even clash with one another. A state may be a major financial contributor to the United Nations
without having commensurate militaryclout, and, conversely, some states may have the appropriate military capability without making a meaningful financial contribution to the United
Nations. Moreover, if "representativeness"is also taken to include the size of a state's population, then some of the most "representative"members of the Organization, namely, those with
the largest populations, are far from being among the major financial contributors (owing to
their low average per capita gross national product).
This dilemma surfaced as early as the period after World War I, when it preoccupied the
founders of the League of Nations. The drafters of its Covenant determined that the Council
of the League (which, significantly,was referred to in the early drafts as the ExecutiveCouncil,
indicating that it was envisaged as the League's executive branch'7)would initially "consist of
Representativesof the [five] PrincipalAllied and Associated Powers,together with Representatives of four other Members of the League ... selected by the Assembly from time to time in
its discretion."'8
Thus, the League'sdraftersoriginallyopted for giving a (slight)preponderance of votes to the
majorvictorious powers of the day, France, Great Britain, Italy,Japan, and the United States.19
But it was also claimed that those five powers-when the overseas possessions of the first three
were taken into account-represented about 700 million people, that is, a majorityof the estimated 1.25 billion globalpopulationat thattime.20Sincethe United Statesdid notjoin the League,
however, the Council consisted from the outset of only eight members-four permanent and
four nonpermanent.
Unlike the United Nations Charter,the Covenantwas rather flexible with regard to changes
in the size and composition of the Council:whereas the Charternow requires a formal amendment for any such change, the League Council's overall size and the number of both its permanent and its nonpermanent members could be increasedby the Council itself,with the approval
of the majority of the Assembly.21Moreover, the Covenant-again unlike the UN Charterempowered the League Assembly, by a two-thirdsmajority, to fix the rules regarding the election of nonpermanent members of the Council, including in particulartheir terms of office and
the conditions of re-eligibility.22Since the League permitted the immediate reelection of nonpermanent members, a category sometimes referred to as "semi-permanent"or "permanent
nonpermanent" members came into being,23which included Brazil (until its withdrawalfrom
the League in 1928), Spain, and Poland.24By contrast, Article 23(1) of the Charter now fixes
the number of both the permanent and the nonpermanent members of the Council, while
Article 23(2) specifies the length of the term of the nonpermanent members (two years) and
prohibits their immediate reelection.25
17WALTHERSCHUCKING& HANS WEHBERG,DIE SATZUNGDESVOLKERBUNDES:KOMMENTIERT204
(1921). The

terms "Executive Committee" and "Executive Council" were also used in the various drafts of the UN Charter
in 1943-1944. See infra note 29.
"1LEAGUEOF NATIONS COVENANT Art. 4(1); see LELAND M. GOODRICH, EDVARDHAMBRO, & ANNE PATRICIA
SIMONS, CHARTER OF THE UNITED NATIONS 654 (3d rev. ed. 1969).
"9The question of the veto did not arise in this connection because, as a rule, the decisions of both the Assembly
and the Council required unanimity. LEAGUE
OFNATIONSCOVENANT
Art. 5(1); GOODRICH,
& SIMONS,
HAMBRO,
supra note 18, at 655.
20SCHUCKING
& WEHBERG,
supra note 17, at 206.
21 LEAGUE
OFNATIONSCOVENANT
Art. 5(2); GOODRICH,
HAMBRO,& SIMONS,supra note 18, at 654.
22LEAGUEOFNATIONSCOVENANT
Art. 5(2) bis.
23
2 GEORGDAHM,VOLKERRECHT
214 (1961).
24 Id.

25

At the San Francisco Conference, amendments to allow for immediate reelection were overwhelmingly
defeated, "the chief argument against the principle being that it might 'do away with the distinction between

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635

The League Council made ample use of these powers. In 1922 it increased the number of
its nonpermanent members to six, which brought its total membership to ten.26In 1926, when
Germanywas admitted to the League and to the Council as the fifth permanent member, the
total Council membership was also raised to fourteen.27Nazi Germany (followed by Japan)
withdrewfrom the League, with effect in 1935, and the Soviet Union was admitted in 1934 and
co-opted as a permanent member of the Council. In 1936 the number of nonpermanent members was again raised, from nine to eleven, but the number of permanent members was further
reduced, from four (Britain,France,Italy,and the Soviet Union)28to two, through the withdrawal
of Italy and the expulsion of the Soviet Union in 1939. Thus was the Council transformedfrom the original conception of the Covenant's drafters as an organ with a slight majority of
permanent members-into one that was overwhelmingly dominated by the nonpermanent
(including "semi-permanent")members.
At an early stage of the preparatorywork for the United Nations Charter in 1944, the U.S.
Department of State's technical committee already recognized that "changes in the composition of both the Executive Committee and the [Executive]Council might be necessary in the
future to meet altered political conditions."29However, in an obvious attempt to avoid a repetition of the League's experience, the Dumbarton Oaks draft of the Charter (workedout in September 1944 by the representatives of China, Great Britain, the Soviet Union, and the United
States) fixed the number of members of the Security Council at eleven-five permanent and
six nonpermanent,30amounting to a deliberately slight preponderance of the nonpermanent
members.31The United States initially sought to secure a (sixth) permanent seat for Brazilbut
eventuallywithdrewits proposal because "ifthe permanent memberswere increased to six, the
total membership would have to become thirteen at least, if the principle of a slight preponderance of elected members was to be retained."32
The voting procedures of the SecurityCouncil were agreed upon at the tripartiteYaltaConference between Roosevelt, Churchill, and Stalin from February3 to 11, 1945, and enshrined
in Article 27 of the Charter, as adopted in San Franciscoon June 26, 1945. Under that article,
permanent and nonpermanent members,' a reminder of the development of semipermanent seats on the Council
of the League of Nations." RUTHB. RUSSELL
E. MUTHER,A HISTORYOFTHEUNITEDNATIONS
&JEANNETTE
CHARTER:
THE ROLEOFTHEUNITEDSTATES,1940-1945, at 649 (1958).
26
LeagueofNations, in 3 ENCYCLOPEDIAOFPUBLICINTERNATIONALLAW 177, 182 (Rudolf Bernhardt ed., 1997)
[hereinafter EPIL].
27

Id.
28 3 KARL
29

STRUPP & HANS-JURGEN SCHLOCHAUER,WORTERBUCHDES VOLKERRECHTS602 (1962).

RUSSELL& MUTHER, supranote 25, at 231. The term "Executive Committee" had already been used by Roose-

velt in his conversations with Stalin at the Teheran Conference of November 1943. Id. at 154-55. In the attachment to the memorandum submitted to Roosevelt by the U.S. State Department in December 1943 (entitled "Plan
for the Establishment of an International Organization for the Maintenance of International Peace and Security"), the term used was "Executive Council." Id. at 991. Since Roosevelt had expressed enthusiasm for entrusting security enforcement exclusively to the four majorAllied powers ("the four policemen"), the State Department's
technical committee (which did not favor such complete predominance of the great powers) came up with a compromise formula under which a four-power "Executive Committee" would form the nucleus within an elevenmember "Executive Council" (that would be "the general executive organ of the new institution"). The predominant position of the "Big Four" (laterjoined by France) would be guaranteed through both their permanent membership within the "Executive Council" and their right of veto on nonprocedural matters. Id. at 228-29. In the
Dumbarton Oaks Proposals of September 1944, both of these terms were replaced by "Security Council," but
the said privileged position of the great powers was still guaranteed. Id. at 1020, 1022.
30 Id. at 1022 (Dumbarton Oaks Proposals, ch. VI, sec. A).
31 Id. at 443.
32Id. In
retrospect it is not devoid of irony that in 1944-1945 the founders of the United Nations deemed even
a thirteen-member council as excessively large. Yet another curious argument against a thirteen-member council
was raised at Dumbarton Oaks, namely, that in such a council there would be an uneven number (seven) of elected
members, which might complicate the election process since only an even number would make it possible to elect
equal numbers each year. Id. Needless to say, it would have been perfectly possible to elect three and four members alternately in the annual elections. A more valid argument against a permanent Brazilian seat was raised
by Great Britain: that "any further increase in the number of permanent members ... would only open the door
to pressure for other additions." Id.

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all decisions of the Council required seven affirmativevotes; votes on substantive(that is, nonprocedural) matters33had to include "the concurring votes" of the permanent members. Even
though the right of veto of the permanent members was expressed in this way, in subsequent
practice abstention by one or more permanent members did not defeat a Council decision,34
provided that it was supported (prior to the Council'senlargement in 1965) by seven members.
Consequently,a Councildecisioncould actuallybe passedby any combinationof seven affirmative
votes that did not encounter a veto and was supportedby at least one of the permanent members.
For the selection of the nonpermanent members, Article 23(1) laid down two criteria:"in the
first instance," their contribution to the maintenance of international peace and security, and
second, equitable geographical distribution.The firstcriterion, although ostensibly of primary
concern, has in fact been discarded,as can readilybe ascertainedby even a cursoryperusalof the
list of nonpermanent members elected over the years. With regard to the second criterion, a
"gentlemen'sagreement"emerged whose exact nature became controversial.35During the first
two decades of the United Nations (that is, until the enlargement of the Council from eleven
to fifteen members),two such seatswere allocatedto the LatinAmericanstates,36two to the Western European and British Commonwealth states,37one to the (then very few)Africanand Asian
members, and one to the eastern European states, initially understood as applying to a state
belonging to the Soviet bloc. However, with the advent of the Cold War, the Western powers,
led by the United States,were increasingly inclined to apply a strictlygeographical-as distinct
from political-criterion in selecting the eastern European member, which resulted in the
repeated election of Turkey and the heretical "Titoist"Yugoslavia (a major snub of the Soviet
Union) to fill the eastern European nonpermanent seat.38
Pressure for the enlargement of the Security Council rapidly increased and came to a head
with the accession to independence and admission to the United Nations of scores of new states,
mostly from Africaand Asia. By the early 1960s, the original membership of the Organization
had almost tripled. The new members understandably felt underrepresented in the Council.
While dissatisfactionwith the size of the Council and its composition centered primarily on
the nonpermanent seats, some grumbling also concerned the permanent seats (and the concomitant right of veto). Variouscriticsclaimed that the "PermanentFive"no longer reflected the
real power relations of the 1960s, directing their challenges-mostly sotto voce-at the United
Kingdom and France, as well as at the anomalous situation of Taiwan, which until 1971 occupied the Chinese seat at the United Nations, including China'spermanent seat on the Security
Council. Some critics went even further by raising doubts as to whether Britain and Franceespeciallythe latter-had reallyqualifiedfor "GreatPower"statusin the Councilin the firstplace,
even in 1945. Afterall, France-having surrendered to Nazi Germanyin 1940-was not among
the participants in the Dumbarton Oaks Conference of September 1944; nor was it one of the
sponsoring powers of the San Francisco Conference of April-June 1945, which adopted the
Charterand established the United Nations.39Its eventual inclusion among the permanent five
33Forthe
problemsinherentin the distinctionbetweenproceduraland nonproceduralmatters,see GOODRICH,
&SIMONS,
HAMBRO,
supranote 18, at 216-25 (quotingStatementby the Delegationsof the FourSponsoring

Governments on Voting Procedure in the Security Council, submitted to the San Francisco Conference in 1945,
id. at 217-20); see also HANSKELSEN,THE LAWOFTHEUNITEDNATIONS245-55 (1950).
34For a critical appraisal of this practice (including an analysis of the various possible interpretations of the
relevant words of Article 27(3)), see KELSEN, supra note 33, at 240-44.
35
GOODRICH,
HAMBRO,& SIMONS,supra note 18, at 197, 199.
36As a result of the accession to
independence of a large number of Caribbean states, this regional group is now
known as the Latin American and Caribbean Group of States.
37 Now known as the Western and Other
Group of States [hereinafter WEOG].
38 The eastern
European seat was also split on several occasions between a state situated in that region and
a state of Africa or Asia, as a result of the admission of numerous new members from those regions. See GOODRICH,
HAMBRO, & SIMONS, supra note 18, at 198, tbl. 4.
39The
cold-shouldering of France in the early stages of the United Nations may well have accounted for the
pique felt by de Gaulle, throughout his political career, toward the Organization.

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637

was apparently prompted more by the nostalgia of Western statesmen40than by considerations

of realpolitik.This sentiment, though, did not necessarilyextend towardCharlesde Gaulle, the
leader of the "FreeFrench"during the war.41But the 1960s criticsquicklyabandoned these arguments, realizing that any prospect for constitutional
change in the composition of the Counciland
the powers of its permanent members was out of the question, since it required the consent of
those very members.42
In 1963, over initial Soviet opposition,43the General Assembly resolved that the Security
Council would be enlarged from eleven to fifteen members, that nine (instead of seven) votes
would be required for it to adopt any decision, and that five of the ten nonpermanent seats
would be allocated to the African and Asian states, two to the Latin American states, two to the
WEOG states, and one to the eastern European states.44Given this formal reallocation of the
nonpermanent seats, the Soviet Union eventuallyrelented and the amendment, after receiving
the requisite ratifications,went into effect on September 1, 1965.45
A side effect of that enlargement has been mostlyoverlooked:while no decision of the Council
could be adopted prior to 1965 without the support of at least one of the permanent members,
ever since that date-as there are now ten nonpermanent members and a decision requires
only nine affirmativevotes-valid decisions of the Council can be adopted even if all five permanent members abstain.46Thus, the requirement of nine affirmativevotes "includingthe concurring votes of the permanent members"has come in practice to mean nine affirmativevotes
"even if all the permanent members abstain from voting."47
The enlargement of the Council in 1963-1965, however, was not the end of the story. For
example, in 1980 a joint (and futile) African-Asian-LatinAmerican attempt was made to increase the Council's membership to twenty-one;five of the six additional nonpermanent seats
would be distributed among these three regional groups, and the sixth would rotate among all
regional groups with the exception of the Asian group. This initiative would not have affected
the number and veto rights of the permanent members and would have required fourteen
affirmativevotes for any Council decision.48
Ever since, two major factors have constantly militated in favor of further changes in the
Council's size and composition.
40
On the eve of France's surrender inJune 1940, Churchill-then in office for barely one month as British prime
minister-even proposed to the French government that the two countries be merged into a union, to spare the
French the trauma and humiliation of capitulation. At Yalta, "Churchill's insistence upon including France
among this small elite group [of permanent members of the Security Council] was accepted with ... skepticism by
Roosevelt and Stalin as to the postwar position ofFrance."GOODRICH,HAMBRO,
& SIMONS,supra note 18, at 193.
41 It is well-known that President Roosevelt did not take
kindly to de Gaulle's petulance, and even Churchill was
quoted as saying that the heaviest cross he had to carry during the war was the Cross of Lorraine (the emblem
of de Gaulle's "Free French").
42For the adoption of any amendment to the Charter, Article 108 requires a two-thirds majority of UN membership in the General Assembly, followed by ratification by two-thirds of the UN membership, "includingall the
permanentmembersof the SecurityCouncil"(emphasis added).
43
That opposition was prompted mainly by the continued occupation of the Chinese seat at the United Nations
by Taiwan.
4 GA Res. 1991A (XVIII) (Dec. 17, 1963).
45 Rosenne has pointed out that one of the features that the International Court of Justice has shared (since
1965) with the Security Council is that "[b]oth are today composed of fifteen members." 1 SHABTAIROSENNE,THE
LAWAND PRACTICEOFTHE INTERNATIONALCOURT, 1920-1996, at 66 (3d ed. 1997). The Court is, of course, comgosed ofjudges elected in theirpersonalcapacity, irrespective of their nationality, seeICJSTATUTEArt. 1,while memership on the Security Council is based on staterepresentation, see UN CHARTERArt. 23(1). Still, the same author
also states that "[i]n so far as concerns the [overall] composition of the Court, noticeable is ... the distribution of
seats among the regional groups recognized by the General Assembly." ROSENNE,supra,at 396. While the question
of the Court's enlargement has not been raised by the panel (or subsequently), in the long term the Security
Council's enlargement may conceivably trigger demands for the Court's expansion as well.
46
This happened in 1973, when in its Resolution 344 of December 15 the Council decided by ten (nonpermanent) votes, with four of its permanent members abstaining (and China not participating in the voting), to convene a conference on the Middle East in Geneva.
47See Yehuda Z. Blum, Sauterpour Mieux Reculer:The SecurityCouncil'sNew Look, 15 INT'L & COMP. L.Q. 863
(1966).
48
UN Doc. A/35/L.34/Rev.2 (1980).

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First, UN membership continued to grow rapidly, mainly because of the acceleration of the
decolonization process, the breakup of the former Soviet Union49and the former Yugoslavia,50
and the admission of several European microstates in the early 1990s.5'As of the time of this
writing, the membership stands at 191, that is, almost four times the original number.
Second, this quantitativechange was accompanied by an even more important qualitativeone,
expressed succinctly by an editorial in the New YorkTimesfollowing the release of the panel's
report. In considering the current composition of the SecurityCouncil-the "mostwidely discussed"of the panel's proposals-the editorial tersely assertsthat "the SecurityCouncil['s] ...
permanent membership reflects the power relations of 1945, not 2004."52
Indeed, a growing number of majoractors in the international community have rightly feltand have given this feeling increasinglyvocal expression-that their standingwithin the United
Nations in general, and the Security Council in particular, does not properly reflect their real
influence in international relations. Some of these nations point to their economic clout, which
is evidenced in their contributions to the Organization. Thus, the contribution of Japan, a
member of the United Nations since 1956 whose economy is the world's second largest, was set
for the years 2004-2006 at 19.468 percent of the regular UN budget, second only to that of the
United States at 22 percent (the maximum permitted individual contribution, known as "the
ceiling").53Likewise,the Federal Republicof Germany(admittedto the United Nations in 1973,
and incorporating since 1990 the former German Democratic Republic, simultaneously admitted), with the world's third largest economy, now contributes 8.662 percent to the regular
UN budget, the third largest contribution to it. 54
Other states-like India and Brazil-have pointed not only to the size of their populations,55
but also to their considerable contribution to UN peacekeeping operations around the world,
49On December 24, 1991, the Russian Federation, with the consent of the other republics of the former Soviet
Union, took over the Soviet seat at the United Nations, including the permanent seat on the Security Council. UN
Doc. 1991/RUSSIA, app.; UN Doc. 1991/RUSSIA. 1. The three Baltic republics (Estonia, Latvia, and Lithuania)
had already been admitted to the United Nations in September 1991 upon their secession from the Soviet Union.
The other former Soviet republics, with the exception of the Ukraine and Byelorussia (now Belarus)-two founding members of the Organization-were all later admitted to the United Nations. For the legal questions surrounding these developments, see Yehuda Z. Blum, Russia Takesoverthe SovietUnion'sSeatat the UnitedNations, 3 EUR.
J. INT'L L. 354 (1992).
50See Yehuda Z. Blum, UNMembershipofthe "New"Yugoslavia:Continuityor Break?86 AJIL 830 (1992). BosniaHerzegovina, Croatia, and Slovenia were admitted to the United Nations in 1992, and Macedonia (admitted as
"the Former Yugoslav Republic of Macedonia"-FYROM)in 1993. The shrunkenYugoslaviawas readmitted in 2000,
following the downfall of Yugoslav president Slobodan Milosevic, and changed its name in 2003 to "Serbia and
Montenegro." When the former Czechoslovakia split inJanuary 1993 into the Czech and Slovak Republics and
the Czechoslovak seat became extinct, the two new states were admitted to the Organization, as was Eritrea upon
its secession from Ethiopia in the same year.
51Liechtenstein was admitted in 1990, San Marino in 1992, and Monaco and Andorra in 1993. There was little
justification for excluding them once the Organization had admitted over the preceding two decades a large number of newly independent microstates (mostly island states) of the Caribbean, as well as of the Indian and Pacific
Oceans, some ofwhich displayed lesser qualifications of statehood than the above-mentioned European microstates.
On the problem of microstates' qualityas states and their membership in international organizations, see Microstates,
in EPIL, supra note 26, at 362-64, and the references cited there. See alsoJAMES CRAWFORD,THE CREATIONOF
STATESIN INTERNATIONALLAW139-41 (1979). The League of Nations took a negative attitude to the admission
of such states to its ranks. SCHUCKING&WEHBERG,supranote 17, at 148-49 (on Liechtenstein), 158 (on Monaco).
As of 2005, about 30 of the 191 UN members have a population of less than half a million, and about half of them
a population of less than one hundred thousand. The panel's report does not address this question.
52A U.N.
for the 21st Century,N.Y. TIMES, Dec. 7, 2004, at A26 (editorial). In an editorial of March 26, 2005,
the paper reiterated this argument, stating that "[t]he current line-up [of the Security Council], particularly the
five veto-wielding permanent members ... emerged from the geopolitics of 1945." The U.N. FightsforIts Future,
supra note 11.
53GA Res. 55/5B (Dec. 23, 2000), since reaffirmed by GA Res. 58/1B (Dec. 23, 2003). The same resolution fixed
"the floor" at 0.001% of the regular budget. For the years 2004-2006, this minimum contribution has been set for
forty-five members, with ten members contributing 0.002% each and eight members 0.003% each. Thus, the
combined contribution of sixty-three members (33% of the membership) is currently 0.089% of the budget.
54By way of comparison, France's contribution to the regular UN budget now amounts to 6.030%, the United
Kingdom's to 6.127%, China's to 2.053%, and the Russian Federation's to 1.100%.
55
In fact, India (which had been a member of the League of Nations) sought a permanent seat for itself at the
San Francisco Conference in 1945 (two years before becoming independent) and based its demand on the size
of its population. RUSSELL & MUTHER, supra note 25, at 648.

2005]

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639

a factorthat has also grownin importancein recentyearswith regardto Japan and Germany.Still,
while GermanyandJapan have relied mainlyon their financialcontributionsto the Organization,
India and Brazil(nowcontributing0.421 percent and 1.523 percent, respectively,to the regular
budget) have primarily, though not exclusively, invoked the "representativeness"factor.56
In UN practice some allowance for these claims has been made in recent decades by electing
these states with increased frequency as nonpermanent members of the SecurityCouncil, a de
facto reversion to the practice of the League of Nations of according "semi-permanent"membership to the "middle powers"(though, as noted above, consecutive terms are now prohibited
under Article23(2) of the Charter).Japan and Brazilhave servednine termseach in the Security
Council and Argentina,eight terms. India and Pakistanhave servedsix (nonsimultaneous)terms
each, as have Canada and Colombia. And Egypt, the Netherlands, Italy, and Germany have
served five terms each (the latter including the term of the German Democratic Republic in
1980-1981).
This partial corrective, however, satisfied neither its beneficiaries nor the other members of
the United Nations. The "middle powers" thus rewarded resented it because they perceived
it as perpetuating their inferior statusvis-a-visthe permanent members,while most other states
viewed it as impeding the rotational system aimed at "equitablegeographical distribution"of
the nonpermanent seats under Article 23(1) of the Charter.They understood this provision to
mandate equitable distribution not only betweenthe various regional groups57 but also within
those groups. The frequent reelection of some states diminished their own chances to serve on
the Security Council.
It is against this historical and current background that the panel's recommendations with
regard to the enlargement of the SecurityCouncil must be viewed. In the panel's opinion, the
SecurityCouncil "wascreated to be notjust a representativebut a responsiblebody, one that had
the capacity for decisive action."58To this end, the "fivepermanent members were given veto
rights but were also expected to shoulder an extra burden in promoting global security."59
Although since 1945 there has been a change in "the distributionof power among members....
the Security Council has been slow to change."60Decisions of the Council "requireextensive
military, financial and political involvement by other States,"but the Council'sdecisions "have
often lacked the essential components of realism, adequate resources and the political determination to see them through."61
While all these observationsare clearly tilted in favor of "responsible"statescapable of shouldering the military and financial burdens associated with the Council's decisions, the panel
becomes even more outspoken by stating that the "financialand military contributions to the
United Nations of some of the five permanent members are modest compared to their special
status,and often the Council'snon-permanentmembershave been unable to make the necessary
.6 India has the second largest population in the world, estimated at 1.1 billion. Brazil's population is estimated
at around 200 million.
& SIMONS,
HAMBRO,
57 As pointed out by GOODRICH,
supra note 18, at 199, "There has been a tendency on the
part of many members to interpret the term 'geographical distribution' as meaning 'regional representation."'
These authors quote the prescient warning, issued by the Chinese representative as early as the first session of
the General Assembly, that "there were states which belong to a given region but not necessarily to a particular
group in that region," and that if "any vacancy ... should always be filled by another Member of the same group
or region, [then some states] would always be excluded from obtaining a place on the Council .... [This would]
obviously be ... detrimental to the best interests of the Organization." Id. (and the reference there).
Israel is a case in point. Because of Arab opposition, it was excluded from the regional group of Asia to which
it geographically belongs. Secretary-General Annan, in a speech in Jerusalem on March 25, 1998, termed this
practice "an anomaly... which means [Israel] has no chance of being elected to serve on main organs." UN Press
Release SG/SM/6504/Rev. 1* (Mar. 25, 1998). Israel was co-opted to the WEOG in 2000 "on a temporary basis,"
on the understanding that it would not seek a seat on such organs, which only perpetuated this major aspect of
the anomaly. Moreover, as even this arrangement was not applied outside New York (e.g., in Geneva), Israel is
still not a member of any regional group elsewhere.
58 Panel Report, supra note 1, at 66, para. 244.

59 Id.
"6Id., para. 245.
61 Id.

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contribution to the work of the Organization."62Therefore, any necessaryreform of the Council should "increase the involvement in decision-making of those who contribute most to the
United Nations financially,militarilyand diplomatically-specifically in terms of contributions
to United Nations assessed budgets, [and] participation in mandated peace operations."63At
the same time, the panel proposes that "countriesmore representativeof the broader membership, especially of the developing world,"be brought into the decision-making process,64that
such reforms "not impair the effectiveness of the SecurityCouncil"65(apparentlya veiled warning against the dangers of excessively enlarging the Council), and that "the democratic and
accountable"nature of the Council be increased66(another bow in the direction of the African,
Asian-Pacific,and Latin American and Caribbeanstates). The panel concludes this part of its
report by stating its belief "thata decision on the enlargement of the Council, satisfying these
criteria, is now a necessity."67
With a view to reforming the existing situation, the panel then proposes alternative models
A and B for enlarging the Council. Under both these models, the Council would be enlarged
from fifteen to twenty-fourmembers.Apparently,in the panel's view, a body so expanded would
not become too unwieldy and could still meet the criterion of effectiveness, as expected from
the Security Council. One must assume that the number of affirmativevotes required for a
Council decision would also have to be increased, but the panel's report is silent on this point.
It would seem reasonable to require fifteen affirmativevotes for a Council decision, that is, 62.5
percent of its membership, a ratio halfwaybetween the original requirement of 1945 and that
prevailing since 1965.68
For the purpose of the reform proposals regarding the distributionof SecurityCouncil seats,
the panel identified four "regional areas,"as distinct from the "regional groups" customarily
referredto: "Africa,""Asiaand Pacific,""Europe,"and "Americas."
The panel explainedthat "[w]e
see these descriptions as helpful in making and implementing judgements about the composition of the Security Council, but make no recommendation about changing the composition
of the current regional groups for general electoral and other United Nations purposes."69
This approach is somewhatproblematic.It certainlymakesanyassessmentof the meritsof each
of the two alternative models more complex. Since the majorityof the UN membership can be
expected to continue to adhere to the customaryand more politically colored "regionalgroup"
concept, ratherthan embracethe panel's strictlygeographical"regionalarea"approach,it would
have been more reasonable to adopt the minority view referred to in the report: "Some members of the Panel, in particularour LatinAmericancolleagues, expressed a preference for basing
any distribution of seats on the current regional groups."70
Under modelA, six of the nine additionalseatswould become permanentseats,raisingthe total
to eleven, and the remaining three seats would be added to the nonpermanent seats, for a total
of thirteen.71The newly created permanent members would not enjoy veto rights,72placing
62

Id., para. 246.

Id. at 66-67, para. 249(a).
64 Id. at 67,
para. 249(b).
65
Id., para. 249(c).
66
Id., para. 249(d).
67 Id.,
para. 250.
68The seven affirmative votes
required before 1965 amounted to 63.6% of the membership of eleven; the nine
affirmative votes required since 1965 constitute 60% of the current membership of fifteen.
69Panel
Report, supra note 1, at 67, para. 251 (emphasis omitted).
70 Id.
(emphasis omitted).
71Id., para. 252.
72 Id. at
68, para. 256. The panel views the veto with open skepticism:
We recognize that the veto had an important function in reassuring the United Nations' most powerful
members that their interests would be safeguarded. We see no practicalway of changing the existingmembers'
vetopowers.Yet, as a whole the institution of the veto has an anachronistic character that is unsuitable for
the institution in an increasingly democratic age ....
Id. (emphasis added).
63

2005]

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641

them in an inferior position compared to that of the five original permanent members.73While
the panel does not identify the names of the candidates for the new permanent seats, the
proposed allocation of those seats among the various regions leaves little for conjecture. Of the
six new permanentseatsone would go to Europe(Germany),twoto Asia-Pacific(Japanand India),
one to the Americas (Brazil), and two to Africa (Nigeria and either Egypt or South Africa).74
Under this model, of the thirteen nonpermanent and nonrenewable seats (for two-year
terms),75four would go to Africa (53 states), three to Asia-Pacific(56 states), two to Europe (47
states), and four to the Americas (35 states).While each of these regions would be represented
under this model by six members (both permanent and nonpermanent),76this proposal would
entail a loss of one nonpermanent seat for the Europeanregion, as "Europe"would be allocated
two such seatsinstead of the three currentlyheldjointly by eastern Europeand the WEOGstates.
This loss, however,would be partly compensated for if the "other"states (that is, Australia,New
Zealand, and Canada) henceforth belonged either to the Asian-Pacificregion or to the Americas where, of course, they would have to compete for a nonpermanent seat with all other states
in their respective regions.
Model B differs from model A in the following points:
(1) it would leave the permanent membership of the Council unchanged;
(2) it would createa new categoryof eight four-yearrenewable-termseats,to be distributed
equally among the four regional areas, thus allocating two seats to each; and
(3) it would create one new nonpermanent, two-yearnonrenewable seat and reallocate
the eleven seats of this category by giving four seats to Africa, three seats to Asia-Pacific,
three seats to the Americas, and one seat to Europe.77
This model would, in fact, resurrectthe "permanentnonpermanent" (or "semi-permanent")
membership arrangement of the League of Nations era. One of the two European seats in this
category would doubtless go to Germany,and the otherwould be likely to rotate between Italy78
and such other majorcountries of Europe as Spain, Poland, and Turkey.79The twoAsian-Pacific
seats in this category would go to Japan and India. In all likelihood Nigeria would receive one
of the two African seats, with the other possibly rotating between such countries as Egypt and
South Africa.Of the Americanseats in this category,one would naturallybe given to Brazil,and
the other would probably rotate between Argentina, Mexico, and Canada (though the latter
is a less likely candidate80).
73At leasttwoof the seriouscontendersfor permanentseats-Germany andJapan-originally indicatedtheir
objectionto thisproposalby the paneland insistedon a vetorightfor themselves.On a visitto Tokyoin December
2004, GermanchancellorSchroderandJapaneseprimeministerKoizumidemandedthattheircountriesbe allo-

cated permanent Council seats with veto rights. SchroederDemandsGermanVetoPower, SPIEGEL

ONLINE,Dec. 9,
2004, at <http://service.spiegel.de/cache/internationa/0, 1518,331971,00.htinl>. However, Schroder added that
this demand for nondiscrimination vis-a-vis the original permanent members was merely a starting position. He
noted that eventually a consensus would be required and that Germany would not stand in its way. Vetorechtfiir
alle
in neuem Uno-Sicherheitsrat?
Dec. 10, 2004, at 7. In view of these statements, it is difficult
NEUEZURCHER
ZEITUNG,
to see how Schroder expected this demand to be taken at face value. Japan and Germany also established a loose
alliance with India and Brazil ("the G-4") in order to campaign jointly for their election as permanent Council
members. Germany has now apparently reconciled itself to the fact that in the event that the Security Council
is enlarged at this time, the veto will remain confined to the five original permanent members, even if, under
modelA (not surprisingly preferred by Germany over model B), six new permanent seats will be added. See text
at notes 112-13 infra.
74
Panel Report, supra note 1, at 67, para. 252.
75 Id.
76 Id.

Id. at 67-68, para. 253.

Italy's population (about 60 million) roughly equals those of France and the United Kingdom, respectively.
Its financial contribution to the regular UN budget (4.885%) does not substantially lag behind those of the
United Kingdom (6.127%) and France (6.030%).
79The population of Spain and Poland is about 40 million each. Turkey's population is over 70 million.
80
Canada's contribution to the regular UN budget is now 2.813%, compared to Argentina's 0.956% and Mexico's
1.883%. However, Mexico's population is now about 100 million and that of Argentina about 40 million, as against
Canada's roughly 30 million.
77
78

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Overall, the addition of nine Council seats under this model would entail a loss of two twoyear nonrenewable seats for Europe, compensated for by the two new seats in the four-year
renewablecategory;a gain of three seats for Africa-two four-yearrenewableseats and one twoyear nonrenewable seat; a gain of three seats for Asia-Pacific-two four-year renewable seats,
and one two-yearnonrenewable seat (the latter, however, presumably to be shared with such
likely newcomers to the "regional area" as Australia and New Zealand); and a gain of three
seats for the Americas-two four-year renewable seats and one two-yearnonrenewable seat.
In assessing the relative merits and drawbacksof each of these models, they would seem to
have more in common than meets the eye. Both are opposed to adding any new members to
the Council with veto rights. Both would distribute the nine additional seats equally among the
African, Asian-Pacific, and American regional areas, giving three additional seats to each of
them (although the allocation of these new seats withineach of these areas would differ).
Under modelA, Africaand Asia-Pacificwould gain two permanent seats and one nonpermanent two-yearseat each, while the Americaswould gain one permanent seat and two nonpermanent two-yearseats. Europe would exchange one of its three current nonpermanent seats (the
two WEOGseats and the eastern European seat) for one permanent seat, thus neither gaining
nor losing a seat on the enlarged Council.81
By comparison, under model B, Europe would exchange twoof its three current nonpermanent seats for two semipermanent four-yearrenewable seats, while Africa,Asia-Pacific,and the
Americaswould each gain two semipermanent four-yearrenewable seats and one nonpermanent two-yearnonrenewable seat.
Thus, the main arithmeticaldifference between the twomodels regarding the Council'scomposition boils down to the question whether two of the four regional areas (Africaand AsiaPacific) should get two permanent seats without a veto (while Europe and the Americaswould
each receive only one such seat), or whether each of the four regional areas should be allocated
two semipermanent four-yearrenewable seats. However, behind this arithmeticlurks the more
crucialquestionwhetherthe permanent membersof the Councilshould hold eleven of its twentyfour seats (model A) or whether the overwhelming majority of the Council-nineteen of its
members-should consist of nonpermanent members of both the four-yearrenewableand the
two-yearnonrenewable categories (model B).
Clearly, model B has the advantage of greater flexibility. One may readily assume that some
of the semipermanent members (Brazil, Germany,India, Japan, and Nigeria) will in fact be reelected every four years, and hence would virtuallybecome permanent members, as envisaged
for them under model A. Still, realisticallyspeaking, model B makes it possible for other members in Europe, Africa, and the Americas to compete, on a rotational basis, for the second seat
in that category. This option would be foreclosed under model A.
As already indicated, under model A almost half of the Council's members would be seated
on it permanently (the situation that prevailed in 1945), whereas model B, by providing for
eight longer-term renewablenonpermanent seats (in addition to the proposed eleven two-year
nonpermanent seats),wouldbring abouta strongpreponderanceof the nonpermanentmembers.
Such a process would be highly reminiscent of the developments that took place at the Council
of the League of Nations in the second decade of the League's existence. While at the United
Nations the permanent members of the SecurityCouncil constituted almost half of its members
in 1945 and one-third since 1965, the erosion of their position would now continue by reducing
them to about one-fifthof the membershipunder proposed model B. One may seriouslyquestion
whether such a development would ensure greater effectiveness of the Council or serve the
broader interests of the Organization.
81

The Russian Federation is counted by the panel (under both models) as belonging to the European regional
area, although most of its territory is located in Asia, beyond the Ural Mountains, which are generally accepted as
the border separating European Russia from its Asian counterpart. Turkey, whose territory is located mostly in
Asia, participates in both WEOG and the Asian regional group, but for electoral purposes is considered to belong
only to WEOG.

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643

One of the obvious drawbacksof both models is that they leave unresolved the status of such
states as Indonesia (whosepopulation totals over 200 million, the fourth largeston earth-making it, incidentally,the most populous Muslimnation)82and Pakistan(whosepopulation numbers
close to 150 million).Since it is virtuallycertainthatJapanand Indiawould get the twopermanent
seats of the Asian-Pacificregion (under model A) or, alternatively,its two four-yearrenewable
("permanentnonpermanent")seats (under model B), Indonesia and Pakistanwouldhave to run
for the two-yearnonrenewableseats.By comparison,under model B statesin other regional areas
with much smallerpopulations (for instance, Egypt, South Africa,Argentina, Mexico, Italy,and
Spain) would be likely candidates for four-year seats, albeit on a rotational basis.
The present writer ventures to suggest a slight change that could be applied to either of the
twomodels proposed by the panel. This suggestion is based on the factalso pointed out by Edwin
Reischauer that, while Japan is of course geographically an Asian country (and thus belongs
at the United Nations to the Asian Group of States),"[i]n both the United States andJapan the
term 'West'in connection with contemporary international affairshas come to be accepted as
including Japan."83In most casesJapan's voting pattern at the United Nations has closely followed that of the WEOGstates. Yet the panel's recommendations would give the Asian-Pacific
area (the largest of the four regional areas indicated by it and the continent inhabited by the
majorityof the world's population) effectivelyand de facto only one additional permanent seat
(under model A) or one semipermanent (four-yearrenewable) seat (under model B), because
the second seat (under either of these models) would be reserved forJapan. Therefore, it might
be worth enlarging the SecurityCouncil to a membershipof twenty-five
and awardingthe twentyfifth seat to the Asian-Pacificarea, either as a new third permanent seat (modelA) or as a third
semipermanent seat (model B). This slight addition of one member would enable Indonesia
to become either a permanent member of the Council (model A) or a semipermanent member
(model B), possiblyrotatingwith Pakistan.Secretary-GeneralAnnan seems to have left open the
possibilityof such a variantby suggesting, in his report of March21, 2005, that the UN membership consider for adoption models A or B as proposed by the panel or "anyother viable proposals in termsof sizeand balancethathave emergedon thebasisof eithermodel."84
Admittedly, while the first variant of this proposal (a third permanent seat for Asia-Pacific)
might meet Indonesia'sdemands, it would certainlybe resented by Pakistan.The second variant
(a third four-yearseat for Asia-Pacific))would fully satisfyneither of these two countries. In any
event Pakistanwould be irked if India were given either a permanent or a "permanent nonpermanent" seat on the Council, while Pakistanitself would have to settle either for a two-year
nonpermanent seat (model A) or for a rotating four-year renewable seat (model B) at best.
It is difficult to see the usefulness of the system of "indicativevoting," proposed unanimously
by the panel.85Under this proposal, the Council "could call for a public indication of positions
on a proposed action,"but" 'no' votes [ofpermanent members]would not have a veto effect, nor
would the final tally of the vote have any legal force. The second formal vote on any resolution
would take place under the current procedures of the Council."86In the panel's opinion, such
"indicativevoting" would "increase the accountabilityof the veto function."87
This proposal is yet another manifestation of the panel's antipathy toward the veto and is
openly intended to embarrass a permanent member contemplating use of its veto beforeits
actual use, in the hope of deterring it from casting a formal veto. As this was the avowed motive
82

Indonesia has served only two terms on the Security Council-in the years 1973-1974 and 1995-1996.
EDWIN0. REISCHAUER,
(1981).
Preface to THEJAPANESE
84
Report of the Secretary-General, supra note 5, annex, at 60, para. 8(c) (emphasis added). The supporters
of both modelsA and B, in their proposals submitted in May-June 2005, have spoken of a Council of twenty-five
members. Frank Ching, UN SecurityCouncilReformsHit a Brick Wall, NEW STRAITSTIMES (Malaysia), June 9,
2005, at 23, available in LEXIS,News Library, Major Newspapers File.
85 Panel
Report, supra note 1, at 68, para. 257.
86
Id. (emphasis omitted).
87
Id.
83

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behind this proposal, it should not have been disguisedunder the euphemisticcloak of"accountability."The intention of a permanent member to cast a veto is usually known in advance (and
is often announced in the informal meetings held prior to the Council's formal meetings). The
permanent member about to cast a veto also "factorsin" the public relations aspect of that vote
in advance,and the panel's attempt "to shame"it, as it were-through "indicativevoting"-into
refraining from using the veto is, to say the least, somewhat puzzling.
The panel's proposal to revisitthe composition of the SecurityCouncil in the year 2020, which
will include a review of the contribution of its permanent and nonpermanent members from
the point of view of the Council'seffectivenessin the field of collective security,88is certainlyto
be welcomed. Itwill enable the Organization to undertake a periodic examination of the Council's overall effectiveness in the light of the experience that will be accumulated over the next
fifteen years.
At the same time, one cannot be sure that the enlargement of the SecurityCouncil (in accordance with either of the two suggested models or in any other manner) will necessarilyenhance
its effectiveness. The virtuallyuninterrupted pressure for its enlargement over the past three
decades is fully understandable, having regard to the dramatic increase in the Organization's
overall membership and the changed role now played by some countries that did not exist in
1945 (Nigeria), or were not independent (India), or were enemy states of the United Nations
at the time (Germany,Japan), or now have a higher international profile than in 1945 (Egypt,
South Africa, Brazil).
It should be borne in mind, however, that the enlargement of the Council from fifteen to
twenty-four(or twenty-five)members may have an impact that goes well beyond the mere addition of nine (or ten) members-an addition of 60 to 66 percent of the currentmembership.Such
an increase maywell change the dynamicsof the Council, its capacityto work expeditiously and
to take firm decisions, as expected from it under Article28 of the Charter.While it is impossible
to devise precise arithmetical criteria to determine the point at which the enlargement of the
Council may become counterproductive,such a point certainlyexists and will have been reached
when the increasein the Council'smembershipformsa criticalmass that could make its decisionmaking process much more cumbersome.
Moreover,the enlargement of the Councilmayopen a Pandora'sbox: as indicatedabove,some
countriesmay resent not having been included among the candidatesfor more privileged status,
under either of the two proposed models. Countries like Argentina, Indonesia, Italy, Mexico,
Pakistan,and Turkey readily come to mind, to mention just a few.89Such countries may not be
satisfiedmerelywith giving rhetoricalexpression to their resentment, and could push for further
enlargement of the Council, which might endanger its effectiveness in the long run.90And in
all of this equation it should be borne in mind that the delicate overall balance between the
permanent, semipermanent, and nonpermanent members of the Council-that is, a slight preponderance of nonpermanent members, as envisaged by the founders of the United Nationsshould be preserved as far as possible. This objective seems to be better met by modelA (eleven
permanent versus thirteen nonpermanent members)than by model B (thirteen permanent and
semipermanent versus eleven nonpermanent members).91
88
Id., para. 255.
89
In the Dumbarton Oaks deliberations it was already pointed out that "[i]f one [Latin American] state were
selected for permanent membership, this would no doubt produce as many complaints from the other Latin American republics as would the failure to single out any of them." RUSSELL & MUTHER, supra note 25, at 443-44.
90At Dumbarton Oaks a thirteen-member Council was
"thought undesirably large." Id. at 443. However, at
San Francisco it was argued that "even fifteen members would not impair operating efficiency and would make
it more representative .... Any change in size, however, would have upset the voting formula arrived at with such
difficulty by the three major powers. On this point, therefore, the permanent members agreed to stand fast ...."
Id. at 649-50.
`1In this
regard the semipermanent seats constitute a hybrid phenomenon: some of those seats are likely to
be permanently occupied by the same member, while others may be rotating among members belonging to the
same regional group. Hence the difficulty of placing them en blocin either of the two columns.

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II. CONCLUSION

The UN Charter,in Article 2(1), lists as the first principle on which the Organization is based
"thesovereign equalityof all its members."The equalityof all member statesfinds its expression,
on the formal level, in the composition and voting procedures of the General Assembly-the
only main plenary organ of the United Nations-where every member is represented and has
one vote, irrespective of size or population. Thus, China (population 1.2 billion) and India
(population 1.1. billion) have the same status and voting rights as Nauru (population six thousand)and San Marino(populationtwenty-threethousand).Forthis reason, the GeneralAssembly
has frequently been referred to as the "democratic"organ of the United Nations. 92
If "democracy"and "equality"are the watchwordsof the GeneralAssembly,they clearlydo not
apply-and were not intended to apply-to the Security Council. The framers of the Charter
conceived it as the "hegemonic"organ of the Organization and expressed this idea in the privileged statusof the five permanent members (permanentseats and veto rights).The appropriate
watchwordshere would be "responsibility"and "effectiveness."
The panel was aware of these realities. In its report it emphasized that
[t]he Security Council was designed to enable the world body to act decisively to prevent
and remove threats. Itwas created to be notjust a representativebut a responsible
body, one
that had the capacity for decisive action....
... Thus, the challenge for any reform is to increase both the effectiveness
and the credibility of the Security Council ... .93
However, for practical-political reasons the panel (consisting of experienced practitioners of
the art of politics and appointed by the secretary-generalof a political organization) understandablyfelt constrained to blur this basic truth by introducing into its considerations criteria
that-in the present writer's view-are alien to the intentions of the founders of the United
Nations and to the best institutional interests of the Organization in general, and the Security
Council in particular.Thus, as indicated above, the panel was led to express its belief that reform
of the SecurityCouncil should meet-besides the principles of effectivenessand responsibility,
both financial and military-some additional criteria, namely, that the reforms "should bring
into the decision-making process countries more representative of the broader membership,
especially of the developing world; [and that] . . . [t]hey should increase the democratic and
accountable nature of the body."94The panel rightly felt that, for any reform proposals of the
SecurityCouncil to stand a chance of success, the criteriaof "responsibility"and "effectiveness"
had to be mixed with a healthy dose of "representation"and "democracy."Hence, in all likelihood, the proposal to enlarge the Council to twenty-fourmembers, with the seats neatly-and
equally-distributed among the four regional areas.
Even so, one cannot predictwith any degree of certaintythe enlargement of the SecurityCouncil within the immediate future,as desired by Secretary-GeneralAnnan.95In the months since the
92This Charter
concept of "democracy" and "equality"is understandably not devoid of problems and has often
been subjected to (mostly doctrinal) criticism. See, for example, the materials reproduced in LouIS B. SOHN, CASES
ON UNITED NATIONS LAW248-90 (2d rev. ed. 1967), also
containing various proposals for reforming the existing
system. Since the majority of the UN membership at this time consists of small states that are the main beneficiaries
of the current system (and for which the General Assembly is often the main, if not the only,
major international
forum where they can articulate their views), there is little chance for any change in the foreseeable future that would
curtail their status and rights. To be sure, the sponsoring powers at San Francisco, over the initial
opposition
of many smaller states, made sure that General Assembly decisions addressed to member states (and to the
Security
Council) would be merely in the nature of nonbinding "recommendations." UN CHARTERArt. 10.
93
Panel Report, supra note 1, at 66, paras. 244, 248 (emphasis added).
94
Id. at 67, para. 249(b), (d) (emphasis omitted).
95See Report of the Secretary-General, supranote 5, annex, at 60, para. 8(c)), where Secretary-General Annan
urged the membership to agree "to take a decision on this important issue [the enlargement of the Security
Council] before the summit in September 2005....
If... they are unable to reach consensus, this must not
become an excuse for postponing action."

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release of the panel's report, it has become increasingly obvious that the enlargement of the
Council is far from being assuredof smooth sailing. In fact, the proposal seems to have hit some
serious snags, owing to the entirelypredictable surfacingof old enmities, rivalries,resentments,
and jealousies in various parts of the world. In an editorial on March 26, 2005, TheU.N. Fights
for Its Future,the New YorkTimesstated that "[u]nfortunately,most specific plans for enlargement [of the SecurityCouncil] have problems of their own, with regional rivalriesover who can
best represent Africa, South Asia or Latin America."96
More specifically,massiveanti-Japanesedemonstrations have recentlybeen reported in various Chinese cities. While the ostensible reason for these protests was the publication in Japan
of history textbooks that, in the Chinese view, whitewashJapan's record prior to and during
WorldWarII,97it is widely believed that the real purpose of these demonstrationswas to prevent
Japan from gaining a permanent seat on the SecurityCouncil.98The New China News Agency
reported on March 31, 2005, that 22.2 million Chinese had signed a petition to deny Japan
a permanent seat on the Council. This petition effort enjoyed the tacit support of the Chinese
government and increased the chances that China would block Japan's bid for a permanent
Council seat.99According to the New YorkTimes,"China could also feel pressured to veto the
whole United Nations overhaul if the plan promotes Japan, an unusual position for a country
that has rarely used its veto power ... ."'00Likewise,the president of South Korea, on an official visit to Germany, expressed his country'sreservationsabout a permanentJapanese seat on
the Council.'?0It is also believed that China would like to deny a permanent seat to India.
Moreover, opposition to the enlargement of the SecurityCouncil-at least under modelAhas not been confined to EastAsia. On April 11, 2005, the Italian delegation in New York initiated a meeting-in conjunction with Mexico, Pakistan,Spain, South Korea, and other countries and attended by representatives of nearly 120 states-whose purpose was to scuttle model
A and to promote model B.102The South Korean press attache stated that his government
opposed model A because having more permanent seats would run "counter to broad and
accountable representation."'03UN diplomats in New York believed that Italy's purpose was
to deny Germany (whichwas not invited to that meeting) a permanent seat; similarly, Mexico
opposed a permanent Brazilian seat, and Pakistanan Indian one.104 Other countries opposing
the G-4's initiative (model A) included Argentina, Canada, Colombia, and Turkey. 05
For its part, Germanyhas continued to campaign vigorously for a permanent German seat,
sometimes giving the impression, according to some analysts, that it is interested mainly in
upgrading its own position within the Council. In that connection, Germany'sUN ambassador
Giinter Pleuger recentlyannounced-apparently without prior authorization,albeitwith subsequent "ratification"by a government spokesman in Berlin-that within a decade Germany
would raise its foreign development aid from the current0.28 percent of its gross national product to 0.7 percent, a move and its timing that have widely been interpreted as an attempt to sway
the votes of the developing countries in the General Assemblyin Germany'sfavor.106Germany
96

The U.N. FightsforIts Future,supranote 11. For some reason, the editorial overlooked the existence of similar
problems within Europe, as will be pointed out below.
97Joseph Kahn, If22 Million ChinesePrevail at U.N.,
Japan Won't,N.Y. TIMES,Apr. 1, 2005, at A4.
98
Id.; see also Johnny Erling, China sieht keinenAnlafi zur Beruhigung, DIE WELT, Apr. 19, 2005.
99
Kahn, supra note 97.

100Id.

101

SiidkoreasPrisident beurteiltUN-Reformpldneskeptisch,FRANKFURTERALLGEMEINEZEITUNG, Apr. 14, 2005.

David Pilling & Paul Sullivan, Six CountriesOpposeBids byJapanand Indiafor PermanentUN SecurityCouncil
Seats, FIN.TIMES(London), Apr. 12, 2005, at 12; Yoshikazu Shirakawa, Meeting Urges UNSC ReformbyConsensus,
DAILY YOMIURI (Tokyo), Apr. 13, 2005, at 1, available in LEXIS,News Library, Major Newspapers File.
103
Pilling & Sullivan, supra note 102.
'04ABreakthroughforSecurityCouncilReform?ECONOMIST,June 11, 2005 (U.S. ed.).
105UN
Press Release GA/10371, 'United for Consensus' Group of States Introduces Text on Security Council
Reform to General Assembly (July 26, 2005). On the G-4, see note 73 supra.
106
Manfred Schifers, Mit mehrGeld in den Sicherheitsrat;
Die ErhohungderEntwicklungshilfe
soll deutschenInteressen
102

dienen, FRANKFURTERALLGEMEINEZEITUNG, Apr. 19, 2005.

2005]

NOTES AND COMMENTS

647

also counts on Chinese supportin returnfor having consistentlyadvocated,togetherwith France,

the lifting of the European weapons embargo on China.107 U.S. secretaryof state Condoleezza
Rice, on an official visit to Tokyo, expressed unambiguous support only for a permanent Japanese seat on the Council.108 As regards Germany,it subsequentlyemerged that SecretaryRice
"thoughtthat there was a verypoor rationalefor giving another member of the EuropeanUnion
[in addition to the United Kingdom and France] a permanent seat."'09The United States is
apparently also wary of an "unwieldy"Security Council of twenty-fivemembers,"? and diplomats at the United Nations thought Russiawas more likely to go along with the United Kingdom and France than with the United States and China.
For several months the United States appeared to be watching these developments from the
sidelines. Then, in earlyJune 2005, the United States made it clear that it would oppose any
attempt by the G-4 to gain veto power.l The G-4 responded, in a paper submitted to the UN
membership, by offering to waive exercise of the veto'2 and proposing that deliberations on
this question be postponed for fifteen years.13
Several days later, the United States announced that it would support the addition of only
"two or so" permanent members, one of them being Japan (and the other, in all likelihood,
India) and "twoor three"nonpermanent members (for a total of a nineteen- or twenty-member
expanded Council), for it considered that anywider enlargement would be "possiblyinjurious"
to the Council'seffectiveness.14 At the same time, the United Statesannounced that it would not
accept any enlargement of the Council before an overall reform package of the United Nations
was in place.15 According to acting U.S. representative to the United Nations Anne Patterson,
criteriafor admission to the enlarged Councilwould have to include, in addition to the size and
population of a nation and its financial and military contribution to the Organization, its adherence to democracy and human rights and its contribution to the fight against terrorismand
the spread of weapons of mass destruction.'16
Also in earlyJune 2005, the president of the GeneralAssembly,Jean Ping of Gabon,submitted
his own report on UN reform to the UN membership,in which he skipped the issue of the Council's enlargement altogether and invited members to concentrate instead on such central issues
as "developmentassistanceand nation-building."'
17 This step seems to reflectthe widespreadfear
(foreshadowedin the report of the panel and the secretary-general'sreport of March21, 2005)
that the controversies surrounding the enlargement of the Security Council could abort UN
reform efforts altogether.
Thus, at the time of this writing (June 2005), it is virtuallyimpossible to predict the eventual
outcome of all these developments beyond stating that the chances of adoption of both models
A and B seem to be fading, as are the chances of any other attempt to enlarge the Council at
present.
'07James Bone, China Backs Germanyforthe UN Top Table, TIMES (London), Apr. 15, 2005, at 41.

108

Glenn Kessler, Rice PutsJapan at Centerof New U.S. VisionofAsia; China Challengedin Major Speech,WASH.
POST,Mar. 19, 2005, at A16.
109
Glenn Kessler, RiceApparentlyRejectsGermanBid, WASH. POST, May 18,2005, atAl 1 (quoting a confidential
memorandum of the U.S. Department of State).
"1Julian Borger, US BacksJapan toJoin SC, GUARDIAN,
June 17, 2005, at 3 (and correction, June 24, 2005).
''' Takao Hishinuma, Proposalto Expand UNSC Facing Delay, DAILYYOMIURI(Tokyo),June 8,2005, at 1, available in LEXIS,News Library, Major Newspapers File.
112Yoshikazu Shirakawa & Osamu Kawakami, 3 Hurdles Remainfor G-4, DAILY
YOMIURI,
June 11, 2005, at 3.
113 Id.
114
U.S. Dep't of State, On-the-Record Briefing on UN Reform (June 16, 2005), at <http://www.state.gov/p/us/
rm/2005/48186.htm> (R. Nicholas Burns, under secretary for political affairs).
115Id.
116USUN Press Release 119 (05), Statement by Anne W. Patterson, Acting U.S. Representative to the United
Nations, on U.S. Proposals for UN Reform, in the General Assembly (June 22, 2005), availableat <http://www.un.
int/usa/05_119.htm>.
117 Betsy Pisik, U.N. Report SkirtsBig Issues, WASH. TIMES,
June 6, 2005, at Al.

648

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The UN Charterhas frequentlybeen called a "rigid"constitution,18 which certainlyexplains

the infrequencyof Charteramendments since the Organization'sestablishmentsix decades ago.
In fact, the only amendments to date have been the enlargement of the Security Council that
went into effect in 1965, the simultaneous enlargement of the Economic and Social Council
from eighteen to twenty-sevenmembers,"19and the latter's subsequent (second) enlargement
in 1971 to fifty-fourmembers.20
This paucity of Charter amendments is not surprising, given the cumbersome process provided for adopting them, in particularthe built-in veto reserved to the permanent members of
the SecurityCouncil under Article 108 on amending the Charter,which, as indicated, requires
for adoption both a two-thirdsmajorityof the total membership and its ratificationby the same
majority, "including all the permanent members of the SecurityCouncil." 21Clearly, then, no
amendment to the Charter has a chance of being adopted if any of the permanent members
is firmly opposed to it, as seems to be the case at this time.
In the unlikely event that the requisite majorityfor the enlargement of the SecurityCouncil
(including its acceptance by the five permanent members) can now be secured, the other proposed Charteramendments (including what this writer sees as the problematic abolishment of
the Trusteeship Council) are also likely to pass. If, however,a deadlock should arisewith regard
to the enlargement of the Security Council, it may then be safely assumed that the other proposed Charter amendments will also fall by the wayside and not even be put to a vote.
POSTSCRIPT

In the course of July 2005, the UN General Assemblydeliberated on the enlargement of the
Security Council. Three draft resolutions were submitted to it to this effect:
(1) a draft resolution of the G-4 providing essentially for the adoption of model A proposed by the UN panel, the only departure being the addition of four nonpermanent
members (instead of three, as proposed by the panel), for a total Council membership of
twenty-five;
(2) a draft resolution of the AfricanUnion, proposing an expanded Council of twenty-six
members, adding six permanent members (with a right of veto) and five nonpermanent
members; and
118
See Jacob Robinson, Metamorphosisof the UnitedNations Charter,in 94 RECUEIL DES COURS493, 547(1958
II); Louis B. Sohn, United Nations Decision-Making:Confrontationor Consensus?15 HARV.INT'LL.J. 438 (1974).
19GA Res. 1991A (XVIII) (Dec. 17, 1963)
(Security Council enlargement); GA Res. 1991B (XVIII) (Dec. 17,
1963) (first enlargement of Economic and Social Council).
120
GA Res. 2847 (XXVI) (Dec. 20, 1971).
121
Should the Charter amendments proposed by the panel be adopted by the General Assembly and receive
the requisite ratifications, member states opposing those amendments would also be bound by them. However,
the question may still arise whether such opposition could entitle them to withdrawfrom the United Nations, since
the UN Charter-unlike the League Covenant-is silent on the question of withdrawal. Instead, the San Francisco
Conference adopted an interpretive declaration under which "[i]f... a Member because of exceptional circumstances feels constrained to withdraw, ... it is not the purpose of the Organization to compel that member to
continue its cooperation in the Organization." Doc. 1210, P/20, 1 U.N.C.I.O. Docs. 612, 616 (1945). A discussion
of the juridical effect and value of this declaration would go beyond the scope of this Note. For the different views
on this question, see GOODRICH,
HAMBRO, & SIMONS,
supra note 18, at 640-41; KELSEN,
supra note 33, at 127-29;
OF MEMBERSHIP
OF INTERNATIONAL
NAGENDRA
ORGANISATIONS
93-94 (1958). Suffice it
SINGH,TERMINATION
to say here that among the "exceptional circumstances"justifyingwithdrawalby a member, the declaration specified,
by way of illustration, a situation in which a member's "rights and obligations" were changed by a Charter amendment with which it did not concur and was thus unable to accept. GOODRICH, HAMBRO, & SIMONS, supra, at 75.
On the right of withdrawal from the United Nations in general, see N. Feinberg, Unilateral Withdrawalfrom
an InternationalOrganization,1963 BRIT.Y.B. INT'LL. 189, 197-202, 211-19; Fernand Dehousse, Le Droitde retrait
aux Nations Unies, 1 REVUEBELGEDEDROITINTERNATIONAL
30 (1965) & 2 id. at 8 (1966).
In practical terms, should the proposed Charter amendments clear the constitutional hurdles laid down in Article
108, it is highly unlikely that any possible opponent of these amendments would wish to withdraw from the
United Nations on this score. Indonesia's avowed withdrawal from the United Nations in 1965 was subsequently
characterized by both the United Nations and Indonesia as a mere "cessation of co-operation" with the Organization, which enabled Indonesia to "resume full co-operation with the United Nations" in 1966, without having
to be formally readmitted. Thus, the United Nations has been able to maintain that no member state has ever withdrawn from it since its establishment in 1945. See Yehuda Z. Blum, Indonesia'sReturn to the United Nations, 16
INT'L& COMP.L.Q. 522 (1967).

2005]

NOTES AND COMMENTS

649

(3) a draft resolution submitted by a group of states ("United for Consensus")led by Italy
and other regional rivalsof the G-4, which provides for an expanded Council of twenty-five
members through the addition of ten nonpermanent seats, some of which would be fouryear seats whose incumbents would be eligible for immediate reelection.
Since none of these draftshad a realistic chance of garnering the requisite 128 votes, the G-4
and the African Union consulted (without apparent success by the end of July) with a view to
"harmonizing"their respective drafts.

REDUCING THE PROLIFERATIONOF ORBITAL DEBRIS:

ALTERNATIVES TO A LEGALLY BINDING INSTRUMENT
By StevenA. Mirmina
More than one hundred thousand pieces of spacejunk are floating in orbit around the Earth
and endangering criticaloperations upon which the worlddepends every day-such operations
asweatherforecasting,telecommunications,televisionbroadcasting,global navigation,and aviation. As more governmentsand privateentities become activein space, and if no steps are taken
to reversethe growthof the orbitaldebris population, the likelihood of collisions betweenpieces
of debris or between debris and active space objects will increase.
While previous authors have suggested that a new treatycould compel states to reduce their
contributions to the proliferation of orbital debris, this study offers an alternativeview:that the
most effective way to reduce orbital debris is through compliance with self-imposed guidelines
and apolitical, technically based safety standards.'
This Note will describe the scope of the threatposed by orbitaldebris and explain why immediate action to mitigate that threat is advised. Second, it will examine three different ways to
redress the situation, including (1) a voluntary adherence regime modeled loosely on the Missile Technology ControlRegime (MTCR);(2) a United Nations-centeredapproach;and (3) a voluntary code of conduct. Last, after examining the pros and cons of each of these three options,
the Note explains how certainmeasuresthat startout as voluntarycan later be transformedinto
legally binding obligations.
I. WHAT IS ORBITAL DEBRIS?

Two types of debris are found in space. Naturallyoccurring debris, or meteoroids, are part
of the space environment and naturallypass through the Earth'sorbit. The precise amount of
this type of debris is indeterminate, but observationaldata have suggested a total, at any given
instant in time, of about two hundred kilograms of meteoroid mass within two thousand kilometers of the Earth'ssurface(the region encompassing the most frequentlyused orbits).2These
naturallyoccurring meteoroids pass through Earth'sorbit at a relative velocity of about twenty
kilometersper second.3The other type of debris, the type that is the subjectof this Note, is man*Senior Attorney, International LawPracticeTeam, Office of the General Counsel, National Aeronauticsand Space
Administration. The author has served on the U.S. delegation to the Scientific and Technical and Legal Subcommittees of the United Nations Committee on the Peaceful Uses of Outer Space. This article was written in his personal
capacity, and the views expressed do not necessarily represent the views of NASA or the United States government.
1For a discussion of the effectiveness of
nonbinding agreements, see generally in this issue Kal Raustiala, Form
and Substancein InternationalAgreements,99 AJIL 581 (2005).

2 NATIONALSCIENCEAND TECHNOLOGY
COUNCIL, COMMITTEEON TRANSPORTATIONRESEARCHAND DEVELOPMENT, INTERAGENCYREPORT ON ORBITAL DEBRIS 3 (1995) [hereinafter INTERAGENCYREPORT].
3

Id. Technically, meteoroids are not in the Earth's orbit. The only known natural object in the Earth's orbit
is the Moon.