Global Interest Litigation (2020): A Petition to the International Court of Justice on the Veto and the 'Basic Structure' of the UN Charter
In April 2020, Shashank Shri Tripathi, Advocate, prepared a 'Global Interest Litigation' addressed to the International Court of Justice. It argued that the UN Charter has a basic structure – its Preamble, Purposes and Principles – and that the Security Council veto and certain other provisions are inconsistent with it. This note explains what the petition asked for, the legal limits on bringing such a petition, and why the questions it raised are still debated.
On 29 April 2020, Shashank Shri Tripathi, Advocate, of Shri Law Chambers, prepared a petition addressed to the International Court of Justice at The Hague. He called it a "Global Interest Litigation" (G.I.L.) – an attempt to carry the idea of Indian public interest litigation to the international level. The petition, with its annexures, ran to 212 pages. This note summarises what it argued and asked for, explains the legal limits on bringing such a petition, and records what happened to it.
The idea behind the petition
Indian constitutional law holds that Parliament may amend the Constitution but may not destroy its basic structure. The doctrine was laid down by the Supreme Court in Kesavananda Bharati v. State of Kerala (1973). The petition applied the same reasoning to the Charter of the United Nations.
It argued that the Charter's basic structure lies in its Preamble, Purposes and Principles – peace, equality of nations, justice, human dignity and good faith. In support, it relied on the report of the Rapporteur of Committee I/1 at the San Francisco Conference of 1945, which observed that there was no ground for supposing the Preamble had less legal validity than the chapters on Purposes and Principles. On that footing, the petition contended that provisions of the Charter which contradict those foundations should be declared inconsistent with it and amended.
The provisions it challenged
The central target was the veto. Under Article 27(3) of the Charter, decisions of the Security Council on all non-procedural matters require the concurring votes of the five permanent members. The petition argued that this gives five States a power over every other member that is incompatible with the Charter's own principle of sovereign equality, and that a permanent member can use it even in a matter in which it is itself interested.
The petition listed Articles 23(1), 27(3), 53(1), 53(2), 77(b), 86(b), 96(2), 107 and 109(2) as inconsistent with the Charter's basic structure. These cover, among other things, the fixed list of permanent members, the veto, the provisions on "enemy states" of the Second World War, and the procedure for reviewing the Charter.
It also pointed to the limited reach of the International Court of Justice itself: under its Statute, only States may be parties to contentious cases, so individuals and the peoples in whose name the Charter was made have no direct access to it.
The changes it proposed
The petition annexed a marked-up text of the Charter and of the Statute of the International Court of Justice showing the amendments proposed. Among them:
• an abstention by a permanent member should not operate as a veto, and decisions should be taken on the basis of members "present and voting";
• the majority required in the Security Council should be eight of fifteen members instead of nine;
• the words "men and women" in the Preamble and Article 8 should be replaced with "humans", or "transgender" should be added;
• the word "international" should be replaced with "universal" or "global" where appropriate;
• the Statute of the Court should be amended to widen its jurisdiction and functions.
The COVID-19 prayer
The petition was written in the first months of the COVID-19 pandemic. It argued that the United Nations had no dedicated body with powers to respond to such a pandemic, and it referred to reports of medicines and protective equipment being diverted from other countries while in transit. As interim relief, it asked the Court to constitute, or direct the Security Council to constitute, an ad hoc committee on the pandemic.
Could the Court hear it?
The petition was candid that it faced procedural hurdles, and the law on them is clear. The International Court of Justice has two kinds of jurisdiction. In contentious cases, only States may apply to and appear before it; private individuals and international organisations cannot institute proceedings. Advisory opinions may be given only on a request from the General Assembly or the Security Council, or from other UN organs and specialised agencies that the General Assembly has authorised, on legal questions within the scope of their activities.
An individual citizen therefore has no standing to bring a case or to request an opinion. The petition sought to address this. It asked the Court to exercise inherent jurisdiction, to waive the procedural requirements of its Rules, or to act on its own motion. It also forwarded copies to the member States and organs of the United Nations, inviting any of them to take the matter up, and offered to withdraw the petition if a State or organ did so.
There is a further constraint. Under Article 108 of the Charter, an amendment comes into force only when it is adopted by two-thirds of the General Assembly and ratified by two-thirds of the member States, including all five permanent members of the Security Council. The veto therefore extends to its own abolition.
What happened next
No response was received from the Court or from the United Nations, and the petition did not result in any proceeding. Its value lies in the questions it put on record and in the detailed amendments it proposed.
Why the questions still matter
The debate on the veto has continued. On 26 April 2022, the General Assembly adopted resolution 76/262, under which the President of the General Assembly must convene a formal meeting of the Assembly within ten working days whenever a veto is cast in the Security Council, to debate the situation on which it was cast. The resolution does not remove the veto, but it requires its use to be explained before the full membership – a step towards the accountability the petition argued for.
Summary
The 2020 Global Interest Litigation argued that the UN Charter has a basic structure, as the Indian Constitution does, and that the Security Council veto and related provisions are inconsistent with it. It asked the International Court of Justice to say so and to advise the General Assembly and the Security Council on amendments, and it sought a pandemic committee as interim relief. Under the Court's Statute, an individual cannot bring such a case, and Charter amendments require the agreement of all five permanent members. The petition received no response, but the questions it raised about equality and accountability in the Security Council remain part of the international debate.
Key Authorities Cited
- Kesavananda Bharati v. State of Kerala — Supreme Court of India, 1973-04-24, (1973) 4 SCC 225
Statutory Provisions
- Charter of the United Nations, 1945 — Article 27(3) (voting in the Security Council)
- Charter of the United Nations, 1945 — Article 96 (advisory opinions)
- Charter of the United Nations, 1945 — Article 108 (amendments)
- Statute of the International Court of Justice — Article 34(1) (only States may be parties in cases before the Court)
- Statute of the International Court of Justice — Article 65(1) (advisory opinions on request of authorised bodies)
Frequently Asked Questions
Can an individual file a case in the International Court of Justice?
No. Only States may be parties to contentious cases before the International Court of Justice, and advisory opinions can be requested only by the General Assembly, the Security Council or other UN organs and specialised agencies authorised by the General Assembly.
What was the Global Interest Litigation of 2020?
A petition prepared by Shashank Shri Tripathi, Advocate, and addressed to the International Court of Justice on 29 April 2020. It argued that the Security Council veto and certain other provisions of the UN Charter are inconsistent with the Charter's basic structure, proposed detailed amendments, and sought a committee on the COVID-19 pandemic as interim relief.
Can the UN Charter be amended to remove the veto?
Only through Article 108 or 109 of the Charter, which require adoption by two-thirds of the General Assembly and ratification by two-thirds of member States, including all five permanent members of the Security Council.
Did the International Court of Justice decide the petition?
No. No response was received from the Court or the United Nations, and the petition did not lead to any proceeding.
Sources & References
- International Court of Justice – Contentious jurisdiction (who may be a party)
- Charter of the United Nations – Chapter XIV, Articles 92–96
- Charter of the United Nations – Chapter XVIII: Amendments (Articles 108–109)
- General Assembly resolution 76/262 (26 April 2022) – standing mandate for a debate when a veto is cast
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