Reconstructing Collective Security Without Charter Amendment:

Functional Reconstruction Beyond Security Council Paralysis

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Abstract

Persistent veto use has rendered the United Nations Security Council unable to act in a series of situations involving serious threats to international peace and security. Debate has tended to polarise between calls for formal Charter amendment and resignation to institutional paralysis. This article advances a narrower claim. It argues that recent institutional practice may be understood as reflecting a limited reconfiguration of authority within the existing Charter framework under conditions of sustained veto obstruction.

Drawing on doctrines of good faith and abuse of rights, comparative constitutional practice, and recent scholarship on institutional change through practice, the article develops the concept of “functional reconstruction” as an interpretive account of how collective security functions may adapt without formal amendment or systemic rupture. Developments including the General Assembly’s veto accountability mechanism, emergency special sessions under the Uniting for Peace procedure, and Assembly-anchored coordination of sanctions regimes are examined as instances of this emerging pattern.

The argument is confined to non-forcible measures and does not claim that the General Assembly may substitute for the Security Council in authorising the use of force. Rather, it suggests that under conditions of persistent Council paralysis, the Charter’s allocation of “primary” responsibility need not be read as exclusive in all circumstances. Recognising and clarifying these adaptive practices may help to preserve institutional continuity while mitigating the systemic effects of sustained obstruction.

I. Introduction: Collective Security and the Politics of Marginalisation

The contemporary difficulties of the United Nations collective security system are frequently attributed either to geopolitical rivalry among major powers or to the structural entrenchment of the veto within the Security Council.[1] Both explanations capture important features of the current landscape. Neither, however, fully addresses a prior institutional question: how does the Charter framework operate when the organ entrusted with "primary responsibility" for the maintenance of international peace and security is persistently unable to act owing to veto obstruction?

Concern regarding institutional paralysis is not confined to academic commentary. In his final address to the General Assembly in January 2026, Secretary-General António Guterres offered a stark institutional diagnosis: 'The context is chaos. We are a world brimming with conflict, impunity, inequality and unpredictability.' He warned that the erosion of international law was unfolding not in the shadows but publicly, in real time. Most striking was his identification of impunity as causal: 'Impunity is the mother of chaos – and it has spawned some of the most atrocious conflicts of our times.'[2] This institutional testimony, delivered at the end of a decade-long tenure, confirms that the crisis is not peripheral but systemic, and that silence in the face of violation breeds further violation. Cumulative non-action in the face of grave breaches of peace and security carries systemic consequences. The issue is therefore not episodic disagreement, but the structural effects of persistent paralysis.

Persistent dysfunction does not arise solely from textual design. It is also shaped by patterns of political marginalisation. The authority of the United Nations has, at various moments, been weakened not only by disagreement among states but by the deliberate sidelining of institutional processes by those with the greatest capacity to sustain them. In a 2006 address at the Royal Albert Hall in London, former United States President Bill Clinton reflected that one of the strategic errors of his presidency had been to accept and perpetuate a posture that treated the United Nations as dysfunctional or dispensable, thereby contributing to its marginalisation.[3] Similar assessments appear in the memoirs of successive Secretaries-General: Boutros Boutros-Ghali described Washington's treatment of the organisation as an instrument of convenience;[4] Kofi Annan attributed the UN's gravest failures – Rwanda, Bosnia, Iraq – not to institutional incapacity but to the unwillingness of powerful states to commit the necessary political will.[5] Whatever the particularities of these assessments, they capture a broader dynamic: institutional weakness and political disengagement can become mutually reinforcing. This pattern has more recently been elevated to official doctrine. The United States' 2025 National Security Strategy explicitly characterises international institutions as 'sovereignty-sapping', framing engagement with the multilateral order in exclusively transactional terms.[6] Clinton's acknowledged error has become governing philosophy. The implications for any framework of collective security are direct: a framework that depends on the consistent participation of every permanent member is a framework designed to fail.

Formal Charter amendment, particularly in relation to the veto, is widely acknowledged to be politically foreclosed. At the same time, proposals that implicitly accept Security Council paralysis as dispositive of what collective security may achieve risk conflating institutional dysfunction with constitutional finality. The relevant question is not whether the Charter can be rewritten, nor whether the United Nations can be replaced. It is whether the existing framework contains resources for institutional adaptation when the Council is structurally blocked.

This article advances a narrow and primarily interpretive claim. It argues that recent institutional practice can be understood as reflecting a limited reconfiguration of authority within the Charter order under conditions of sustained veto paralysis. This reconfiguration does not invalidate the veto, transfer Chapter VII powers to the General Assembly, or dissolve the Security Council's primary role. Rather, it concerns the erosion of exclusivity: where persistent veto use renders the Council unable to discharge its responsibility, other Charter-compatible mechanisms may assume a more central role in articulating collective judgment and coordinating non-forcible responses.

Veto obstruction takes two distinct structural forms that the framework must accommodate. In the first, a permanent member employs the veto to shield its own conduct – as aggressor, occupying power, or direct party to the conflict at issue. In the second, a permanent member vetoes action against a third state whose conduct it has strategic or political reasons to protect. The legal and political dynamics differ: in the first case, the vetoing state is itself the source of the violation; in the second, it is an enabler. But the constitutional consequence is the same in both cases. Neither configuration constitutes an authoritative institutional determination that no response is warranted; in neither case does Council paralysis exhaust the Charter's collective security function. The framework developed here applies to both, and the emerging practice it documents – including the Assembly's response to Russian aggression in Ukraine and its engagement with the situation in the Occupied Palestinian Territory – reflects both configurations.[7]

The analysis is confined to measures short of force. Nothing in what follows claims that the General Assembly may authorise military action in substitution for the Security Council, nor that the Charter's distinctive regulation of the use of force has been displaced. The focus instead is on coordinated sanctions regimes, diplomatic measures, institutional accountability mechanisms, and related forms of collective response that do not depend on Chapter VII authorisation.

The argument is primarily descriptive and doctrinal. It seeks to situate observable developments within a coherent constitutional framework. At the same time, interpretive accounts of institutional adaptation inevitably carry evaluative implications. If the pattern identified here is accurate, greater doctrinal clarity may help to stabilise practice and reduce the risk of fragmentation or unilateral drift. The prescriptive dimension of the analysis is therefore limited: it does not propose institutional redesign, but suggests that emerging practices, if recognised as Charter-compatible, may be consolidated in ways that preserve institutional continuity.

The argument proceeds in light of recent scholarship emphasising the role of institutional practice in the evolution of international authority, which provides a theoretical framework for understanding the developments examined here as instances of adaptive constitutional practice rather than isolated political gestures.

The article develops this argument as follows. Parts II and III examine the Charter's allocation of responsibility and the structural barriers to formal amendment. Part IV outlines a doctrinal and practice-based framework for understanding authority migration under conditions of institutional dysfunction. Parts V through VII analyse recent institutional developments – including the veto accountability initiative, emergency special sessions, and Assembly-anchored enforcement coordination – as illustrations of this emerging pattern. Parts VIII and IX address operationalisation, veto use and abuse, and the distinction between validity and exclusivity. Part X considers objections grounded in fragmentation, selectivity, and realist critiques of institutional constraint. The Conclusion reflects on the implications of adaptive practice for preserving institutional continuity without constitutional rupture.

The United Nations Charter was designed to centralise responsibility for peace and security while avoiding the escalation risks associated with great-power confrontation. The persistence of veto paralysis tests that design. The question addressed here is not whether the Charter can be transformed through amendment, but whether its existing structure permits forms of institutional adaptation capable of sustaining collective security functions under conditions of sustained blockage where the Council is rendered persistently non-functional by veto obstruction.

II. The Charter Design and Its Limits

The United Nations Charter was drafted on the assumption that a single, universal institution could provide a stable framework for the maintenance of international peace and security. That assumption remains sound. What has come into question is not the necessity of a central global institution, but the adequacy of the specific allocation of authority embedded in the Charter’s post-1945 design.

The Security Council was constructed as the executive core of the system.[8] Its composition and voting rules reflected a political compromise forged in the aftermath of the Second World War, premised on the belief that durable collective security required the consent and participation of the major military powers.[9] The veto was the price of that consent. Its logic was functional rather than legal: it was intended to prevent enforcement action likely to provoke great-power war, not to guarantee consistent accountability for violations of international law.[10]

That design presupposed conditions that no longer obtain. Contemporary conflict is characterised by proxy warfare, blurred lines of responsibility, and routine involvement – direct or indirect – of permanent members in conflicts they may later be called upon to judge. The assumption that veto-wielding states would ordinarily be detached arbiters has eroded. At the same time, substantive norms governing the use of force and the protection of civilians are more developed and more widely internalised than in 1945.[11] Civilian harm is visible in real time, increasing demands for accountability and collective response. When the principal institution charged with collective security cannot even register authoritative judgment in the most serious cases, the legal order appears less like a system of law than a system of discretion.

The Charter does not treat the Security Council as the sole embodiment of collective security authority. Article 24 confers primary responsibility, not exclusivity.[12] The General Assembly retains broad competences in relation to discussion, recommendation, and coordination, including with respect to threats to peace and international cooperation.[13] This dual structure reflects an implicit recognition that concentration of authority entails risks of deadlock as well as efficiency. The difficulty is that the Charter provides no explicit mechanism for reallocating authority when the Council is persistently unable to act. That silence marks the design limit within which any reconstruction must operate.

III. Why Formal Charter Amendment Is Not a Viable Path

Proposals to reform the veto invariably confront the Charter’s amendment architecture. Articles 108 and 109 permit amendment and review only with the ratification of all permanent members of the Security Council.[14] Any amendment that would meaningfully constrain the veto therefore requires the consent of the states most invested in its preservation. This is not merely a procedural inconvenience; it is a structural lock-in.

Recognising this entrenchment is a necessary analytic step. Reform discourse that focuses on textual amendment misdiagnoses the problem and risks becoming performative – rehearsing proposals that cannot be implemented while institutional dysfunction deepens. Voluntary restraint initiatives face the same structural obstacle: the France-Mexico proposal that permanent members pledge not to use the veto in cases of mass atrocity has attracted support from only one permanent member, the United Kingdom.[15]

Comparative constitutional experience confirms that deeply entrenched power allocations rarely change through formal amendment absent extraordinary political alignment or existential shock.[16] Domestic constitutional systems frequently adapt through interpretation, practice, and shifts in institutional balance long before formal amendment occurs. The UN Charter, as a quasi-constitutional instrument of the international community, is no different.[17] Indeed, it is more entrenched than most domestic constitutions, because the beneficiaries of the veto possess both procedural blocking power and substantial geopolitical leverage.

If formal amendment is foreclosed, the relevant question is not whether reform is possible, but how authority may be exercised lawfully and legitimately within the Charter’s framework when the Security Council is unable to act. As Guterres observed, ‘1945 problem-solving will not solve 2026 problems.’[18] The structures must adapt or lose legitimacy.

IV. Functional Reconstruction: Doctrine and Practice

Functional reconstruction provides a framework for addressing institutional paralysis without constitutional rupture. It describes a process by which authority migrates within an existing legal order in response to persistent dysfunction, while the formal constitutional text remains intact. It is conservative in form but adaptive in effect. Crucially, it can be understood not merely as a doctrinal proposal but as a description of processes already observable in practice – a convergence that recent interdisciplinary scholarship helps to illuminate.

Two preliminary clarifications are necessary. First, the distinction between legality and legitimacy must remain clear throughout the analysis. Functional reconstruction does not claim that abusive veto use becomes legally void, nor that Assembly endorsement automatically legalises coordinated enforcement measures. Legal validity and authoritative weight are distinct dimensions of institutional life. The veto remains legally valid; what shifts is the presumption that its exercise exhausts collective-security competence.

Secondly, this article does not engage directly with the Responsibility to Protect framework. R2P addresses the substantive question of when international response to mass atrocities is justified; the present analysis addresses the prior institutional question of how collective security can function when the Security Council is blocked. The moral premise underlying R2P is sound; its institutional dependence on a Security Council vulnerable to veto paralysis is precisely the structural vulnerability that functional reconstruction seeks to address.[19]

A. The Doctrinal Framework

Functional reconstruction is familiar in domestic constitutional systems. Formal amendment is often rare and difficult; constitutional change frequently occurs through interpretive practice, institutional evolution, and shifts in power relations among branches.[20] Courts develop doctrines that preserve systemic purpose where textual rules prove inadequate. Legislatures adapt procedures to new realities. The constitutional order remains formally continuous even as its functional balance changes.

The Parliament Acts 1911 and 1949 provide a particularly instructive illustration. When the House of Lords persistently blocked legislation supported by the elected House of Commons, the constitutional response was not to abolish the upper chamber but to circumscribe its veto. Functional authority migrated to the representative body; the Lords retained their role where they could act constructively but lost their capacity to paralyse the system.[21] The development of EU constitutional law illustrates the same dynamic in a quasi-international setting: the doctrines of supremacy and direct effect were developed by the European Court of Justice without treaty amendment, consolidated through subsequent state practice and acquiescence.[22]

International institutions exhibit analogous dynamics, though in more complex form. They depend heavily on practice, consent, and legitimacy, and their competences are often framed in general terms that require interpretation.[23] Where an organ persistently fails to perform its assigned role, authority does not vanish; it is exercised elsewhere, sometimes by organs originally conceived as supplementary. The principle may be stated as follows: where a constitutional mechanism designed to serve a systemic purpose persistently fails to do so, authority migrates to alternative mechanisms capable of fulfilling that purpose, without formal amendment to the constitutional text. The migration is constrained by the structure and purposes of the constitutional order, but it is lawful and familiar.

The analogy to domestic constitutional practice illuminates but does not perfectly replicate the international setting. It might be objected that functional reconstruction relies on background conditions – settled authority, enforcement capacity, and an accepted locus of constitutional finality – that are absent at the international level, and that those conditions are precisely what is in question in any international constitutional argument. The objection warrants direct engagement rather than deflection.

It overstates the contrast, however. Each of those background conditions has an international analogue, albeit nascent and less centralised. Settled authority exists in the Charter’s recognised quasi-constitutional status and the ICJ’s role in articulating its purposes – not with compulsory binding effect, but with a normative weight that shapes state practice and doctrinal argument. Enforcement capacity exists in the form of coordinated sanctions coalitions, arms embargoes, asset-freezing regimes, and reputational consequences for non-compliance – not centralised, but operationally substantial, as the response to Russia’s invasion of Ukraine has demonstrated. And a degree of constitutional finality exists in General Assembly determinations and ICJ advisory opinions – not binding in the manner of a domestic judgment, but authoritatively weighty as the collective judgment of the only universally representative organ and the principal judicial organ of the United Nations respectively. These are not the robust, institutionalised conditions of mature domestic orders. But they are not absent; they are early-stage. Domestic background conditions were themselves once nascent: the Parliament Acts did not emerge into a fully settled constitutional order – they helped settle it.

The absence of fully developed background conditions does not make authority migration impossible at the international level; it makes it more dependent on the quality of doctrinal reasoning, the breadth of participatory practice, and the demonstrated restraint of those who invoke it. Those are precisely the constraints that functional reconstruction is designed to satisfy – and they distinguish it from power projection dressed in legal language. International institutional law has always developed through the gradual consolidation of patterns that shift the normative weight accorded to different organs, without formal constitutional adjudication. The doctrine of implied powers, the expansion of peacekeeping beyond anything contemplated in 1945, the evolution of human rights monitoring mechanisms – none rested on constitutional amendment or judicial determination.[24] Each emerged through practice that states came to accept as consistent with the Charter’s purposes. Functional reconstruction operates in the same register.

B. The Practice Turn and Institutional Change

The consolidation of constitutional practice does not occur through mere repetition. For a practice to acquire structural authority within an institutional order, four conditions must be satisfied: repetition across multiple instances; justificatory coherence framed in Charter purposes; broad participation; and a shift in contestation from legality to prudence. Functional reconstruction identifies the structural conditions under which such endurance becomes possible.

Recent interdisciplinary scholarship provides a theoretical vocabulary for understanding this process. The ‘practice turn’ in international relations, developed most fully in the work of Emanuel Adler and Vincent Pouliot, reorients analysis from formal rules and static structures to the socially meaningful patterns of action through which institutions are constituted, maintained, and transformed.[25] On this account, practices are not merely behaviour conforming to rules; they are ‘competent performances’ that embody shared understandings and, through repetition and recognition, constitute the institutional structures within which they operate.[26] The key insight is that practices do not simply occur within structures; they constitute them. Institutional structures are not given once and for all by founding texts; they are reproduced, and potentially transformed, through the accumulated practices of the actors who inhabit them.

This reorientation carries important implications for understanding institutional change. If institutions are constituted through practice, they can also be transformed through practice – without formal amendment, through the gradual accumulation of new patterns that reshape institutional relationships. The shift is from asking ‘what do the rules permit?’ to asking ‘what are actors actually doing, and how is that doing reshaping the normative landscape?’ This does not mean that rules are irrelevant; they constitute an important part of the background knowledge against which practices operate. But the relationship between rules and practice is dynamic rather than static. Rules constrain practice; practice interprets, elaborates, and sometimes transforms rules.

The bridge between this insight and legal analysis is supplied by Jutta Brunnée and Stephen Toope’s ‘interactional’ account of international law.[27] Drawing on Lon Fuller’s jurisprudence, Brunnée and Toope argue that legal norms are built, maintained, and sometimes destroyed through a continuing ‘practice of legality’ – shared understandings, sustained through interaction, that generate a distinctive sense of legal obligation. On this view, law is not simply a set of formal rules imposed from above; it is a practice that depends on continued fidelity by those to whom it is addressed. When that practice erodes – when actors cease to treat rules as obligatory in consistent ways – legal authority weakens. Conversely, when new patterns of practice emerge that are consistent with underlying purposes and attract increasing adherence, they may consolidate into recognised legal authority. Brunnée and Toope’s application of this framework to the prohibition on the use of force and the collective security regime is directly pertinent: they show how the practice of legality around collective security has been strained by Security Council dysfunction, while new practices – some of which this article documents – are beginning to emerge in response.[28]

For functional reconstruction, this framework is directly relevant. It suggests that the migration of authority from a paralysed Security Council to alternative mechanisms is not merely a doctrinal argument awaiting validation by some authoritative institution. It is a process – observable in practice, consolidating through repetition, and acquiring normative weight through the continued adherence of states and institutions. Doctrine provides the constitutional grammar; practice provides the material reality. Each constrains the other: doctrine without practice is abstract; practice without doctrinal grounding risks appearing as mere power politics. The convergence of both – doctrinal soundness and emerging institutional practice – is what gives functional reconstruction its constitutional character.

C. Continuity, Singularity, and the Conservative Logic of Reconstruction

Functional reconstruction must be distinguished from constitutional rupture. It does not entail abandonment of the Charter, dissolution of the UN, or creation of a competing global institution. Nor does it imply that institutional failure automatically generates new legal authority. Rather, it posits that existing legal frameworks may contain underutilised capacities that can be activated lawfully when primary mechanisms fail, and that consistent practice can consolidate those capacities into recognised constitutional patterns.[29]

This presupposes institutional singularity at the global level. The legitimacy of collective security depends not on proliferating rival claimants to authority, but on preserving a single representative framework within which authority can shift without fracturing the system itself.[30] Functional reconstruction is therefore conservative in character. It accepts the permanence of the veto. It does not deny the Security Council’s central role where it can function. It rejects only the proposition that veto-induced paralysis must define the limits of what collective security may achieve.

V. Emerging Practices of Reconstruction

The doctrinal framework developed above is not merely hypothetical. Since 2022, a cluster of institutional developments has begun to reshape the relationship between the Security Council and the General Assembly in ways that correspond closely to the dynamics of functional reconstruction. These emerging practices are individually significant; taken together, they represent the early consolidation of a new constitutional pattern.

A. The Liechtenstein Veto Accountability Initiative

The most structurally significant development is General Assembly Resolution 76/262, adopted by consensus on 26 April 2022.[31] Conceived by Liechtenstein’s Permanent Representative Christian Wenaweser and co-sponsored by eighty-three states – including three permanent members (France, the United Kingdom, and the United States) – the resolution requires the General Assembly to convene a formal debate within ten working days of any veto cast in the Security Council. The vetoing state is invited, but not required, to explain its vote.

The resolution’s significance lies not in its legal status – it is procedurally modest – but in the practice it has generated. Since its adoption, every veto has triggered an Assembly debate. More than seventy states have participated in each session. Most remarkably, every permanent member that has cast a veto – including Russia and China – has appeared before the Assembly to explain its use of the veto. This is historically unprecedented. For decades, the veto operated as a power exercised without justification; Resolution 76/262 has created a regularised practice of accountability that reshapes the institutional relationship between the two organs.[32]

Wenaweser himself articulated the initiative’s logic in terms that correspond precisely to functional reconstruction: ‘If the Council is not doing its work, then we must do the work elsewhere. And that place is the General Assembly.’[33] The initiative does not purport to invalidate the veto. It creates consequences for its exercise – precisely the ‘consequences without invalidity’ that the present article develops doctrinally. Each debate reinforces the practice; each explanation reinforces the expectation of justification; and the cumulative effect is a gradual shift in the normative weight of veto-induced paralysis.

Read through the lens of practice theory, Resolution 76/262 is doing something more than creating a procedural mechanism. It is generating a new ‘background knowledge’ – a shared understanding, increasingly taken for granted among UN member states, that the exercise of the veto is not the final word on a situation but the beginning of a broader institutional conversation. Before 2022, the veto operated as a black box: exercised without explanation, accepted (or protested) without institutional response. The Liechtenstein initiative has made veto use publicly accountable in a way that reshapes the normative meaning of Council paralysis. The practice is not yet fully consolidated; but its regularity, broad participation, and procedural entrenchment suggest that it is acquiring the characteristics of an institutional norm rather than an ad hoc political gesture.

B. The Ukraine Emergency Special Sessions

The Eleventh Emergency Special Session of the General Assembly, convened in February 2022 following Russia’s invasion of Ukraine, represents the most sustained Assembly engagement with a peace-and-security crisis in decades.[34] Invoked under the Uniting for Peace procedure after Russia vetoed a Security Council resolution, the session has produced seven substantive resolutions, more than twenty plenary meetings, and historically large majorities: Resolution ES-11/1 condemned Russia’s aggression by 141 votes to 5.[35]

These resolutions are not binding. But their cumulative effect has been substantial. They have supplied the authoritative predicates that coalition states have invoked to justify coordinated sanctions, diplomatic measures, and the establishment of accountability mechanisms. Resolution ES-11/3 suspended Russia from the Human Rights Council. Resolution ES-11/5 established the International Register of Damage Caused by Russia’s Aggression.[36] Subsequent resolutions have affirmed Ukraine’s territorial integrity and called for accountability. The Assembly has functioned precisely as the framework developed here suggests: not as an alternative executive, but as a forum of collective judgment whose determinations supply legitimacy for coordinated enforcement by willing states.

The Ukraine sessions also illustrate the interaction between the Liechtenstein initiative and the broader dynamics of functional reconstruction. Russia’s veto of Security Council Resolution S/2022/155 triggered both an emergency special session under Uniting for Peace and a mandatory Assembly debate under Resolution 76/262. The two mechanisms operated in tandem, reinforcing the institutional practice of treating veto paralysis as an occasion for Assembly engagement rather than systemic silence. The pattern established through the Ukraine crisis – veto, Assembly debate, authoritative determination, coordinated coalition enforcement – constitutes the procedural spine of functional reconstruction in practice.

A parallel dynamic is visible in the Assembly’s engagement with the situation in the Occupied Palestinian Territory. In July 2024, the International Court of Justice delivered an advisory opinion – requested by the General Assembly – finding Israel’s continued presence in the Occupied Palestinian Territory unlawful and identifying obligations for all states.[37] In September 2024, the Assembly adopted Resolution ES-10/24 welcoming the opinion and calling on member states to take concrete measures in response. Here again, the Assembly has acted where the Security Council could not, supplying the authoritative determinations that states may invoke as predicates for coordinated action.

C. Related Institutional Developments

Several parallel developments reinforce the pattern. The France-Mexico initiative, launched in 2015, called on permanent members to voluntarily refrain from using the veto in cases of mass atrocity. Although limited in uptake, it has attracted over 106 signatories and contributed to the normative expectation that veto use requires justification.[38] The Accountability, Coherence and Transparency (ACT) Group, comprising 27 states, has promoted a code of conduct calling on all Council members not to vote against credible resolutions aimed at preventing or halting mass atrocities.[39]

These initiatives differ in ambition and mechanism. What unites them is a shared orientation: each treats Security Council paralysis not as constitutionally dispositive but as a condition that demands institutional response through alternative channels. The Pact for the Future, adopted by the General Assembly at the Summit of the Future in September 2024, reinforces this trajectory: it includes the most concrete commitment to Security Council reform since the 1960s, endorses the continued use of both the Uniting for Peace and veto accountability resolutions, and supports the General Assembly’s ‘growing activism in matters of peace and security, including when the Security Council is blocked’.[40] Read through the lens of practice theory, these developments represent the gradual emergence of what Adler and Pouliot would term a new ‘background knowledge’ – a shared understanding, increasingly taken for granted, that the Assembly has a legitimate constitutional role in collective security that intensifies when the Council is blocked.[41]

D. Practice and Doctrine as Complementary

The relationship between the doctrinal framework of functional reconstruction and these emerging practices is mutually constitutive. Doctrine provides the legal grammar that makes practice legible as constitutionally grounded rather than merely expedient. Practice gives doctrine material reality, demonstrating that the theoretical possibility of authority migration is being realised through the accumulated actions of states and institutions.

Neither element is sufficient alone. Doctrinal argument without institutional practice risks appearing abstract; practice without doctrinal grounding risks being dismissed as ad hoc or politically motivated. The convergence of both – the emergence of regularised practices that correspond to doctrinal expectations within the Charter’s framework – is what gives functional reconstruction plausible constitutional standing within the Charter framework. The process is neither complete nor irreversible. The practices described here suggest movement in that direction, though consolidation remains contingent.

VI. Re-Anchoring Collective Security in the General Assembly

Re-anchoring certain collective security functions in the General Assembly does not entail a claim that the Assembly may substitute itself for the Security Council, nor that it acquires enforcement competences analogous to those contemplated by Chapter VII. The claim is narrower and constitutional rather than executive: where the Security Council is persistently unable to discharge its primary responsibility owing to veto-induced paralysis, the General Assembly may exercise both derived and residual authority sufficient to sustain collective judgment, coordination, and legitimacy for responses short of force.

A. Primary Responsibility and the Significance of Non-Exclusivity

Article 24 of the Charter confers primary responsibility for the maintenance of international peace and security upon the Security Council.[42] The deliberate choice of ‘primary’ rather than ‘exclusive’ responsibility is constitutionally significant.[43] The Charter simultaneously vests the General Assembly with broad competences to discuss any matters within the scope of the Charter, to make recommendations to states, and to coordinate collective responses.[44] The resulting constitutional structure is not one of rigid hierarchy but of differentiated authority, calibrated to balance decisiveness with resilience.

In ordinary circumstances, the Security Council’s centrality dominates the system’s operation. In extraordinary circumstances – where the Council is rendered persistently non-functional by veto obstruction – the constitutional significance of non-exclusivity becomes critical. An institution of this importance cannot be permitted to fail by design. Treating Council inaction as legally conclusive in all circumstances would invert the Charter’s logic, transforming a stabilising device into a mechanism of constitutionalised dormancy. The Charter’s text does not clearly compel such an interpretation. On the contrary, the Charter’s architecture presupposes that institutional authority may be exercised across organs in pursuit of its purposes when the primary mechanism fails.

B. Uniting for Peace as Constitutional Practice Under Stress

The Uniting for Peace procedure, established by General Assembly Resolution 377(V) in 1950, permits the Assembly to meet in emergency special session within twenty-four hours when the Security Council fails to exercise its primary responsibility owing to lack of unanimity among permanent members.[45]

The circumstances of Uniting for Peace's adoption are worth acknowledging. Resolution 377(V) was initiated by the United States in November 1950 to ensure that the General Assembly could continue to authorise collective military action in Korea after the Soviet Union ended its boycott of the Security Council and reassumed its veto. The mechanism was, in that sense, a product of great-power self-interest rather than principled institutional design. That origin does not, however, undermine its constitutional significance. The legitimacy of an institutional practice does not depend on the purity of its founding motivation; it depends on whether the practice is consistent with the Charter's purposes and whether it has attracted durable acceptance across changing political alignments. On both counts, Uniting for Peace qualifies. It has been invoked by a range of states across ideological divides over seven decades, including by the Soviet bloc during the Suez crisis in 1956 – the very states that opposed its creation – and most recently in response to Russia's invasion of Ukraine. That breadth of acceptance is itself constitutional evidence of the mechanism's compatibility with the Charter framework.

Uniting for Peace provides the clearest illustration of how the Charter system responds to Security Council paralysis without constitutional rupture. Formally, it did not alter the legal status of Assembly resolutions. Constitutionally, however, it performed a critical function: preserving the organisation’s capacity to articulate authoritative collective judgment when the Council could not. That function has proven durable across decades. Its invocation in contemporary crises – including the Eleventh Emergency Special Session on Ukraine – confirms that it is not a Cold War relic but an adaptive constitutional mechanism.[46]

C. Advisory Opinions and the Constitutional Position of the Assembly

The International Court of Justice’s advisory opinions reinforce this understanding. In Certain Expenses of the United Nations, the Court rejected a narrow reading of the Assembly’s peace-and-security functions, emphasising that the Charter establishes a system of shared responsibility among organs acting within their respective competences.[47] In the Namibia advisory opinion, the Court recognised the constitutional significance of Assembly determinations adopted in response to Security Council paralysis.[48] These opinions do not confer enforcement authority on the Assembly. They do, however, reject interpretations that would render it inert whenever the Council is blocked.

D. Residual Authority and the Rejection of Total Dormancy

Beyond derived authority lies residual authority: authority that arises where persistent Security Council failure would otherwise extinguish collective response altogether. It is grounded not in institutional ambition but in the general principle of necessity.[49]

Where a permanent member employs the veto to prevent action in circumstances in which it has a direct interest – as party, patron, or guarantor of impunity – Council inaction cannot plausibly be characterised as an authoritative institutional determination that no response is warranted. To treat such inaction as conclusive risks converting the veto into a mechanism of constitutionalised impunity – a concern echoed in the Secretary-General’s warning regarding the systemic effects of unchecked violations.

Residual authority operates within strict constraints. It presupposes sustained Council incapacity rather than episodic disagreement; credible evidence that paralysis is attributable to veto obstruction rather than genuine uncertainty; and the presence of serious threats to peace or large-scale harm. These criteria require operationalisation. ‘Sustained incapacity’ should be understood to require a pattern of obstruction across multiple attempts to address the situation – not a single failed resolution, but repeated vetoes over an extended period in circumstances where the factual predicate for action is clear. The Syrian conflict, where Russia cast sixteen vetoes between 2011 and 2023 on resolutions addressing humanitarian access, chemical weapons use, and civilian protection, epitomises this threshold. ‘Credible evidence of veto obstruction’ turns on whether the vetoing state is directly interested – as a party, patron, or ally – rather than acting as a detached arbiter weighing escalation risks.

These thresholds are not self-applying, and functional reconstruction does not pretend otherwise. The determination that they have been met emerges through political processes rather than judicial pronouncement. This is a feature of the framework, not a defect. International law routinely operates through decentralised assessment: states determine for themselves whether conditions for countermeasures are satisfied, whether treaties have been materially breached, whether circumstances precluding wrongfulness obtain.[50] The absence of compulsory adjudication does not render these determinations lawless; it subjects them to the discipline of justification, contestation, and reputational consequence.

E. Representational Legitimacy and Assembly Dysfunction

The General Assembly’s role is reinforced by its representational legitimacy. As the only universally representative organ of the United Nations, it embodies the principle of sovereign equality more fully than any other institutional component.[51] That inclusiveness does not transform recommendations into binding obligations, but it confers authority as a forum of collective judgment.[52]

The Assembly is not immune to dysfunction. Bloc voting, performative resolutions, and selective mobilisation are familiar features of Assembly practice.[53] To argue for a re-anchoring of collective security functions in the Assembly is not to claim that it is a model deliberative body. It is to argue that the relevant comparison is between two forms of imperfection. Security Council paralysis represents concentrated dysfunction: the veto forecloses collective judgment entirely. Assembly dysfunction is diffuse: it may produce uneven or inconsistent judgments, but it preserves the system’s capacity to deliberate and to provide reference points for coordinated action. Imperfect collective judgment is preferable to constitutionalised silence.

VII. Treaty-Based Enforcement Coalitions

General Assembly determinations mitigate Security Council paralysis only if they connect to practical consequences. Treaty-based enforcement coalitions provide a lawful mechanism for doing so without breaching the Charter.

A. Legal Basis for Collective Measures Short of Force

States retain the capacity to enter into treaties providing for coordinated responses to breaches of international norms.[54] Such treaties may authorise sanctions, asset freezes, restrictions on financial transactions, arms embargoes, and maritime interdiction measures short of force. The Charter centralises authorisation of force, not all forms of collective response.[55] The tendency to treat Security Council inaction as legally dispositive across all coercive domains collapses this distinction and grants the veto a scope far beyond its textual or functional justification.

The legality of coordinated measures taken by non-injured states in response to serious breaches of peremptory norms remains the subject of doctrinal debate, particularly in relation to third-party countermeasures under the Articles on State Responsibility. Nothing in the present argument depends on resolving that debate conclusively. The framework rests on two narrower propositions: first, that the Charter does not centralise all non-forcible collective responses in the Security Council; and secondly, that treaty-based coordination of restrictive measures, when explicitly anchored to General Assembly determinations, occupies a different constitutional position from unilateral coercion. An Assembly determination of a breach of a peremptory norm – such as the prohibition on aggression – provides the authoritative basis for coordinated responses under general international law: the Assembly supplies the collective judgment that legitimises decentralised enforcement by states acting under their existing legal capacities.

The legal foundation for third-state responses in this context is the peremptory character of the norms at issue. Where the General Assembly determines that a situation involves a serious breach of a jus cogens norm – the prohibition on aggression, the prohibition on genocide – Articles 40 and 41 of the ILC's Articles on State Responsibility confirm that all states are under an obligation not to recognise the situation as lawful and may take lawful measures to bring the breach to an end. Assembly determination supplies the collective judgment; the peremptory norm supplies the legal entitlement to respond.

B. Assembly Linkage and Enhanced Legitimacy

Treaty-based enforcement coalitions acquire enhanced legitimacy when anchored to General Assembly determinations. While Assembly resolutions are not binding, they supply authoritative predicates: a broadly representative organ determines that a situation constitutes a threat to peace, involves serious violations, or amounts to aggression. States acting collectively pursuant to treaty commitments can then characterise their measures as part of an international response rather than unilateral coercion.[56] This linkage embeds enforcement measures within a representative process, reinforcing the UN’s normative centrality even as enforcement occurs outside the Security Council’s formal machinery.

C. Contemporary Practice: The Russia Sanctions Regime

The coordinated international response to Russia’s invasion of Ukraine provides the most significant illustration of this model in operation.[57] When Russia’s permanent member status rendered Security Council action impossible, a coalition of more than forty states imposed unprecedented restrictive measures without UN authorisation. The European Union alone has adopted fourteen packages of sanctions targeting over 2,200 individuals and entities and immobilising approximately €210 billion of Russian Central Bank assets.[58]

Crucially, this enforcement architecture was anchored to General Assembly determinations. Resolution ES-11/1, adopted by 141 to 5, supplied the authoritative predicate that coalition states invoked to justify their measures.[59] The structural significance of the episode is clear: collective enforcement occurred, coordinated across multiple jurisdictions, tethered to representative UN determinations, and operating through treaty-based frameworks – precisely the model of functional complementarity advanced in this article.

D. Managing Selectivity, Fragmentation, and Accountability

No enforcement model eliminates selectivity. Security Council centralisation does not ensure equal treatment; it entrenches selectivity through the veto. Treaty-based coalitions reflect power realities, but when structured through treaty commitments and tethered to Assembly determinations, they are more transparent and more constrained than unilateral action.[60]

Accountability within enforcement coalitions presents distinct challenges. The Russia sanctions regime has attracted criticism regarding due process deficits, inadequate humanitarian exemptions, and concentration of decision-making in bodies lacking global representation. Three mechanisms mitigate these risks: procedural safeguards within treaty frameworks (review mechanisms, sunset clauses, humanitarian exemptions); transparency regarding decision-making and designation criteria; and continued engagement with the General Assembly through reporting and responsiveness to its resolutions. These mechanisms do not guarantee perfect accountability. They subject enforcement coalitions to constraints beyond their own preferences – constraints absent from purely unilateral action.[61]

E. The Use-of-Force Question

The argument developed in this article concerns the erosion of exclusive Security Council authority primarily in non-forcible domains. The use of force occupies a structurally distinct position within the Charter framework. Article 2(4) establishes a general prohibition, and Articles 39–42 allocate authorising authority to the Security Council. Functional reconstruction proceeds cautiously in this domain precisely because the prohibition of force is foundational to the post-1945 order.

Yet the forcible domain cannot be insulated entirely from the structural logic of veto distortion. In extreme circumstances – particularly where credible evidence of ongoing genocide exists and a permanent member employs the veto while materially aligned with the responsible state – the Charter’s commitments may enter into tension. The obligation to prevent genocide, owed erga omnes, does not evaporate because the Security Council is paralysed.[62] At the same time, the prohibition on the use of force remains central to systemic stability.

Where sustained and self-interested veto obstruction shields peremptory violations, the claim that Council inaction is constitutionally dispositive becomes normatively strained. That strain does not automatically generate a lawful pathway to force, nor does it convert the General Assembly into an authorising organ. It does, however, underscore that the relationship between erga omnes obligations, institutional exclusivity, and Article 2(4) is not immune from constitutional stress.

Whether and under what conditions the loss-of-exclusivity principle might extend to the forcible domain in cases of jus cogens collision demands sustained doctrinal analysis beyond the scope of the present study. The present claim is narrower: veto-induced paralysis cannot be treated as normatively neutral where it shields the gravest violations of international law. Any evaluation of force in such circumstances must remain anchored in the Charter framework rather than outside it.[63]

VIII. Operationalising Functional Reconstruction

The preceding analysis establishes that functional reconstruction is doctrinally sound and constitutionally permissible. But doctrine without implementation is inert. This Part addresses the practical question: how would functional reconstruction operate in real time?

A. The Procedural Pathway

Functional reconstruction requires a sequence of institutional steps. The pathway from Security Council paralysis to coordinated enforcement involves four phases.

First, determination of Council incapacity. This requires a pattern of obstruction – multiple vetoes over an extended period, cast by states with direct interests, in circumstances where the factual predicate for action is clear. The determination emerges from the convergent assessments of states, the Secretary-General, regional organisations, and ultimately the General Assembly.

Secondly, General Assembly engagement. The procedural vehicle is the emergency special session under Uniting for Peace.[64] The Assembly’s role is threefold: making an authoritative determination regarding the situation; articulating the applicable legal framework; and recommending specific measures. These recommendations are not binding, but they carry constitutional weight as the collective judgment of the only universally representative organ of the United Nations.

Thirdly, coalition formation. General Assembly determinations acquire practical effect through treaty-based enforcement coalitions – pre-existing (such as the European Union) or ad hoc. Coalition states should explicitly reference the Assembly resolution as the basis for their measures, framing enforcement as implementation of a collective international response. Coalition formation should be open rather than exclusive, and transparency regarding membership, decision-making, and scope enhances legitimacy.

Fourthly, implementation and accountability. Enforcement measures must be implemented consistently with general international law. Coalition states are accountable to their own legal systems, to each other under treaty frameworks, and to the broader international community through continued reference to Assembly determinations. Where circumstances change, measures should be adjusted accordingly.

The Secretary-General possesses independent authority under Article 99 to bring matters threatening international peace and security to the Council’s attention.[65] Under functional reconstruction, this role extends to facilitating Assembly engagement through factual briefings, good offices, and coordination. Regional organisations under Chapter VIII may serve as both contributors to Assembly deliberation and implementers of enforcement measures.[66]

B. A Worked Example: Syria

The Syrian conflict illustrates where functional reconstruction would have applied – and what its absence cost. Between 2011 and 2023, Russia cast sixteen vetoes on Security Council resolutions addressing the Syrian situation, blocking measures ranging from humanitarian access to accountability for chemical weapons use.[67] The factual predicate for action was extensively documented by UN mechanisms and independent commissions of inquiry.[68]

By 2012, Council incapacity was manifest. Russia’s direct military involvement from 2015 removed any pretence of detached arbitration. The criteria for residual authority were satisfied. An emergency special session could have followed. The Assembly could have determined that Syria constituted a threat to international peace and that coordinated measures were warranted – targeted sanctions, arms restrictions, asset freezes, diplomatic isolation. The European Union, which ultimately adopted Syria sanctions through its own processes, could have anchored an enforcement coalition explicitly linked to the Assembly’s determination.[69]

Would this have ended the conflict? No. But it would have sustained collective judgment where silence prevailed; imposed consequences more comprehensive and legitimate than the fragmented sanctions that emerged; and preserved the institution’s claim to relevance rather than conceding the role of bystander to documented mass suffering.

C. Safeguards Against Abuse

Functional reconstruction incorporates multiple safeguards. Threshold requirements are demanding: sustained Council incapacity, veto obstruction attributable to direct interest, and serious threats to peace or large-scale harm. Representative deliberation ensures determinations reflect broad international consensus; resolutions commanding overwhelming majorities carry greater legitimacy than those adopted by narrow margins. Treaty-based constraint means coalitions operate through legal instruments with accountability mechanisms, not discretionary power. Continued UN anchoring requires ongoing reference to the Charter’s purposes and Assembly engagement. And non-forcible limitation confines the framework to measures short of force, preserving the Charter’s distinctive treatment of force as the most important constraint.

D. Relationship to Existing Reform Proposals

Functional reconstruction neither displaces nor competes with existing reform initiatives. Veto restraint initiatives – including the ACT Group’s code of conduct (now supported by over 120 states) and the France-Mexico political declaration – seek to build voluntary restraint; functional reconstruction provides an alternative pathway when they fail.[70] Security Council expansion proposals address the representational deficit but do not resolve the veto problem. General Assembly revitalisation efforts, particularly Resolution 76/262, align naturally with functional reconstruction and represent movement in the same direction.

Functional reconstruction cannot be reduced to a checklist. It operates within a domain of judgment, contestation, and political will. What doctrine can do is clarify the permissible, legitimate the willing, and provide a framework within which political will, where it exists, may be exercised with greater legal coherence. Functional reconstruction becomes constitutional practice through repetition, acceptance, and demonstrated restraint – not through a single authoritative pronouncement.

IX. Veto Abuse, Good Faith, and the Loss of Normative Authority

The Security Council veto is a Charter-based power conferred for a specific constitutional purpose. Like all treaty-based powers, it is constrained by the principle of good faith and by the object and purpose of the instrument that confers it.[71] Persistent use of the veto in a manner that defeats those purposes carries legal and institutional consequences, even where the formal validity of the veto itself is not in question.

International law routinely distinguishes between the validity of an act and its authoritative weight.[72] A power may be exercised lawfully and yet, through patterns of use inconsistent with its conferring purpose, lose the capacity to command institutional deference. The doctrine of abuse of rights captures this distinction. It does not invalidate the power; it conditions the weight attached to its exercise.

A. Abuse of Rights and Treaty-Based Powers

The abuse-of-rights doctrine reflects a structural principle of international law: that the exercise of a right must remain within the bounds of the purpose for which it was conferred.[73] Applied to treaty-based powers, it does not require proof of subjective bad faith. It turns on the effects of the exercise within the legal system. Where repeated invocation of a treaty right predictably undermines the very function the treaty was designed to serve, the authoritative weight of that invocation weakens.[74]

The Security Council veto exemplifies this dynamic. It was conferred to prevent enforcement action likely to escalate into great-power war.[75] Its stabilising logic presupposed that permanent members would ordinarily act as detached arbiters. Contemporary practice has eroded that presupposition: vetoes are now frequently cast by states directly implicated in the conflicts at issue, or by states whose strategic interests are closely aligned with one of the parties.

B. Stabilisation Versus Exculpation

This shift is constitutionally significant. Veto use consistent with the Charter’s stabilising rationale – reflecting genuine concern about escalation, legal uncertainty, or unintended consequences – is qualitatively different from veto use that predictably renders the Council inoperative in the face of serious violations of international law. The former preserves the Council’s role as a brake on catastrophic conflict. The latter converts it into a shield for impunity. The Charter does not support an interpretation under which the veto operates as a general licence to immunise conduct from collective scrutiny or response. To read it that way would be to constitutionalise impunity by implication. Guterres’s formulation is apt: ‘Impunity is the mother of chaos.’[76] The veto, when abused, becomes the instrument of that impunity – and the chaos follows.

This distinction does not require adjudication of individual vetoes. It operates at the level of institutional pattern. Sustained veto use in situations involving aggression, mass civilian harm, or manifest Charter violations – particularly where the vetoing state is directly interested – alters the normative meaning of Council inaction. In such circumstances, inaction cannot plausibly be characterised as an authoritative determination that no response is warranted. It is the product of structural obstruction.

C. Consequences Without Invalidity

The Charter does not contemplate judicial review of vetoes.[77] The legal consequence of abusive veto use therefore cannot be nullification. Instead, it lies in the loss of exclusivity. Where the Security Council is rendered persistently non-functional through veto obstruction inconsistent with the Charter’s purposes, its claim to exclusive authority over collective security responses weakens. This is the critical conceptual move: loss of exclusivity rather than transfer of competence.

The Liechtenstein initiative instantiates precisely this dynamic. Resolution 76/262 does not purport to invalidate any veto. But by requiring Assembly debate after each veto, it creates a regularised practice that diminishes the finality of Council paralysis. Each debate reinforces the expectation that veto use demands justification; each justification that fails to persuade the Assembly majority weakens the vetoing state’s claim that its action should foreclose further institutional response. Over time, this practice consolidates into a constitutional pattern: veto paralysis as occasion for Assembly engagement rather than institutional silence.

D. Authority Migration and Institutional Practice

Loss of exclusivity does not entail the disappearance of the Security Council. It remains the primary organ where it can function. What changes is the distribution of authority when it cannot. Under conditions of sustained paralysis, authority migrates – lawfully and conservatively – to other Charter-compatible mechanisms. This migration depends on sustained patterns of obstruction, credible eviden

ce of self-interested veto use, and the gravity of the underlying situation.[78]

E. Distinguishing the Present Account

It is important to distinguish this account from two influential but ultimately unworkable approaches. Proposals advocating a ‘responsibility not to veto’ depend on voluntary compliance by those least inclined to accept restraint; they do not address the consequences of non-compliance.[79] Abolitionist or judicial approaches are foreclosed by the Charter’s amendment architecture and by the absence of any credible adjudicative forum.[80] The present account accepts the permanence of the veto and the impossibility of its review, while refusing to allow its abusive use to exhaust the Charter’s collective security function.

F. Exceptionalism and the Erosion of Normative Authority

Exceptionalism accelerates institutional erosion. When powerful states invoke institutional constraints selectively – binding for others, optional for themselves – the prescriptive force of the institution migrates.[81] Authority in international law is sustained not by formal entitlement alone but by reciprocal restraint and consistent practice. Persistent veto abuse corrodes that authority from within. Functional reconstruction does not seek to punish such abuse. It seeks to prevent the legal order from becoming hostage to it.

X. Objections and Risks

A. Fragmentation and Systemic Disintegration

The risk of fragmentation is frequently invoked as a reason to resist any reallocation of authority.[82] This concern underestimates the extent to which fragmentation is already a feature of the existing system. Unilateral measures, informal coalitions, and selective enforcement have proliferated not because the Charter permits them, but because the Security Council cannot act. Functional reconstruction seeks to manage fragmentation rather than deny it, anchoring alternative pathways in Assembly determinations and treaty commitments. The relevant comparison is not between perfect centralisation and managed pluralism, but between unmanaged fragmentation and structured adaptation.

A related concern is that if authority migrates through practice, rival blocs might attempt analogous claims to reconfigure institutional authority in their favour. Two constraints mitigate this risk. First, functional reconstruction remains tethered to Charter purposes and General Assembly engagement – mechanisms that demand broad, representative participation rather than alignment with any particular bloc. Secondly, consolidation requires sustained practice across multiple instances with wide participation; fragmentary practice by a narrow coalition does not suffice to reconfigure a universal institution.

B. Selectivity and the Myth of Neutral Paralysis

Selectivity is not introduced by reconstruction; it is embedded in the current system. The veto does not ensure neutrality. It ensures that some situations receive no response at all. Paralysis is not impartiality; it reflects the interests of those with blocking power. Functional reconstruction promises a reduction in total inaction – an uncomfortable but unavoidable trade-off.[83]

C. Legitimacy, Power, and the Neo-Royalist Objection

A deeper variant holds that functional reconstruction misreads the preferences of major powers. On this view, states like Russia, China, and – under certain administrations – the United States may actively prefer institutional paralysis because it liberates them from multilateral constraint. The Security Council’s dysfunction is not, for these states, a problem to be solved; it is a feature to be preserved. Some scholars have argued that the contemporary international system is reverting to patterns of great-power competition more reminiscent of the sixteenth century than the post-1945 order – what has been termed ‘neo-royalism’, in which ruling cliques pursue transactional arrangements and hierarchical dominance rather than institutional cooperation.[84] On this account, functional reconstruction is not merely optimistic; it is anachronistic.

The 2025 United States National Security Strategy, discussed in Part I, lends this objection considerable weight. Its explicit rejection of multilateral constraint, combined with the withdrawal from dozens of international organisations and the creation of a ‘Board of Peace’ offering membership for a billion dollars, collectively represent the most comprehensive great-power defection from the multilateral order since 1945.[85] Functional reconstruction was designed precisely for conditions such as these. If the state that built the Charter system now treats it as dispensable, the case for a framework that does not depend on consistent P5 participation becomes not weaker but stronger.[86]

The objection has force, but it does not defeat the framework. Functional reconstruction does not depend on great-power consent. That is precisely its point. It enables collective response despite obstruction, not through the conversion of obstructing states. The relevant constituency is not the P5 but the broader membership of the United Nations – the states that comprise the General Assembly and that may choose to participate in enforcement coalitions. When powerful states float rival structures – membership purchased, accountability absent, legitimacy derived from wealth rather than representation – the normative centrality of the UN becomes a contested site.[87] Functional reconstruction seeks to preserve that centrality by demonstrating that the existing framework can respond even under conditions of great-power defection.

It is important here to distinguish functional reconstruction from earlier proposals that responded to great-power obstruction by proposing to bypass the UN altogether. The Concert of Democracies – advocated in the 2000s as an alternative forum in which like-minded states would assess for themselves when the use of force in humanitarian crises was warranted – represented precisely this approach. Its intellectual lineage ran from Kosovo – where retrospective UN legitimation was indeed achieved – through the arguments that intervention in Iraq and later Libya would follow the same pattern, and ultimately to proposals for Syria that made the same assumption. The record does not vindicate it. In each case, the absence of universal institutional anchoring produced interventions that were contested, selective, or counterproductive, and generated their own forms of impunity. The present framework is the antithesis of this tradition. Functional reconstruction requires General Assembly engagement and broadly open coalition formation; it does not create a self-selecting club of democracies – or of wealthy states – empowered to determine when coercion or force is appropriate. The legitimacy of collective action under functional reconstruction derives from representative process, not from the identity or professed values of the acting coalition. When powerful states construct rival structures in which membership is purchased and accountability is absent, the normative centrality of the UN becomes a contested site that functional reconstruction seeks to defend, not to replicate.

This is not to understate the difficulty. Great powers possess tools of resistance beyond the veto: diplomatic pressure on potential coalition members, economic retaliation against participating states, and sustained contestation of the framework’s legitimacy. The Russia sanctions regime succeeded in part because the coalition states possessed sufficient economic weight and political cohesion to absorb these costs; a similar coalition responding to conduct by China, or indeed by the United States, might face different calculations. Functional reconstruction does not promise that collective response will always be feasible. It promises that such response is lawful and legitimate when states are willing to undertake it. The framework cannot manufacture political will, but it can clarify that political will, where it exists, may be exercised within the constraints of international law. That clarification matters: it distinguishes coordinated enforcement from mere power projection, and it preserves the possibility of principled action even when such action is costly.[88]

D. Slippery Slopes

If residual authority is recognised in one context, what prevents its invocation in others? The answer lies in the criteria that constrain its operation: sustained Council incapacity attributable to veto obstruction, linked to serious threats to peace or large-scale harm. Residual authority does not confer enforcement power; it sustains judgment, coordination, and legitimacy. The limits of the General Assembly’s role remain intact.

E. Imperfection as a Constitutional Condition

The Charter was born of compromise. Its operation has always involved trade-offs between effectiveness and restraint. Functional reconstruction accepts imperfection as a constitutional condition. It does not seek to perfect the system but to preserve its capacity to function. The alternative is not a pristine Charter order but a husk – formally intact, substantively irrelevant.

XI. Conclusion: Reconstruction Without Rupture

It would be artificial to deny the normative dimension of this analysis. Functional reconstruction is advanced not only as a description of emerging institutional practice, but as an argument for its disciplined consolidation. Articulation does not create practice ex nihilo. Doctrine can stabilise expectations and discipline emerging patterns within the Charter’s constitutional grammar.

The paralysis of the Security Council in the face of contemporary threats to peace is a profound challenge to the Charter system. It does not compel abandonment of the Charter – we do not have the luxury of starting again – nor resignation to catastrophe. International law contains resources for a more measured response. The Secretary-General’s warning that ‘the context is chaos’ is not an epitaph but a diagnosis – and diagnoses invite treatment.[89]

Functional reconstruction offers a conservative path forward. It preserves institutional singularity while allowing authority to migrate in response to persistent dysfunction. By re-anchoring collective security functions in the General Assembly, giving practical effect to collective determinations through treaty-based enforcement coalitions, and recognising the consequences of abusive veto use, the international legal order can maintain continuity while restoring capacity. The emerging practices documented in this article – the Liechtenstein veto accountability initiative, the Ukraine emergency special sessions, the coordinated sanctions regimes anchored to Assembly determinations – demonstrate that this process is not merely theoretical. It is constitutional adaptation in real time.

The United Nations was created to prevent unrestrained power politics, not to constitutionalise it. Preserving that purpose requires adaptation as well as fidelity. The task is not to wait for systemic shock or unanimous consent, but to use the law and institutions that exist to ensure that collective security remains more than a rhetorical aspiration.[90]

The extension of this erosion-of-exclusivity logic to the forcible domain in cases of jus cogens collision raises distinct and difficult questions that cannot be resolved incidentally and warrant sustained and separate doctrinal analysis.

[1] For varying diagnoses of the crisis, see Ian Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council (2007); David D Caron, 'The Legitimacy of the Collective Authority of the Security Council' 87 AJIL (1993) 552; Simon Chesterman (ed), Secretary or General? The UN Secretary-General in World Politics (2007). For recent comprehensive treatments, see Mona Ali Khalil and Floriane Lavaud (eds), Empowering the UN Security Council: Reforms to Address Modern Threats (2024); Congyan Cai, Larissa van den Herik and Tiyanjana Maluwa, The UN Security Council and the Maintenance of Peace in a Changing World (2024); and Simon Chesterman, 'Untied Nations? Saving the UN Security Council' (2026) European Journal of International Law (forthcoming).

[2] UNGA, 'Secretary-General's Remarks to the General Assembly on Priorities for 2026' (15 January 2026) <https://www.un.org/sg/en/content/sg/statements/2026-01-15/secretary-generals-remarks-the-general-assembly-priorities-for-2026> accessed 16 January 2026.

[3] President Bill Clinton, 'Leadership for the Future', Address at the Royal Albert Hall, London (26 September 2006). The author was present.

[4] Boutros Boutros-Ghali, Unvanquished: A US–UN Saga (1999).

[5] Kofi Annan with Nader Mousavizadeh, Interventions: A Life in War and Peace (2012).

[6] The White House, The National Security Strategy of the United States of America (November 2025, published 4 December 2025). For analysis, see Brookings Institution, 'Breaking Down Trump's 2025 National Security Strategy' (9 December 2025); Better World Campaign, 'What the 2025 National Security Strategy Means for Multilateralism' (11 December 2025).

[7] On the Ukraine configuration, see Part V.B below and GA Res ES-11/1. On the Occupied Palestinian Territory configuration, see Part V.B below and Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (Advisory Opinion) [2024] ICJ Rep (19 July 2024); GA Res ES-10/24 (18 September 2024).

[8] Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI (hereinafter ‘UN Charter’), arts 23–27.

[9] Ruth B Russell, A History of the United Nations Charter: The Role of the United States 1940–1945 (1958) 713–749.

[10] Ibid; see also Ian Hurd, After Anarchy: Legitimacy and Power in the United Nations Security Council (2007) 85–120.

[11] See e.g. the development of international humanitarian law through the Geneva Conventions and Additional Protocols; the Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002).

[12] UN Charter, supra note 16, art 24(1).

[13] Ibid arts 10–14.

[14] Ibid arts 108, 109.

[15] See France and Mexico, ‘Political Declaration on Suspension of the Veto in Case of Mass Atrocities’ (2015). For analysis, see Jennifer Trahan, Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes (2020).

[16] See e.g. Bruce Ackerman, We the People: Foundations (1991), on the distinction between formal amendment and ‘constitutional moments’.

[17] See generally Jan Klabbers, An Introduction to International Organizations Law (4th edn, 2022), on the quasi-constitutional character of constituent instruments.

[18] UNGA, supra note 2.

[19] On R2P’s dependence on Security Council machinery, see Alex J Bellamy, Responsibility to Protect: The Global Effort to End Mass Atrocities (2009). For the Libya backlash and its effects on R2P’s institutional viability, see Adler-Nissen and Pouliot, ‘Power in Practice: Negotiating the International Intervention in Libya’ (2014) 20 EJIR 889.

[20] Ackerman, supra note 24; see also Cass R Sunstein, ‘Testing Minimalism: A Reply’ 104 Michigan Law Review (2005) 123.

[21] Parliament Act 1911, 1 & 2 Geo 5 c 13; Parliament Act 1949, 12, 13 & 14 Geo 6 c 103.

[22] Case 26/62 Van Gend en Loos [1963] ECR 1; Case 6/64 Costa v ENEL [1964] ECR 585.

[23] See Klabbers, supra note 25; Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174 (on implied powers).

[24] See Reparation for Injuries, supra note 30; on peacekeeping, see Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 151.

[25] Emanuel Adler and Vincent Pouliot, ‘International Practices’ (2011) 3 International Theory 1; Adler and Pouliot (eds), International Practices, supra note 14. See also Iver B Neumann, ‘Returning Practice to the Linguistic Turn: The Case of Diplomacy’ (2002) 31 Millennium 627 (foundational call for the practice turn).

[26] Adler and Pouliot, ‘International Practices’ (2011), supra note 33, at 6.

[27] Brunnée and Toope, supra note 14; see also their contribution to the Adler and Pouliot volume: Jutta Brunnée and Stephen J Toope, ‘Interactional International Law and the Practice of Legality’ in Adler and Pouliot (eds), International Practices, supra note 12, 108.

[28] Brunnée and Toope, supra note 14, at 303–350 (applying the interactional framework to the collective security regime and the prohibition on the use of force).

[29] See Adler and Pouliot, supra note 33, on how practices constitute the institutional structures within which they operate.

[30] See Koskenniemi and Leino, supra note 11.

[31] GA Res. 76/262 (26 April 2022). See Liechtenstein Permanent Mission, ‘General Assembly Veto Initiative’ https://www.liechtenstein.li/en/mission-new-york/veto-initiative.

[32] Rebecca Barber, ‘An Early Assessment of the General Assembly’s 2022 Veto Initiative’ (2023) 29 Global Governance 346.

[33] Christian Wenaweser, Permanent Representative of Liechtenstein to the United Nations, quoted in United Nations General Assembly, ‘General Assembly Overwhelmingly Adopts Resolution on Use of Veto’ (26 April 2022).

[34] GA Res. ES-11/1 (2 March 2022).

[35] GA Res. ES-11/1 (141-5-35); see also GA Res. ES-11/3 (7 April 2022) (suspending Russia from the Human Rights Council); GA Res. ES-11/4 (12 October 2022) (on territorial integrity).

[36] GA Res. ES-11/5 (14 November 2022) (establishing the International Register of Damage Caused by the Aggression of the Russian Federation against Ukraine).

[37] Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem (Advisory Opinion) [2024] ICJ, 19 July 2024. The General Assembly adopted Resolution ES-10/24 (18 September 2024) welcoming the opinion and calling on member states to take implementing measures.

[38] France and Mexico, supra note 23.

[39] ACT Group, ‘Code of Conduct regarding Security Council Action against Genocide, Crimes against Humanity or War Crimes’ (23 October 2015).

[40] UNGA, ‘Pact for the Future’ (adopted 22 September 2024) UN Doc A/RES/79/1. On the Pact’s peace and security commitments, including support for the Assembly’s role when the Council is blocked, see Carnegie Endowment for International Peace, ‘The Good – and Bad – News About the UN’s Summit of the Future’ (September 2024).

[41] On ‘background knowledge’ as the shared, often tacit understandings that sustain practices, see Adler and Pouliot, ‘International Practices’ (2011), supra note 33, at 7–8.

[42] UN Charter, supra note 16, art 24(1).

[43] See also Simma and others (eds), The Charter of the United Nations: A Commentary (3rd edn, 2012) art 24.

[44] UN Charter, supra note 16, arts 10–14.

[45] GA Res. 377(V) (3 November 1950).

[46] On the continued vitality of Uniting for Peace, see Christian Tomuschat, ‘Uniting for Peace’ (2008) Max Planck Encyclopedia of Public International Law.

[47] Certain Expenses of the United Nations, supra note 32.

[48] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 16.

[49] See generally the ILC’s treatment of necessity as a circumstance precluding wrongfulness: ILC, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts’ (2001) UN Doc A/56/10, art 25.

[50] See ibid arts 49–54 (on countermeasures), illustrating decentralised assessment in international law.

[51] UN Charter, supra note 16, art 2(1).

[52] Thomas M Franck, The Power of Legitimacy Among Nations (1990) 91–110.

[53] See e.g. M J Peterson, The UN General Assembly (Routledge 2006) 84–106; Simon Chesterman, Ian Johnstone and David M Malone (eds), Law and Practice of the United Nations (2nd edn, 2016) 142–58.

[54] Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 26.

[55] UN Charter, supra note 16, arts 2(4), 42. On the relationship between regional arrangements and the Security Council, see Tiyanjana Maluwa’s contribution in Cai, van den Herik and Maluwa, supra note 1.

[56] See generally Antonios Tzanakopoulos, Disobeying the Security Council: Countermeasures against Wrongful Sanctions (2011).

[57] For an overview, see European Council, ‘EU Restrictive Measures against Russia over Ukraine (since 2014)’ https://www.consilium.europa.eu/en/policies/sanctions/restrictive-measures-against-russia-over-ukraine/ – accessed 14 January 2026.

[58] Ibid.

[59] GA Res. ES-11/1, supra note 42.

[60] On third-party countermeasures, see ILC, supra note 55, art 54 and Commentary.

[61] For criticism of the sanctions regime’s accountability deficits, see e.g. the debates surrounding asset confiscation and humanitarian exemptions within the EU legal framework.

[62] Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277, art I. On the erga omnes character of the obligation, see Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] ICJ Rep 43, paras 161–162.

[63] Independent International Commission on Kosovo, The Kosovo Report: Conflict, International Response, Lessons Learned (2000) (distinguishing legality and legitimacy in the use-of-force context). For scholarly analysis, see Antonio Cassese, 'Ex Iniuria Ius Oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?' (1999) 10 EJIL 23.

[64] GA Res. 377(V), supra note 51, para A(1).

[65] UN Charter, supra note 16, art 99.

[66] UN Charter, supra note 16, ch VIII (arts 52–54).

[67] Security Council Report, ‘The Veto’ https://www.securitycouncilreport.org/un-security-council-working-methods/the-veto.php (documenting Russian vetoes on Syria from 2011–2023) – accessed 16 January 2026.

[68] See e.g. UN Human Rights Council, ‘Report of the Independent International Commission of Inquiry on the Syrian Arab Republic’ (16 August 2012) UN Doc A/HRC/21/50; OPCW-UN Joint Investigative Mechanism Reports.

[69] Council of the European Union, ‘Syria: EU Restrictive Measures’ https://www.consilium.europa.eu/en/policies/sanctions/syria/ – accessed 16 January 2026.

[70] See ACT Group, supra note 46; France and Mexico, supra note 23.

[71] Vienna Convention on the Law of Treaties, supra note 60, arts 26, 31. For comprehensive analysis of legal limits on veto use, see Trahan, supra note 23.

[72] See generally Hersch Lauterpacht, The Function of Law in the International Community (1933) 286–306.

[73] Vienna Convention on the Law of Treaties, supra note 60, art 26.

[74] Lauterpacht, supra note 80, 286–306; Michael Byers, ‘Abuse of Rights: An Old Principle, A New Age’ 47 McGill LJ (2002) 389.

[75] Russell, supra note 17, 713–749.

[76] UNGA, supra note 2.

[77] See Lockerbie, supra note 31; see also South West Africa Cases (Second Phase) ICJ Reports (1966) 6, Dissenting Opinion of Judge Tanaka, 250–253.

[78] See text accompanying notes 36–38 above. See also ACT Group, supra note 46.

[79] France and Mexico, supra note 23.

[80] For abolitionist arguments, see Nico Krisch, ‘The Security Council and the Great Powers’ in Vaughan Lowe and others (eds), The United Nations Security Council and War (2008). For judicial review arguments, see Devika Hovell, The Power of Process: The Value of Due Process in Security Council Sanctions Decision-Making (2016).

[81] See Michael Glennon, ‘Why the Security Council Failed’ 82 Foreign Affairs (2003) 16.

[82] See Koskenniemi and Leino, supra note 11.

[83] See Michael Glennon, supra note 89.

[84] Goddard and Newman, ‘Further Back to the Future: Neo-Royalism, the Trump Administration, and the Emerging International System’ 79 International Organization (2025) S12.

[85] The White House, National Security Strategy, supra note 9. The Brookings Institution observed that the NSS ‘makes sweeping arguments about American intent to enforce security and resource arrangements to its benefit within the Western Hemisphere, undermining the most essential point of the U.N., namely the prohibition against the acquisition of territory by force’: Bruce Jones, ‘Trump’s “Board of Peace” and the Multilateral Order’ (Brookings, 27 January 2026).

[86] The White House, ‘President Trump Ratifies Board of Peace in Historic Ceremony’ (22 January 2026) https://www.whitehouse.gov/articles/2026/01/president-trump-ratifies-board-of-peace-in-historic-ceremony-opening-path-to-hope-and-dignity-for-gazans/. Countries wishing permanent membership must pay US$1 billion into a fund controlled by the Chairman: see Charter of the Board of Peace, reproduced in Times of Israel (18 January 2026).

[87] See note 94 above. On the broader dynamics of rival institutional creation as a challenge to the multilateral order, see Goddard and Newman, supra note 92.

[88] See also GA Res. 377(V), supra note 51, para A(1); on the Secretary-General’s independent authority, UN Charter, supra note 16, art 99.

[89] UNGA, supra note 2. On the Charter’s endurance and the need to renew its foundational balance, see Devika Hovell, ‘The UN Charter at 80’ (EJIL: Talk!, 23 October 2025).

[90] Ibid.