Archive for
May, 2018

The ILC Meets in NYC:  Gender Diversity and End Work Product Emerge as Regular Themes  

by Kristen Boon

The International Law Commission, a group of 34 independent experts, charged with codifying and progressively developing international law is currently (and exceptionally) meeting at the UN in New York.

Amidst the substantive conversations on subsequent practice of treaties, customary international law, and jus cogens, there are two other themes that are coming up with some frequency.

First, the lack of gender diversity on the commission.  Second, the delay in developing the ILC’s work product into new treaties.

On gender diversity, the issue is a serious one.  In fact, a side event today is called “7 in 70”  that refers to 7 women in 70 years.   In its last elections, 4 women were elected to the ILC.  All were nominated from the European group.

While gender diversity has improved in many segments of the UN, the ILC remains seriously behind, and the Commissioners are concerned about it.   It is time to consider what new practices are required to improve diversity. For example, how can states open up their nomination process?  How can states ensure at the elections stage that that women are seriously considered?   As is well known, the ICC has an elections process designed to improve gender and other diversity on the bench, by a two list voting process.  As these photos show:  it has worked!

Compare this photo of the ILC members, and this photo of ICC judges.

Behind gender diversity is another consideration that a number of Commissioners have pointed out: although Art. 15 of the ILC Statute requires that its members be drawn from practice, academia and government, in reality, only individuals from well-funded organizations or institutions can make the unpaid 10-11 week commitment work.   The requirement to self-fund also has an impact on diversity, participation, and representation, particularly from developing countries.

A second theme of note is the fact that a major part of the work product envisioned for the ILC, namely the drafting of conventions, has slowed down.   The major recent projects of the ILC, such as State Responsibility, Responsibility of International Organizations, and Diplomatic Protection, have been replaced by the practice of writing draft articles (or conclusions) which are then taken note of by the General Assembly and recommended to Member States.  A number of countries, in particular Brazil, are heading the effort to move the Articles on State Responsibility, concluded in 2002, towards a treaty.  The idea is that the draft articles would serve as the basis of an eventual convention.  In addition, other issues could be discussion for addition, such as new articles on multiple breach or attribution.

From a law making process this issue is an interesting one:  states are asking what role the Commission should have in making law when it produces draft articles that are not turned into treaties, but then cited by courts as authoritative.   This issue of the paradox of form and authority was first raised by the late David Caron in 2002, when he noted the weight being given to draft articles.  Although many of the ASR are considered customary international law today, not all are, the most obvious example being the provisions on counter-measures.   If the ASR do become the subject of a new multilateral convention, it opens the way for other work product of the Commission, such as the Articles on Responsibility of IOs and the Articles on Diplomatic Protection to progress as well.

The International Community and the Challenge to the Rule of Law: The Future of Iran Nuclear Deal

by Katayoun Hosseinnejad and Pouria Askary

[Katayoun Hosseinnejad is a university lecturer of international law and attorney at law in Iran and Pouria Askary is an assistant professor of international law at law school of ATU and a visiting professor of law at Islamic Azad University and Tarbiat Modarres University.]

On May 10, two days after the US President pulled his country out of the Joint Comprehensive Plan of Action (JCPOA), Iranian Foreign Minister, in a letter to the UN Secretary General, states that ‘If JCPOA is to survive, the remaining JCPOA Participants and the international community need to fully ensure that Iran is compensated unconditionally through appropriate national, regional and global measures.’(here). While political discussion on this matter is ongoing, which has led, inter alia, to the recent European Commission’s decision demonstrating the EU’s commitment to the JCPOA by preserving the interests of European companies investing in Iran (Press release), this post discuses the legal obligations of states in preserving the JCPOA under the Charter, in general, and the Security Council Resolution 2231 (2015), in particular (here).

The Resolution 2231, aimed at settling the dispute over Iran’s nuclear programme, was adopted under Chapters VI and VII of the UN Charter by the affirmative votes of all the members of the Security Council including the US. The Resolution refers several times to Article 41 and explicitly mentions the obligation of states under Article 25 to accept and carry out the Security Council’s decisions. The Resolution, in its first paragraph, endorses the JCPOA and urges its full implementation.

As discussed by Dan Joyner and by Julian Ku, the JCPOA is not a treaty; however, the fact that it is endorsed and urged to be implemented in full by the Resolution 2231, makes it binding on the UN member states. The obligatory character of the Security Council’s decisions, even those that are not related to the enforcement measures under Chapter VII of the Charter, despite what has been argued by a few commentators, has been emphasized by the ICJ in its Advisory Opinion on Reparation for Injuries, when the Court pronounced:

The Charter has not been content to make the Organization created by it merely a centre ‘for harmonizing the actions of nations in the attainment of these common ends’ … It has defined the position of the Members in relation to the Organization by requiring them to give it every assistance in any action undertaken by it… and to accept and carry out the decisions of the Security Council… (Advisory Opinion, p. 178)

The Court elaborates this point further in its Advisory Opinion on Namibia, to reject the contention that Article 25 of the Charter applies only to enforcement measures adopted under Chapter VII of the Charter. The Court by emphasizing that ‘[i]t is not possible to find in the Charter any support for this view’, and the fact that this article ‘is placed, not in Chapter VII, but immediately after Article 24 in that part of the Charter which deals with the functions and powers of the Security Council’ holds that Article 25 ‘is not confined to decisions in regard to enforcement action but applies to “the decisions of the Security Council” adopted in accordance with the Charter.’ The Court adds further that a reading that limits the application of Article 25 to the enforcement measures under Chapter VII would make Article 25 ‘superfluous, since this effect is secured by Articles 48 and 49 of the Charter.’ (Advisory Opinion, para 113). Based on these considerations, the Court concludes that:

Thus when the Security Council adopts a decision under Article 25 in accordance with the Charter, it is for member States to comply with that decision… To hold otherwise would be to deprive this principal organ of its essential functions and powers under the Charter. (Advisory Opinion, para 116).

The Resolution 2231, adopted in accordance with the Charter, urges for the full implementation of the JCPOA. It calls upon all member states, as well as other international actors, to support its implementation and to refrain from actions that undermine implementation of commitments under the JCPOA (para 2). Hence, all the UN member states, including the US, are fully committed to implement the Resolution and the JCPOA, which forms a part of it. Although the use of the term ‘calls upon’ has led a few scholars such as John B. Bellinger to argue that this paragraph has not created any obligation under international law (here), as stated by the ICJ, the terms of the Security Council Resolution should be interpreted considering ‘all circumstances that might assist in determining [their] legal consequences’:

The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances… (Namibia Advisory Opinion, para 114).

To adhere to the idea that simply because of the use of the phrase ‘calls upon’ in the Resolution, states are free to refrain from its implementation makes the whole Resolution superfluous. The Resolution 2231, which marked a fundamental shift in the Security Council’s consideration of Iran’s nuclear issue, was adopted with the aim of providing a comprehensive solution to the dispute over Iran’s nuclear programme for which the comprehensive lifting of nuclear-related sanctions, including international and national sanctions, was an essential part, as stated in the Joint Plan of Action of E3/EU+3 and Iran issued on 24.11.2013. Thus, it cannot be argued that no state except Iran has hard law obligation in implementing the Resolution. In light of this, the recent decision of the United States to withdraw from this agreement and the measures it has taken to defy the implementation of the Resolution, by reapplications of US sanctions on Iran and its commercial partners in the world, is a material breach of its obligations to comply with the decisions of the Security Council under the Charter and therefore, entails its international responsibility.

The question, however, remains as to the legal relations arising from the occurrence of the US internationally wrongful act with the other UN member states.

Of course, every state, by virtue of its membership in the international community, has a legal interest in the fulfillment of certain essential obligations, and for that reason, states are under general obligation not to provide any aid or assistance to another with a view to facilitating the commission of an internationally wrongful act by the latter (Article 16 of the draft rules on state responsibility). Nevertheless, we believe that in this situation the UN member states have also positive obligations in taking appropriate measures to ensure the continuous implementation of the Resolution 2231 and the JCPOA, because the challenge imposed by the US is not only against Iran but it targets what forms the universally recognized bases of international legal order: pacta sunt servanda, good faith, multilateralism, international cooperation, and the rule of law.

Since the Charter is an international treaty, the obligations it contains are, from the point of view of their origin, treaty obligations for which all state parties, and not only the injured state, have an interest of a general character in compliance with it. Moreover, obligations of states under the Charter, in general, and the decisions of the Security Council, in particular, have special importance not only because of the expressed reference of Article 103, but also due to the important role they play in maintaining international peace and security.

The United Nations was established by peoples who were determined to ‘achieve international co-operation in solving international problems’ and for that purpose, their governments had obliged themselves to ‘fulfill in good faith the obligations assumed by them in accordance with the present Charter’. (Articles 1(3) & 2(2) of the Charter). The good faith performance of obligations of states under the Resolution 2231 requires them to take measures to enable its implementation. The Resolution contains positive obligations by emphasizing on the ‘States’ rights and obligations relating to international trade’ (preamble); it expressly underscores that member states are obligated under Article 25 of the Charter to accept and carry out the Security Council’s decisions (preamble). It further calls upon all member states, regional organizations and international organizations to take such actions as may be appropriate to support the implementation of the JCPOA, including by taking actions commensurate with the implementation plan set out in the JCPOA and the Resolution 2231 (para 2). The good faith implementation of these obligations cannot be equated with the mere disagreement with the violation occurred and for that reason, in the joint statement issued by the Prime Minister Theresa May, Chancellor Angela Merkel and President Emmanuel Macron, they announced their commitment to ensure ‘the continuing economic benefits … that are linked to the agreement.’ (here). In the same line, the EU high representative has emphasized that ‘for the sake of our own collective security’, not only the European Union is determined to preserve the deal, but also ‘expect the rest of the international community to continue to do its part to guarantee that it continues to be fully implemented.’ (here). Accordingly, the President of the European Commission stated that ‘We must act now and we will act now. That’s why we are launching the process to use the 1996 Blocking Statute to neutralise the extraterritorial effects of US sanctions on European companies’.

When a state violates such an obligation in a systematic way, i.e. ‘in an organized and deliberate way’ and with the clear intention to violate the norm, other states have obligations in stopping the violator as the ICJ in Consular Staff in Tehran case has emphasized:

Such events cannot fail to undermine the edifice of law carefully constructed by mankind… the maintenance of which is vital for the security and well-being of the complex international community of the present day, to which it is more essential than ever that the rules developed to ensure the ordered progress of relations between its members should be constantly and scrupulously respected. (Judgment, para 92).

The deal, which ‘is one of the biggest achievements diplomacy has ever delivered… belongs to the entire international community’, as correctly mentioned by the EU High Representative, Federica Mogherini (here). Faced with such a threat to the foundations of international legal system, the international community, in general, and Iran’s JCPOA partners, in particular, not only have strong interest but also obligation to take all necessary measures in order to guarantee the rule of law in international relations.

In closing, we thank Opinio Juris for letting us contribute this guest blog post.

PTC I’s Problematic Closed, Ex Parte Hearing on the Myanmar Situation

by Kevin Jon Heller

Last Friday, Pre-Trial Chamber I issued an Order Convening a Status Conference to consider the OTP’s request for a ruling on whether the ICC has jurisdiction over Myanmar’s deportation of the Rohingya to Bangladesh — an issue I discussed here. According to the Order, the status conference will be held “on 20 June 2018… in closed session, only in the presence of the Prosecutor.”

I find a number of aspects of the short Order troubling. To begin with, I don’t understand why the PTC believes the status conference has to be held in closed session. Whether the ICC has jurisdiction over deportation from a non-member state to a member state is a pure issue of law, so what justifies the secrecy?

The answer seems to come in paragraph 4 of the Order, where the PTC says that, “[w]ith a view to adjudicating the Prosecutor’s Request, the Chamber orders the Prosecutor to consider the issues set out in the annex appended to the present order and to address them during the status conference.” The PTC thus clearly believes that there are other issues at stake concerning the OTP’s request in addition to the purely legal one. But the annex is also secret, so we have no idea what those other issues might be.

I am also troubled by the ex parte nature of the status conference. Why are counsel for Myanmar and Bangladesh not invited, given that the interests of those states are obviously affected by the jurisdictional issue — particularly Myanmar’s, given that the conference concerns the potential criminal responsibility of its officials? Even if the PTC is within its power to hold the status conference ex parte (which it probably is), doing so will only further alienate non-member states concerned with the ICC’s overreach and penchant for secrecy. So I hope the PTC has a very good reason for inviting only the OTP.

Finally — and perhaps most problematically — there is no doubt whatsoever that the PTC’s Order violates the Regulations of the Court, which the judges themselves wrote and adopted. Here is Regulation 20, concerning public hearings (emphasis mine):

1. All hearings shall be held in public, unless otherwise provided in the Statute, Rules, these Regulations or ordered by the Chamber.

2. When a Chamber orders that certain hearings be held in closed session, the Chamber shall make public the reasons for such an order.

Even if we assume that the PTC has the power to hold a closed hearing, the Order does not comply with Regulation 20(2). The Order makes no attempt to explain why the status conference cannot be held in public. Literally none.

The PTC’s failure to comply with the Regulations and its general lack of transparency is unacceptable given the stakes — legal and otherwise — in the Myanmar situation.

ANZAC Day and Post Conflict Reconciliation

by Chris Jenks

[Chris Jenks is an associate professor of law and directs the criminal justice clinic at the SMU Dedman School of Law in the US.]

On April 25th, I had the privilege of attending an ANZAC Day dawn service at Kranji War Memorial Cemetery in Singapore jointly sponsored by the Australian and New Zealand High Commissions. While the significance of ANZAC Day is innate to the Aussies and Kiwis, I’m betting that the ANZAC Day story, and particularly the unique relationship with World War I enemy Turkey, is largely unknown to the wider OJ audience.

ANZAC (Australian and New Zealand Army Corps) Day is April 25th, the day in 1915 some 16,000 Australian and New Zealand soldiers landed on the beaches of what was then Ari Burnu Turkey, as part of the Gallipoli Campaign during World War I. By day’s end over 2,000 ANZACs and 3,000 Turks would be dead, though this would prove but a bloody down payment on the total human cost. Britain’s First Lord of the Admiralty, Winston Churchill, was the campaign’s architect. Employing a force of British, Commonwealth and French forces, the mission was to seize the Gallipoli peninsula in order to allow the allied navies to transit supplies to Russia and to threaten and ultimately capture Constantinople (now Istanbul) the capital of Turkey, a wartime ally of Germany. While Winston Churchill’s grandson has continued to defend the Gallipoli campaign as ‘the right thing to do’ , the chief historian at the Australian War Memorial contends that “really it was a foolish plan that was ill-conceived and resulted in a useless waste of far too many lives for no good effect.” Arguably the key to the Turkish defense was the efforts of Turkish Army Colonel Mustafa Kemal. [After WWI Turkey became a Republic and Kemal its first President. The Turkish National Parliament later honored him with the title Atatürk or Father of the Turks.]

On that first day the allies established such a minimal beachhead that they considered evacuating, to which the General Sir Ian Hamilton, the British commander of the operation replied “[y]ou have got through the difficult business, now you dig, dig, dig, until you are safe.” Wrong on all counts, other than that the allies, and the Turks for that matter, most certainly did dig. What followed was eight months of stalemate warfare that killed or wounded over 130,000 allied troops (roughly 28,000 of which were Aussies and close to 8,000 Kiwis) and well over 200,000 Turkish soldiers. The First World War was defined by horrific trench warfare yielding minimal strategic or even tactical advantage at the expense of millions of lives lost. What makes the Gallipoli campaign so significant? While I’m quite sure I at best know only part of the answer, here’s my attempt. For the Aussies and Kiwis, ANZAC day seems to have profoundly impacted and to some extent defines their national identity and spirit. It’s about courage in the face of the unknown, perseverance, and maybe above all mateship – friendship and loyalty. ANZAC Day is a national holiday and features a dawn vigil, military reunion marches, and memorial services. ANZAC Day has come to commemorate war dead not just from WWI but all military operations which the ANZAC coalition has participated.

While by no means diminishing what ANZAC day means to Australia and New Zealand, all countries have their holidays commemorating wartime service and sacrifice. But what makes ANZAC day so compelling to me is how the relationship between former battlefield enemies has evolved.

Flash forward from the 1915 Gallipoli Campaign to 1934. Attaturk, President of Turkey, purportedly authored a tribute to the ANZACS who fought, and died, in Turkey:

Those heroes that shed blood and lost their lives…. you are now lying in the soil of a friendly country. Therefore rest in peace. There is no difference between the Johnnies and the Mehmets to us, where they lie side by side in this country of ours… you, the mothers who sent their sons from faraway countries, wipe away your tears. Your sons are now lying in our bosom and are at peace. After having lost their lives on this land, they have become our sons as well.

I say purportedly as there are questions as to whether Attaturk authored those exact words.   Contemporary, almost gleeful, attempts by Australian and UK media to debunk the quote’s bona fides claim the origin of the exact wording no earlier than 1953 while documenting similar sounding comments by Attaturk praising the ANZAC spirit as far back as 1931 (“Whatever views we of the present or future generations of Turks may hold in regard to the rights or wrong of the world war, we shall never feel less respect for the men of Anzac and their deeds when battling against our armies … The Turks will always pay our tribute on the soil where the majority of your dead sleep on the windswept wastes of Gallipoli.”)

I don’t claim to know where truth lies, but in this context I feel like the historical analysis misses the mark and the broader symbolic importance. At the 2018 ANZAC Ceremony I attended, the Turkish Ambassador to Singapore read the “Johnnies and Mehmets” quote attributed to Attaturk and placed a wreath at a memorial in the cemetery, just the latest demonstration of the unique post conflict relationship between the ANZACS and Turkey, not despite their being wartime enemies but because of it.

Australia and New Zealand built monuments to Attaturk in their capital cities, Canberra and Wellington. The Australian Attaturk memorial is prominently positioned on ANZAC Parade, a boulevard lined with military memorials which connects the Australian War Memorial at one end with Parliament House at the other. The Attaturk memorial is literally the closest memorial to the Australian War Memorial. In New Zealand, the Attaturk memorial is located on a ridge outside Wellington which was chosen for its similarities to the landscape of the Gallipoli peninsula. For its part, Turkey changed the name of Ari Burno to ANZAC Cove and established the Gallipoli battlefield as a national park. The park contains a number of monuments, including one which includes the “Johnnies and Mehmets” quote, which the monument attributes to Attaturk.

I find the manner by which the ANZACs and Turkey not only reconciled following WWI but share commemorative efforts fascinating, compelling and in some ways contradictory. There have not been comparable efforts between the ANZACs and WWI (and obviously WW II) enemy Germany. And Turkey has struggled to acknowledge and reconcile its WW I role in the deaths of hundreds of thousands Armenians in Turkey. So I wonder if ANZAC Day offers all of us, Australia and New Zealand and Turkey included, a contemporary lesson in reconciliation.

I submit that the shared ANZAC/Turkey commemorative efforts are proof, yet again, of the connection, the bond, which exists between those facing similar and staggering adversity. The perverse irony here is that of course each side caused a large portion of the other’s suffering. But from there my analysis breaks down. I want to draw some broader post-conflict lesson from these efforts that might aid in their not being war in the first place. But the predicate to the commemorative efforts is, of course, the underlying armed conflict.

On the other hand, one would think that the ANZACs and Turkey’s efforts to not necessarily honour their former enemy but recognize them have made it at least less likely that those countries will fight each other again. And if all countries which fought each other were able to engage in similar commemorative efforts perhaps we might tip the balance in the debate on whether armed conflict is a normal or abnormal aspect of the human condition. Much easier said than done to be sure. I confess to being amazed at what and how the ANZACs and Turkey have done what they’ve done, while also pessimistic of those efforts being replicated. But their efforts are proof that it’s possible.

The Past, Present, and Future of the Veto: An Additional Reply to Dr. Mohamed Helal

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor at the NYU Center for Global Affairs.]

I, too, would like to thank Opinio Juris for our mini-symposium and dialogue on the use of the veto in the face of atrocity crimes. I hope it stimulates further thought, analysis and work on these important issues.

For those who missed the debates, I posted attacking the legality of Russia’s veto in the face of chemical weapons use in Syria, Dr. Mohamed Helal defended Russia’s veto use as consistent with the drafting of the UN Charter, and I responded. Kevin Jon Heller then weighed in on one particular aspect of my position, and I responded to him.

I will refrain from repeating earlier arguments, and will respond to Dr. Helal’s latest post—accepting his framework of examining Security Council veto use in the past, present and future.

First: The Past

Dr. Helal provides a strong historical account of the San Francisco Conference.

However, he had earlier written, in relationship to the situation in Syria, the Permanent Members “have exercised the veto exactly as anticipated when the UN Charter was negotiated.”

And, I made the point – well, no, they never discussed the kinds of vetoes that are occurring now: blocking chemical weapons inspections, blocking referrals for prosecution, blocking a ceasefire or blocking humanitarian aid.

Thus, I stand by my statement: “The veto power has morphed into contexts that were simply never discussed in 1945.” (This is obviously true, as these topics were simply not considered in 1945.)

But, at the same time, I did not draw the conclusion that because these matters were not discussed in 1945 that they were excluded from the veto—if we consider the veto as read in 1945.

If we examine the travaux préparatoires, the non-permanent member states were trying to exclude veto power generally, trying to exclude its use for a state involved in the dispute at hand, and trying to exclude its use for matters under Chapter VI—all to no avail. So, yes, I agree the Security Council’s power is quite broad, as the permanent members walked away in 1945 with a veto power having few express limitations.

Second: The Present

On the other hand, broad, does not mean unlimited. And here I think we should consider two other provision in the UN Charter:

Firstly, the Security Council also has duties. Article 24.1 gives it “primary responsibility for the maintenance of international peace and security.” This is described in the Charter as one of its “duties.”

Secondly, the Security Council also has a limitation placed on its actions. Article 24.2 states: “In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations.”

Therefore, the Security Council has both duties, and a limitation on its power directly contained in the Charter. The UN, and therefore its organ (the Security Council) is also subject to international law, so the veto power does not sit in isolation from the international legal system.

I will just briefly respond to Dr. Helal’s statement: the “Council enjoys boundless authority to decide whether a situation constitutes a threat to or breach of the peace or an act of aggression.” True, it can freely make that determination under its Chapter VII powers, but note that the International Criminal Court, for example, would not be bound by any substantive determination the Security Council makes as to the crime of aggression. See Rome Statute, art. 15bis, para. 9 and 15ter, para. 4. So this isn’t quite “boundless” authority if the ICC doesn’t have to listen to it for purposes of adjudicating individual criminal responsibility.

I will also note that Dr. Helal’s statement “Even if the Council determines that a situation is indeed a threat to the peace, breach of the peace, or act of aggression, nothing in the Charter requires it to take any action to address that situation,” is also somewhat contradicted by the text of Article 24.1 which suggests the Council has an obligation to act, or at least the primary obligation to act, to maintain “international peace and security.”

Alas, he is all too correct that the Council has acted “selectively” and treated “identical cases differently.”

Third: The Future

I am glad that Dr. Helal concedes we should not be limited to a 1945 construction of the UN Charter, but that we should read it “as a living document.” He mentions “subsequent practice” informing how we read the Charter.

Yet, because the Charter is the constitutive instrument of the UN system, it is not informed by just any “subsequent practice,” and probably not even “customary international law.” While the Charter is a treaty, it is not an ordinary treaty, but “the” treaty of the international legal system.

But what is above the Charter (hierarchically) are jus cogens norms.

And what is on a par with the Charter (and, hence, veto power contained in article 27.3), is the remainder of the Charter.

I did not make my argument based on “subsequent practice” as he suggests, nor did I ground it in R2P or the World Summit Outcome document, nor did I argue there is a “duty” to act in the face of atrocity crimes (although I reserve making that argument).

To clarify, we need to consider based on current law that presently exists (lex lata), whether:

  • a veto in the face of genocide, crimes against humanity or war crimes is consistent with jus cogens norms
  • a veto in the face of genocide, crimes against humanity or war crimes is consistent with the purposes and principles of the UN Charter, to which the UN Security Council is bound to adhere pursuant to Article 24.2.

To reinforce my 2nd point, for example (as I know he disagrees with my 1st point), note that the preamble to the Chemical Weapons Convention suggests use of chemical weapons is a violation of the purposes and principles of the UN Charter. (The preamble states that the Convention desires “to contribute to the realization of the purposes and principles of the Charter of the United Nations,” implying that use of chemical weapons is contrary to the purposes and principle of the Charter). Note also that chemical weapons use is likely also a “grave breach” of the 1949 Geneva Conventions because chemical weapons use would certainly constitute “willfully causing great suffering or serious injury to body or health.” How then is exercising the veto in the face of chemical weapons use consistent with the UN’s purposes and principles?

But, I also concede, there may be limits to what I am arguing: probably one cannot 100% change how the veto is used, because that would entail a Charter amendment, and the P5 have veto power over Charter amendments. I am not trying to bring on a constitutional crisis of the UN system, nor a result where one of the permanent members contemplates withdrawal.

What other states can do more of, for instance, in the upcoming debate on the Security Council and International Law on May 17, is to question how the veto power is being used, and press Russia (or any other state that uses the veto in the face of atrocity crimes), for example, to explain how its veto is: (1) consistent with jus cogens norms; and (2) consistent with the proposes and principles of the UN Charter.

I close with sharing Dr. Helal’s dismay at the inability of the UN to intervene effectively in mass atrocity situations and hope that we can revitalize R2P and/or use other bodies of international law to contribute to better using the tools of international law to serve the victims of atrocity crimes.

The Past, Present, and Future of the Veto: A Further Response to Professor Jennifer Trahan

by Mohamed Helal

[Dr. Mohamed Helal is an Assistant Professor of Law at the Moritz College of Law & Affiliated Faculty at the Mershon Center for International Security Studies, The Ohio State University.]

I would like to start off by thanking Opinio Juris for hosting what has evolved into something of a mini-symposium on the legality of the veto, the powers and purposes of the Security Council, and, implicitly, the values and principles underlying international law. I would also like to thank Professor Jennifer Trahan for engaging with and responding to my rejoinder to her original post and Professor Kevin Jon Heller for his important contribution to the conversation.

To avoid repeating the arguments I made in my previous post and in the interest of brevity, I have divided Professor Trahan’s arguments in her responses to Professor Heller and myself into three broad categories, which relate to the past, present, and future of the veto.

First: The Past

Professor Trahan listed examples of the measures that were included in the draft Security Council resolutions on the situation in Syria that were vetoed by Russia. These measures include referring the situation in Syria to the International Criminal Court (ICC), condemning the shelling of civilians and other human rights violations, calling for a ceasefire in Aleppo, and condemning the use of chemical weapons. Professor Trahan then stated that “there was nothing in the travaux préparatoires of the San Francisco Conference about using the veto in this way. The veto power has morphed into contexts that were simply never discussed in 1945.”

Professor Trahan is right, but draws the wrong conclusions from that observation. Of course there are no references in the travaux préparatoires to specific measures or actions, such as calling for a ceasefire or condemning human rights abuses, that may or may not be vetoed by the Permanent Members of the Security Council. Nor are there references to specific contexts, such as civil wars or acts of aggression, in which the Permanent Members may or may not use their veto power. This, however, is not an oversight or an inadvertent omission.

The reason, as I explained in my earlier response to Professor Trahan, is that during the negotiations on the UN Charter the future Permanent Members made absolutely sure that there would be virtually no limitations on their discretion to use the veto. Indeed, when pressed to identify the situations in which they would not use the veto, the future Permanent Members promised only not to prevent a UN Member State from bringing a matter to the attention of the Security Council. (Another limitation on the veto appears in Article 27(3) of the Charter, which requires the Permanent Members to abstain from the vote if the Security Council is exercising its powers under Chapter VI with respect to a dispute to which one of the Permanent Members is a party). The future Permanent Members were explicit that they reserved the right to veto any proposed measure or action, even the faintest diplomatic censure, beyond that basic right of a UN Member State to bring a matter to the attention of the Security Council. Therefore, contrary to Professor Trahan’s claim, the lack of any reference in the travaux préparatoires to permissible or impermissible uses of the veto is the result of the insistence of the Permanent Members that there be no limitation on the veto. (For a highly readable history of the drafting of the Charter, see: Stephen Schlesinger’s Act of Creation: The Founding of the United Nations. For a more academic and highly detailed history of the travaux préparatoires of the UN Charter, see: Ruth Russell, A History of the United Nations’ Charter: The Role of the United States, 1940–1945).

Moreover, and this is not a point I made in my first response to Professor Trahan, the breadth of the veto is matched by the essentially limitless discretion of the Security Council regarding whether and how to respond to a crisis or situation or dispute that threatens international peace and security. For the sake of space and concision, I will not provide a detailed reconstruction of this aspect of the travaux préparatoires of the Charter, but suffice it to say that the Council enjoys boundless authority to decide whether a situation constitutes a threat to or breach of the peace or an act of aggression. The Charter granted the Council the right to conclude that any conduct or situation even if not amounting to a breach of international law warranted the Council’s intervention. The Council is also under no obligation to determine that violations of international law – including acts of aggression or mass atrocities – constitute threats to or breaches of the peace. Even if the Council determines that a situation is indeed a threat to the peace, breach of the peace, or act of aggression, nothing in the Charter requires it to take any action to address that situation. Furthermore, nothing in the Charter requires the Council to act consistently. Situations, crises, or behavior previously deemed threatening to international peace and security does not need to be treated as such in future settings. In other words, the Council is not a global law enforcer; it is free to act selectively and to treat identical cases differently. (For more on this, see here and here)

Second: The Present

Professor Trahan argues that I am relying extensively on the negotiations that occurred in 1945 and writes that this “raises the question why should we be limited to a 1945 reading of the Charter and international law.” Professor Trahan then adds that “international law is sufficiently advanced that the Charter should be construed in a way that is consistent with jus cogens and the Charter’s own purposes and principles.”

I agree. Depending exclusively on the text of the UN Charter or its travaux préparatoires to interpret its content would be an exercise in tedious textualism and arid originalism. In fact, the Charter, like any treaty, ought to be read as a living document. The subsequent practice of the UN Member States and, to use the language of the Vienna Convention on the Law of Treaties, the “relevant rules of international law applicable in the relations between the parties” ought to inform the interpretation of the Charter.

Nonetheless, I still disagree with Professor Trahan’s assertions regarding the illegality of a veto by a Permanent Member in situations that relate to mass atrocities. Nothing in the subsequent practice of the UN Member States, the Security Council, or the other organs of the UN supports Professor Trahan’s claim that there exists any legal limitation on the veto. Nor have any rules of international law that have emerged since 1945 generated such a limitation on the veto. I have already challenged Professor Trahan’s claims regarding the impact of jus cognes on the right of Permanent Member to exercise the veto. In this post, I will focus on one especially glaring instance of practice that refutes Professor Trahan’s claim that a legal obligation on the Permanent Members not to veto resolutions on mass atrocities has emerged since 1945.

In 2005, the UN General Assembly adopted the World Summit Outcome Document, which included the much (and, I might add, unjustifiably) celebrated concept of the Responsibility to Protect (RtoP). The text of the Outcome Document, the language used to describe RtoP, and its application in subsequent years all demonstrate that the UN decided not to institute any limitations on the veto, including in cases of atrocity crimes. Moreover, RtoP as adopted by the UN in 2005, created no obligation whatsoever on the Security Council to take any action in response to mass atrocities. Instead, the General Assembly merely stated the following:

we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.

As I’ve argued in a previous article titled Justifying War and the Limits of Humanitarianism, in terms of international law, RtoP added nothing. It merely restated what we already knew; namely, that the Security Council may, on a case-by-case basis, intervene to prevent mass atrocities. Despite the emergence of a normative hierarchy in international law and the acceptance of the concepts of jus cogens and obligatio erga omnes, the international community elected not to create a positive obligation to prevent mass atrocities or to create any limitation on the veto. Some readers might suspect that this outcome was the result of the opposition of countries such as Russia, China, and the Non-Aligned Movement to the concept of RtoP. In fact, the reality is that some Western States, especially the US, were equally reluctant to accept any limitation on the veto or any obligation on the Security Council to intervene to prevent mass crimes (For more on that, see Edward Luck’s article titled Sovereignty, Choice, and the Responsibility to Protect). In a revealing letter sent to all Permanent Representatives to the UN, then-Ambassador (now National Security Adviser) John Bolton wrote the following:

[T]he Charter has never been interpreted as creating a legal obligation for Security Council members to support enforcement action in various cases involving serious breaches of international peace . . . We do not accept that either the United Nations as a whole, or the Security Council, or individual states, have an obligation to intervene under international law. We also believe that what the United Nations does in a particular situation should depend on the specific circumstances. Accordingly, we should avoid language that focuses on the obligation or responsibility of the international community and instead assert that we are prepared to take action.

The similarity between the language of the US Ambassador’s letter and the final language of RtoP should be patently apparent. This position is not unique to Republican Administrations nor is it attributable to John Bolton’s hawkishness and his avowed antipathy towards the UN and multilateralism generally. In 1998, the US Ambassador-at-Large for War Crimes, Professor David Scheffer, a democrat and ardent advocate of international criminal justice, explained the US interpretation of the obligation to prevent genocide, which is enshrined in the Genocide Convention. He stated:

States Parties confirm that genocide whether committed in time of peace or war, is a crime under international law that they undertake to prevent and punish … A State Party may choose from among a range of measures – diplomatic pressure, economic sanctions, judicial initiatives, or the use of military force – to undertake to prevent or punish genocide. But the State Party’s choice is necessarily discretionary. (Quoted in William Schabas, Genocide in International Law, p. 496)

Third: The Future

Finally, I would like to use this opportunity to briefly reflect on a broader normative matter.

I am unable to determine with certainty whether Professor Trahan believes that, as a matter of lex lata, a rule has emerged to prohibit vetoes by the Permanent Members of the Security Council in situations of mass atrocities. In her response to my post she stated: “I do not believe my arguments are de lege ferenda.” However, in her response to Professor Kevin Jon Heller, she wrote: “the international system needs to evolve in this direction, because we are at a log-jam with vetoes being used to [block] Security Council initiatives aimed at curtaining or alleviating the commission of genocide, crimes against humanity, and war crimes.” These statements indicate a degree of hesitance or ambiguity on the part of Professor Trahan in describing the state of international law as it is today.

Nonetheless, Professor Trahan is clear regarding where she thinks international law ought to go. Professor Trahan and many other international lawyers advocate limitations on the veto, especially in cases of mass atrocities, and highlight the human costs of the Security Council’s inaction. I share Professor Trahan’s dismay at the inability of the UN to intervene effectively in crises that entail mass human victimization. As I said in my initial response to Professor Trahan’s original post: “[t]he Syrian civil war and the human suffering it has wrought is a blight on the conscience of humanity. It is a tragic and heartbreaking situation.” I also clearly stated, contrary to Professor Trahan’s portrayal of my position, that “my objective is not to defend Russia or to engage in an apology for power politics.”

However, I have noticed that in legal academia there is a general lack of critical reflection on whether proposed limitations on the veto are entirely and unquestionably desirable from a policy perspective. Are there no potential downsides to restrictions on the veto? Are there no conceivable unintended consequences to alienating major powers that are also nuclear weapons states? Are there no potential costs to threatening the vital interests of those great powers? Are there no virtues to a rule that contributes to keeping the major powers in the UN and engaged in its diplomatic processes? Consider the countless occasions on which the United States vetoed draft resolutions that condemned Israel’s violations of international law, including international humanitarian law, in the Occupied Palestinian Territories, Lebanon, and elsewhere. Or think of the numerous US vetoes of resolutions critical of the situation in apartheid South Africa or Southern Rhodesia or Namibia. Or think of the US veto in June 2002 on a resolution on the situation in Bosnia because of American concerns regarding the possibility that US personnel could be brought before the ICC. Or think of a future scenario where a resolution is brought before the Security Council proposing admitting Taiwan to the United Nations either as a full member or as an observer. How would China react if it did not have the assurance of the veto?

Is it not conceivable that, in any one of these situations, a major power, such as the US or China or Russia might consider withdrawing from the UN or at least adopt an aggressive posture towards the organization? Indeed, the US already has a record of leaving major UN specialized agencies, such as UNESCO, or UN subsidiary organs, such as the Human Rights Council, when it felt that its foreign policy objectives were subjected to significant challenges in those bodies. Similarly, although in retrospect is proved to be a disastrous decision, Russia boycotted the Security Council in 1950 due to Western refusal to recognize the Peoples Republic of China as the legitimate representative of China. Would such an outcome be desirable? Would it contribute to promoting and preserving international peace and security?

Let me be abundantly clear. I have no definitive answers to these normative and policy questions. I offer them here merely as an invitation for critical reflection. Furthermore, my purpose is not to celebrate the veto. I am not oblivious to its human costs nor am I simply an apologist for power. However, international law and the causes of minimum world order and human rights will not be advanced by simply ignoring, wishing-away, or merely condemning the political reality in which international law operates.

The End of the Iran Deal and the Future of the Security Council Snapback

by Jean Galbraith

[Jean Galbraith is an Assistant Professor at the University of Pennsylvania Law School.]

Yesterday, President Trump announced that the United States will withdraw from the Iran deal. He is not claiming any major breach by Iran, but rather withdrawing because, in his view, it was a terrible deal from the start. As a matter of domestic and international law, he has the power to do this. As a matter of policy, this is a particularly ugly manifestation of the Trump Doctrine – of undoing President Obama’s signature initiatives based on dubious reasoning and questionable motives. Iran is a bad actor, but it is hard to fathom how this will be improved by re-raising its incentive to develop nuclear weapons, demonstrating that the United States is a deeply unreliable negotiating partner, and handing a propaganda gift to Iranian hard-liners.

But here we are. And what is next? I want to focus on one small piece of this unhappy question – the ability of the United States to invoke the “snapback” provision of Security Council Resolution 2231.

As a refresher, Resolution 2231 lifted prior sanctions imposed by the Security Council on Iran in the course of blessing the Iran deal (formally known as the Joint Comprehensive Plan of Action or JCPOA). These prior sanctions had been an important piece of the pressure brought to bear against Iran, in addition to separate sanctions imposed unilaterally by the United States and allies. But in lifting the Security Council sanctions, Resolution 2231 contained a “snapback” provision. This provision provides that if “a JCPOA participant State” notifies the Security Council of “an issue that the JCPOA participant State believes constitutes significant non-performance of commitments under the JCPOA,” then all the prior Security Council sanctions will be re-imposed on Iran after 30 days unless the Security Council affirmatively votes not to re-impose the sanctions. In other words, provided that the pre-conditions are met, a JCPOA participant State who wields a Security Council veto can single-handedly force the re-imposition of prior Security Council sanctions.

In announcing withdrawal from the Iran deal, President Trump did not mention the snapback provision. And the United States is unlikely to try to invoke the snapback provision immediately. As a matter of strategy, this seems like a good card to hold in reserve, at least until Iran actually does cease complying with the deal. As a matter of law, for the Trump Administration to even try to invoke the snapback, it must specify its belief that Iran is not substantially performing its commitments under the JCPOA – and so far, the United States has not even attempted to argue this.   Over on Lawfare, Elena Chackho writes that “[i]f the U.S. does attempt to trigger this ‘snap-back’ mechanism … it appears that there is little the other members of the Council can do to prevent the Security Council sanctions being re-imposed.” I disagree. As I’ve written earlier, other nations could appropriately dispute the legal effectiveness of the snapback’s invocation if the United States triggers it without good faith grounds for believing Iran to be significantly non-performing its commitments under the JCPOA.

But what if Iran later ceases its performance of the JCPOA, now that the United States has failed to hold up its end? In that case, could the Trump administration successfully invoke the snapback provision?

As a legal matter, I think this also poses some challenging questions of interpretation. The snapback provision turns out to have been drafted mostly in anticipation of the wrong contingency, namely the risk that Iran would be the initial defector. That makes it rather complicated to apply to the current situation. I am still thinking through the interpretive issues, but let me sketch out a few initial thoughts here.

Because the United States will be withdrawing from the deal and re-imposing sanctions on Iran, there are at least two reasons why it might not be entitled to invoke the snap-back provision. First, one could argue that the United States will have lost its right to do so. Textually, one could argue that it will no longer be a “JCPOA participant state” once it has withdrawn from the deal. This may sound persuasive, but it doesn’t work so well on a closer look at the text. In paragraph 10, Resolution 2231 speaks of “China, France, Germany, the Russian Federation, the United Kingdom, the United States, the European Union (EU), and Iran (the ‘JCPOA participants’).” Therefore, its use of “JCPOA participant state” just seems like a shorthand for these countries, excluding the EU. Nonetheless, the use of this shorthand does at least signal the underlying assumption that the party invoking the snapback will itself still be in the deal. This in turn might support a claim that the United States is estopped from invoking the snapback in a situation where it has itself first abandoned the deal.

Second, one could claim that the United States has no good-faith basis for believing Iran to be in “significant non-performance of commitments under the JCPOA” if Iran’s non-performance stems in turn from U.S. non-compliance. Let’s assume that, before ceasing its own performance, Iran invokes the dispute-resolution provisions of the JCPOA (which involve several steps, including ultimately an Advisory Board giving a non-binding opinion). Then, under paragraph 36 of the JCPOA, “[i]f the issue still has not been resolved to the satisfaction of the complaining participant, and if the complaining participant deems the issue to constitute significant non-performance, then the participant could treat the unresolved issue as grounds to cease performing its commitments under the JCPOA in whole or in part and/or notify the UN Security Council that it believes the issue constitutes non-performance.” Iran will presumably not notify the Security Council of U.S. non-performance, since that would trigger the snapback detrimental to Iran’s interests. But it will have “grounds to cease performing its commitments.” And if it has grounds to cease performing its commitments, then it is acting within its rights under the JCPOA. It is therefore not engaged in “significant non-performance of commitments” because these commitments have themselves been suspended. One can extend this, albeit with difficulty, to argue that the United States cannot make a good faith notification to the contrary. Overall, this argument is probably too cute to be convincing. It has a certain amount in common with the material breach argument that the United States used to justify the second Gulf War. Moreover, this reasoning would given Iran a way to duck the snapback any time it had exhausted the JCPOA dispute settlement provisions and continued to have a good-faith belief that one of the other JCPOA parties was failing to significantly perform under the deal – an interpretation which strikes me as unlikely to have been acceptable to the U.S. negotiators at the time.

But while these arguments are unlikely to be persuasive to all, they could well be persuasive to some. Any countries which are persuaded could legitimately dispute the legal effectiveness of the snapback’s invocation by the United States and therefore decline to treat the prior Security Council sanctions as being re-imposed on Iran. If they do this, the United States would not have any legal lever for making its invocation of the snapback prevail, except in the unlikely event that it could persuade the Security Council to formally endorse this invocation or have the Security Council (or General Assembly) seek and receive an advisory opinion from the International Court of Justice in favor of its interpretation. Thus, if the Trump Administration wishes to invoke the snapback, it must be aware that its own repudiation of the Iran deal may reduce the effectiveness of this invocation.

There is a broader point worth noting here about the use of snapbacks and other trigger termination provisions. After Resolution 2231 passed in 2015, I wrote a comment in AJIL celebrating the potential of such provisions. But I noted that these provisions need to “incorporate protection against arbitrary activation.” I also suggested that there would often be advantages to entrusting independent civil servants like the Secretary-General with the power to trigger termination, rather than vesting this power with individual states. These points seem all the more important today.

A Brief Response to Kevin Heller’s Comment About My Post

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor at the NYU Center for Global Affairs.]

The background to a series of Opinio Juris posts about proper use of Security Council veto power is: I have posted attacking the legality of Russia’s veto in the face of chemical weapons use in Syria, Dr. Mohamed Helal has defended Russia’s veto use as consistent with the drafting of the UN Charter, and I responded, not entirely denying that reading, but calling, in essence, for a more updated reading of the UN Charter (where the veto power derives from in article 27.3), that considers also other bodies of international law.

What I argued is that it is possible to read the Charter in the way Dr. Helal does, it is just not a satisfying reading to say the P5 are above all other sources of international law, so I argue that we should consider the interrelationship between jus cogens norms and the purposes and principles of the Charter, which should inform how the veto power is read. In other words, the veto power sits within a system of international law that conceivable has something to say about how it is utilized.

In responding to Dr. Helal, I argued that there are many other States that would take issue with an unrestrained reading of the Charter, specifically those that have joined the ACT Code of Conduct and French/Mexican initiative, which both call for voluntary veto restraint in the face of genocide, crimes against humanity and war crimes.

That these States call for “voluntary” veto restraint in the face of atrocity crimes—which I do note in my post—in no way implies, as Kevin Jon Heller argues, that these States maintain that there are no legal limits to the use of the veto. This is a leap in logic.

When States launched or joined these initiatives, this was the political “space” available to them—to endorse voluntary veto restraint. This shows a tremendous and recent shifting of collective consciousness that the veto should be subject to some form of restraint. It was not long ago that the “S5” countries withdrew a similar proposal, and the “responsibility not to veto” found in early iterations of the “responsibility to protect” then disappeared from R2P literature. So this areas has been undergoing a rapidly accelerated evolution.

The problem with voluntary veto restraint, however, is that three of the permanent members are not joining this voluntary restraint (the US, China and Russia). Thus, if the goal was to change Security Council voting through these initiatives, it cannot fully succeed until all five of the permanent members join, which might never happen.

There is nothing in States joining an initiative calling for voluntary veto restraint that suggests they do not support or maintain there could be other approaches to addressing the problem of unrestrained veto use.

The international system needs to evolve in this direction, because we are at a log-jam with vetoes being used to blog Security Council initiatives aimed at curtailing or alleviating the commission of genocide, crimes against humanity, and war crimes (with the vetoes on Syria providing just one example). And, we are at a log-jam when not all of the P5 will join the Code of Conduct or French/Mexican initiative. This is why we need to examine the interrelationship of the veto power and jus cogens norms, and the interrelationship of the veto power and the purposes and principles of the UN Charter, and seek a new approach—one that looks to the body of international law that we now have (not only what existed in 1945) as a way to interpret the veto power.

A Brief Comment on Jennifer Trahan’s Post About the P5

by Kevin Jon Heller

We have published a series of fascinating posts in recent days debating whether the permanent members of the Security Council have a legal obligation under the UN Charter not to veto resolutions calling for the investigation or prosecution of atrocity crimes. Jennifer Trahan argued yes; Mohamed Helal responded no; and Trahan replied yes again.

I am not convinced by Trahan’s response to Helal, but he can speak for himself. I simply want to take issue with one of Trahan’s central claims in her new post: namely, that a significant number of states reject the idea that the P5 “can veto absolutely any Security Council resolution, at complete discretion, without any concern whether their actions are consistent with other bodies of international law or the purposes and principles of the UN Charter.” Here is what she says:

The question is whether this is how one should read the UN Charter. And, whereas Dr. Helal attacks my post, as “utopian thinking” there are at least 115 States that have joined the ACT Code of Conduct and 96 States that have joined the French/Mexican initiative, both calling for veto restraint in the face of genocide, crimes against humanity or war crimes, that would likely take issue with his approach. Indeed, two of the permanent members of the Council (France and the United Kingdom) have joined these important initiatives—so even these permanent members do not maintain veto power should be unrestrained in the face of atrocity crimes.

In fact, both the ACT Code of Conduct and the French/Mexican initiative support Helal’s position, not Trahan’s. Trahan’s argument is that, as a matter of law, the P5 cannot veto a Security Council resolution calling for the investigation or prosecution of atrocity crimes. Both of the documents that Trahan cites, however, make clear states believe that, as a matter of policy, the P5 should not veto a Security Council resolution calling for the investigation or prosecution of atrocity crimes. Here is the Explanatory Note to the ACT Code of Conduct (emphasis mine):

UN Member States are increasingly expressing support for the idea that permanent members of the Security Council should voluntarily agree to refrain from using their veto in situations involving mass atrocity crimes. This initiative is actively being pursued by France, which is seeking the support of other permanent members.

And here is the French delegation to the UN explaining the France/Mexico initiative (emphasis mine):

France also promotes the framing of the use of veto by the five Security Council permanent members in case of mass atrocities.

At the United Nations Security Council, decisions are adopted with a majority of 9 votes out of the 15 votes of the Council’s members. Any decision is rejected if one of the five Security Council permanent members (China, France, Russia, The United Kingdom, and the United States of America) uses its veto power.

To avoid the paralysis of the Security Council, the President of the French Republic, François Hollande, proposed in 2013 that the permanent members voluntarily and collectively pledge not to use the veto in case of recognized mass atrocities.

Each document claims only that the P5 should “voluntarily” refrain from vetoing Security Council resolutions calling for the investigation or prosecution of atrocity crimes. Neither suggests that the P5 are under a legal duty to do so. Indeed, calling for voluntary renunciation of the veto would make no sense if the P5 were already legally obligated under the UN Charter not to veto.

In short: states’ support for the ACT Code of Conduct and the France/Mexico initiative provides significant opinio juris in favour of the idea that the P5 have a legal right to veto any Security Council resolution they oppose — even those that call for the investigation or prosecution of atrocity crimes.

Dr. Mohamed Helal’s Defense of Russia’s Syria Vetoes & Power Politics – A Rejoinder to His Criticism of My Post

by Jennifer Trahan

[Jennifer Trahan is an Associate Clinical Professor at the NYU Center for Global Affairs.]

In his Opinio Juris post on May 4, Dr. Mohamed Helal provides a defense of Russia’s veto use related to the situation in Syria, one that he defends as in line with the negotiations of the UN Charter and a vision of veto power of the permanent members of the Security Council as a virtual carte blanche.

There is some merit to his argument; indeed, it appears to correspond with how at least certain permanent members do indeed read the UN Charter – that they can veto absolutely any Security Council resolution, at complete discretion, without any concern whether their actions are consistent with other bodies of international law or the purposes and principles of the UN Charter.

The question is whether this is how one should read the UN Charter. And, whereas Dr. Helal attacks my post, as “utopian thinking” there are at least 115 States that have joined the ACT Code of Conduct and 96 States that have joined the French/Mexican initiative, both calling for veto restraint in the face of genocide, crimes against humanity or war crimes, that would likely take issue with his approach. Indeed, two of the permanent members of the Council (France and the United Kingdom) have joined these important initiatives—so even these permanent members do not maintain veto power should be unrestrained in the face of atrocity crimes. (I am hoping the United States will join the UK and France, and also take this important step.)

Dr. Helal misstates my arguments or overstates his case in significant respects.

First, he claims that, in relationship to the situation in Syria, the Permanent Members “have exercised the veto exactly as anticipated when the UN Charter was negotiated.” In fact, current practice is far removed from the substance of the 1945 negotiations.

Examining each of Russia’s 12 vetoes (sometimes joined by China) related to Syria, we see vetoes of resolutions to:

(1) condemn continued widespread and gross violations of human rights and fundamental freedoms (draft resolution S/2011/612);

(2) condemn bombing and shelling of population centers and condemn the detention of thousands in government-run facilities (draft resolution S/2012/538);

(3) refer the Syrian situation to the International Criminal Court (draft resolution S/2014/348);

(4) express outrage at the alarming number of civilian casualties, including those caused by indiscriminate aerial bombings in Aleppo (draft resolution S/2016/846);

(5) decide on a 7-day ceasefire in Aleppo and demand that humanitarian assistance be allowed in (draft resolution S/2016/1026);

(6) condemn the use of toxic chemicals as weapons and demanded compliance with the Organisation for the Prohibition of Chemical Weapons (OPCW) (draft resolution S/2017/172);

(7) decide to renew the mandate of the Joint Investigative Mechanism (JIM) conducting chemical weapons inspections (draft resolution S/2017/172); and

(8) condemn “any use of any toxic chemical, including chlorine, as a weapon in the Syrian Arab Republic and express . . . outrage that civilians continue to be killed and injured by chemical weapons and toxic chemicals as weapons in the Syrian Arab Republic” (draft resolution S/2018/321).

There was nothing in the travaux préparatoires of the San Francisco Conference about using the veto in this way. The veto power has morphed into contexts that were simply never discussed in 1945.

Second, his extensive reliance on travaux from 1945, raises the question why we should be limited to a 1945 reading of the Charter and international law. That would be an impoverished understanding of international law, given the extremely significant developments that have occurred since then. In 1945, the Genocide Convention was not yet codified; in 1945, there was no convention on crimes against humanity (and there still isn’t today, although it is in progress); in 1945, there were only early war crimes, not the ones recognized today. There is a strong argument that we should not be looking to international law only from 1945 when we read consider how to read the UN Charter.

Third, when he defends Russia’s Syria vetoes as proper because they are seen as in Russia’s “vital interests” that may be how Russia sees this, but it is simultaneously repugnant. It should never be in the “vital interests” of any country to block chemical weapons inspections, to block humanitarian assistance, to block ceasefires, to block condemnation of bombing and shelling of population centers, to block condemnation of the detention of thousands, or to block referrals for prosecution.

Fourth, he admits that his reading of the Charter (defending unlimited veto power) comes at a cost of all the victims of “murderous dictators and warmongers.” Then isn’t their a problem of his reading of the Charter when it is so far out of line with the dictates of humanity? If this is the conclusion reached—that it is fine to block chemical weapons inspections which then facilitate the Assad regime’s use of these universally condemned indiscriminate weapons—then international law is failing both us, and, more importantly, the victims.

Fifth, he misstates my argument by suggesting I argue that jus cogens imposes an obligation to act or prevent jus cogens violations. While I reserve making that argument, what I wrote was that jus cogens is relevant to considering how to construe the veto power—that we should not read the veto power “in a way that is at odds with other bodies of international law.” My argument is that the UN Charter should not be read in a way that is inconsistent with jus cogens; none of the organs of the UN should be able to act in a way that ignores the constraints of jus cogens.

Sixth, I also argue that the veto power also needs to be read in a way that is consistent with the UN Charter’s purposes and principles. This is required by UN Charter article 24.2, which states: “[i]n discharging [its] duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations.” How is it consistent with the Charter’s purposes and principles to use the veto in the way Russia (and sometimes China) have been doing related to Syria? The Security Council cannot be above the Charter—it was created by the Charter, and its powers are enumerated therein. One of the limitations on Security Council power is that its power must be exercised in a way that is consistent with the UN’s purposes and principles, otherwise, its exercise of power would be ultra vires.

Ultimately, I do not disagree that one can read the UN Charter the way that Dr. Mohamed Helal does; indeed, that is perhaps how far too many have been reading the Charter for far too long, uncritically accepting unlimited, unrestrained, veto use, that serves strategic alliances, and is unfettered by the constraints of international law and principles of humanity. This is just not an argument I want to make, or to accept. I do not believe my arguments are de lege ferenda, but that international law is sufficiently advanced that the Charter should be construed in a way that is consistent with jus cogens and the Charter’s own purposes and principles.

Jams v. IFC on IO Immunities

by Kristen Boon

On Thursday, May 10, the US Supreme Court will decide whether to grant cert in Budha Ismail Jam v.  International Financial Corporation(IFC), a case involving environmental damage arising from a coal fired power plant in India.    Two excellent blogs on the case written by Rishi Gulati in 2017 can be found here.

The case turns on the interpretation of a US Statute entitled The International Organizations Immunities Act which provides that international organizations designated by the President enjoy “the same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” 22 U.S.C. § 288a(b).

The plaintiffs argue that state immunity today clearly exempts commercial activities, and when an IO acts as a commercial lender in the marketplace, it should not be protected by immunities.  Their position is supported by the decision in OSS Nokalva v. ESA, and the concurring opinion of Pillard, J, at the District Court of Columbia Court of Appeals, who wrote:

Reading the IOIA to dynamically link organizations’ immunity to that of their member states makes sense.  The contrary view we adopted in Atkinson appears to allow states, subject to suit under the commercial activity exception of the FSIA, to carry on commercial activities with immunity through international organizations….  Neither the IOIA nor our cases interpreting it explain why nations that collectively breach contracts or otherwise act unlawfully through organizations should enjoy immunity in our courts when the same conduct would not be immunized if directly committed by a nation acting on its own.

The IFC argues that this phrase must be interpreted at the time in was enacted, in 1945, when foreign states enjoyed broad immunity.  Moreover, it argues the IOIA does not incorporate subsequent developments in the law of foreign-state immunity, including those enacted in the Foreign Sovereign Immunities Act (“FSIA”).   The briefs are available here.

There are a number of issues which the Supreme Court could usefully clarify if it takes the case, but I will mention three in particular.

First, it would be extremely helpful for the Court to unpack the analogies drawn between state and IO immunity in the IOIA.   Every other field of immunity (such as state, diplomatic, and charitable) has narrowed, and the presumption today of absolute IO immunity today stands as an outlier.  Any narrowing of IO immunity should be justified on its own grounds, and not simply in relation to the developments as regards to states.   As noted in Rishi Gulati’s post, the problem is the IOIA statute itself, which makes reference to state immunity.  As a result, the Supreme Court has to deal with problematic wording to get to this end.

Second, the concept of waiver has emerged as an extremely important issue in litigation over immunity. Specifically, what constitutes a waiver? Can it be express or implied?  Can it be given in advance?  And what does waiver practice in IOs tell us about the utility of this device?  The issue is particularly important with regards to the World Bank Group because these IOs have “charter-based waivers” built into their constituent instruments, which limit immunity in certain circumsntaces. Plaintiffs in suit against these organizations often argue that charter-based waivers exact a broad waiver of immunity. However, there have been occasions where courts have read down explicit provisions requiring waiver. In Mendaro, applying the ‘correspondent benefit’ test, the court analyzed the World Bank’s intent in including the waiver provision, and concluded it only waived immunity with regard to situations which  further its chartered activities.  A re-examination of Mendaro would be very timely, as it has had the effect of denying plaintiffs access to remedies despite an explicit provision for waiver in the charters of the WB group.

Third, given the increasing interest in and pressure on IOs to grant access to justice to individuals  affected by IO activities, these cases are part of a larger effort by classes of plaintiffs to get their day in court and clarify the relationship between immunity and responsibility for IOs today.  The Haiti Cholera Case, which I have written about here, for example, raises some similar issues (although it did not involve the IOIA).

This is an important case which raises significant legal issues.  It bears some similarities to another case, Honduras v. IFC,  making its way through the US courts.   I very much hope the US Supreme Court takes up the opportunity to weigh in.  If the Supreme Court were to lift or narrow the IFC’s immunities, it would then be necessary to assess the scope of the IFC’s liability (lender liability) and determine which substantive tort law applies, given that the acts took place outside of the US.

Something is Not Always Better Than Nothing: Against a Narrow Threshold Justification for Humanitarian Intervention

by David Hughes and Yahli Shereshevsky

[David Hughes and Yahli Shereshevsky are Grotius Research Scholars at Michigan Law School.]

Western forces have again attacked Syria following the suspected use of chemical weapons by the al-Assad regime. As in 2013 and 2017, international lawyers largely agree that the recent US, French, and British-led operation is illegal. Yet the recent strikes against chemical weapons facilities in Damascus and Homs are part of an enduring narrative concerning the legality and efficacy of unilateral (or unauthorized) humanitarian intervention (UHI). Within this discourse, a majority of legal scholars assert that humanitarian intervention – devoid of Security Council authorization – is legally invalid. However, as a recent post in Just Security demonstrates, though many states share this view, an increasing group now employ justificatory rhetoric in defense of the recent attacks. This rhetoric signals a potential shift. Following the NATO-led intervention in Kosovo, states and scholars vindicated the military response through universal appeals to human rights and justice. This language often remained non-specific. More recently, however, the language assumes precision. It abandons general assessments of an atrocity’s gravity and favors identification of particular incidents – like the use of chemical weapons – as a trigger to legitimize or legalize humanitarian intervention.

The response of international lawyers has been divided. Harold Koh identifies three camps, helpfully categorizing the broad positions that international lawyers assume within this debate. The first (and most sizable) holds that UHI is both illegal and illegitimate. The second offers that the practice remains illegal but certain manifestations may be legitimate. Finally, the third group are reformist (though some within this group already regard humanitarian intervention as lawful). They wish to create a more effective legal system to evaluate, and when necessary, facilitate humanitarian intervention as both a viable and legal response to atrocity crimes.

We address the second and third camps. Following recent events in Syria, some approaches offered by those who wish to preserve the necessity of humanitarian intervention exhibit a similar tendency to those states that seek to vindicate the recent strikes in narrow, incident-specific terms. Narrow exception tests that fail to appeal to the general gravity of atrocities risk further eroding the legal regime governing the use of force. Relegating broad appeals to gravity facilitates (often inadvertently) disingenuous attempts by states to harness humanitarian intervention’s moral force in furtherance of specific interests. The past week evidences how appeals to a chemical weapons justification contribute toward a narrative suggesting that the desire of certain states to reduce the threat of non-conventional weapons is motivated by strategic geopolitical objectives and not the harm these weapons cause. Further, such justification stands in contrast to the call for “common-sense” legitimacy – the appeal to the overarching gravity and universality of an atrocity – that constitutes the most persuasive case for deviating from black-letter adherence to the relevant norms. Those proponents of humanitarian intervention that offer justification premised upon a narrow threshold exception inadvertently diminish the normative force of the call for humanitarian intervention.

A move from the moral origins of humanitarian intervention towards incident-specific justifications:

The moral appeal of humanitarian intervention is grounded in the notion of gravity. Proponents of UHI traditionally suggested that the prevention of atrocity is compelled by the seriousness of the triggering event. Justification relied upon a broad humanitarian rationale. It discounted competing considerations that may otherwise prompt, or serve as a guise for, state interests. Traditionally, discussions concerning the appropriate standard for UHI identified the gravity of the atrocities before subsequent considerations regarding the necessity or effectiveness of the intervention. The case of Kosovo provides example. Here, the United Kingdom, did not appeal to a specific threshold. Instead, they justified their actions as a response to a “humanitarian catastrophe.” Other governments and NATO provided similar rationales.

Justifications of, and responses to, the recent events in Syria exhibit an increasing tendency amongst states to abandon gravity-based appeals. Instead, we are offered narrow exceptions in justification of UHI. These increasingly preference specific incidents, like the use of chemical weapons, above general assessments of the seriousness of the humanitarian crisis.

The United Kingdom was the first of the three states that recently intervened in Syria to provide legal reasoning. The UK appears to have maintained its gravity-based justification of UHI. Its defense of the Syrian attack began in conformity with its 2013 rationale which based legality on: (i) evidence of large-scale humanitarian distress; (ii) absence of alternatives to the use of force; and (iii) the necessary, proportionate, and limited application of force. Now, departing from their Kosovo approach, the British referenced the more limited use of chemical weapons to satisfy the test’s criteria. They concluded that, “military intervention…in order effectively to alleviate humanitarian distress by degrading the Syrian regime’s chemical weapons capability and deterring further chemical weapons attacks was necessary and proportionate and therefore legally justifiable [emphasis added].”

Though Britain’s reasoning has been criticized on various grounds, it is our present concern that deriving legal permissibility from an incident-specific threshold facilitates, as Marko Milanovic recognized, “a limited intervention focused specifically on chemical weapons, but that does almost nothing for the wider humanitarian catastrophe.”

While the British justification began by appealing to the gravity of the Syrian crisis, its turn to the specific use of chemical weapons was accentuated by other states. In its statement to the Security Council, France noted Syria’s disregard for basic humanitarian principles. After citing the scope of the catastrophe, France shifted emphasis. Their Permanent Representative to the UN stated that, “the Syrian regime has been using the most terrifying weapons of mass destruction – chemical weapons – to massacre and terrorize its civilian population.” This focus, on the use of chemical weapons, prioritized strategic interests above gravity-based humanitarian considerations. France declared that the use of such weapons constituted a threshold of which violation could not be tolerated. In response to their deployment, the Syrian operation was described as compliant with the UN Charter. France noted that the Syrian operation, “was developed within a proportionate framework, restricted to specific objectives… Syria’s capacity to develop, refine and manufacture chemical weapons has been rendered inoperative. That was the only goal and it was achieved [emphasis added].”

The United States has not yet offered a formal legal justification. Initial political pronouncements accentuated humanitarian considerations. More recently, however, Secretary of Defense Mattis linked enforcement of a prohibition on the use of chemical weapons with the operation’s legality. The Secretary told a press briefing that, “… we worked together to maintain the prohibition on the use of chemical weapons… We did what we believe was right under international law, under our nation’s law.”

Several states have expressed support for the attack. The vast majority have based their (often limited) reasoning on the use of chemical weapons. Prime Minister Trudeau noted that, “Canada condemns in the strongest possible terms the use of chemical weapons in last week’s attack…Canada supports the decision by the United States, the United Kingdom, and France to take action to degrade the Assad regime’s ability to launch chemical weapons attacks against its own people.” Similarly, Prime Minister Abe stated that, “the Japanese government supports the resolve of the United States, Britain and France not to allow the proliferation or use of chemical weapons.” Chancellor Merkel informed that the acting states had taken, “responsibility in this way as permanent members of the UN Security Council…to maintain the effectiveness of the international rejection of chemical weapons use and to warn the Syrian regime against further violations.” Israel issued a statement noting that, “last year, President Trump made clear that the use of chemical weapons crosses a red line. Tonight, under American leadership, the United States, France and the United Kingdom enforced that line.” Finally, the NATO Secretary General stated that, “the use of chemical weapons is unacceptable, and those responsible must be held accountable.”

Resisting a limited threshold exception for humanitarian intervention:

These legal and extra-legal arguments have caused some commentators to ponder the emergence of a narrow threshold. This has led to suggestions that UHI may be justified if this threshold – increasingly identified as the use of chemical weapons – is breached. Endorsements of this view appeal to the belief that “something is better than nothing.” They accept the achievable rather than the ideal. And they perceive, while pursuing alignment with, an emerging state practice that exhibits tolerance of a particular form of narrow intervention.

Following the US, British, and French operation, Harold Koh reiterated his call for legal reform. Koh proposes a six-stage test. Though this begins with a traditional appeal to the general gravity of the event – humanitarian intervention is framed as a need “to prevent or mitigate extreme human rights disasters” – the proposed test diverges from its justificatory origins. The test’s first stage is described as mandatory and requires:

“a humanitarian crisis [that] creates consequences significantly disruptive of international order – including proliferation of chemical weapons, massive refugee flows, and events destabilizing to regional peace and security – that would likely soon create an imminent threat to the acting nations (which would give rise to an urgent need to act in individual and collective self-defense under U.N. Charter Article 51) [emphasis added].”

The test’s second stage – described as a criterion that may strengthen justificatory appeals – refers to an intervention that, “would help to avoid a per se illegal end, e.g., genocide war crimes, crimes against humanity, or an avertable humanitarian disaster, such as the widespread slaughter of innocent civilians…” Koh’s approach demands that the intervening state(s) exhibits a vested interest while relegating justifications grounded in gravity and universality to a secondary (non-mandatory) consideration.

Koh’s proposal has become the focal point for reformist efforts. These have increased as the recent attacks and the desire to respond to the ongoing Syrian crisis have prompted the adoption of a narrow threshold. Andrew Bell advocates for a qualitative approach. The use of chemical or biological weapons provides an identifiable standard. Bell proposes that a violation of this standard would justify humanitarian intervention. Anders Henriksen considers whether a specific norm has emerged that permits an intervention in response to the use of chemical weapons. This would maintain the assumption of illegality toward instances that do not cross this threshold. Charles Dunlap, also responding to the events in Syria, conducts a similar inquiry while employing a different legal argument.

These proponents, alongside those who view UHI as invariably illegal, participate in a broader debate regarding the use of force. Variants of this debate are present within considerations regarding the use of force against non-state actors, the employment of anticipatory self-defense in reply to an imminent attack, and, of current relevance, the appropriate use of humanitarian intervention. On one side of this debate is the belief that strict doctrinal adherence to the UN Charter’s prohibition on the use of force is necessary to ensure legitimacy and prevent abuse. Alternatively, others hold that this regime is threatened by a schism between what states do or moral necessity and a formalist interpretation of the law limiting the use of force.

This becomes a conversation about the legitimacy and efficacy of international law. It is a debate about how to best preserve international law’s relevancy and insulate against its misuse. Responding to the dictates of realpolitik, instances of Security Council paralysis, and a lineage of cynical legal arguments favoring misguided “humanitarian” forays, this broader discourse proposes “appropriate” responses to this reality. Those supporting the necessity of humanitarian intervention believe that the legitimacy of international law, the demands of morality, and an accurate accounting of state actions are best served by a reading of the UN Charter and international law that permits a qualified form of UHI.

These proponents of humanitarian intervention traditionally employ the language of sensibleness. Common-sense appeals to the legitimacy of intervention will begin with the paradigmatic case of genocide and there is room to debate where they will end. These arguments derive normative force from the atrocity’s gravity. They constitute the strongest argument in favor of developing a legal exception to Article 2(4) of the UN Charter, of revising a traditional conception of sovereignty, of expending military force and resources, and of promoting a cosmopolitan ideal. It is unlikely that common-sense appeals to an atrocity’s gravity will persuade that intervention is legitimate to prevent the use of chemical weapons (or other narrow exceptions) while it is not legitimate in response to the equally grave, and often much worse, atrocities caused by conventional weapons. Reasoning that favors a limited threshold exception does not adhere to the internal logic expressed by proponents of humanitarian intervention who believe that the law must better fit the dictates of reality, the demands of morality, and the needs of the international community.

Efforts to ensure against the abuse of a humanitarian exception to the prohibition on the use of force are ever-present. This concern is, of course, very real. The desire to protect against such abuse through a clearly identifiable threshold is understandable. Yet, the appeal to a chemical weapons exception must be understood in light of the various statements of the involved and supportive actors whose motivations appear to depart from the underlying humanitarian justifications that traditionally accompany the call for UHI.

Endorsement of this approach by proponents of humanitarian intervention poses another, subtler, danger. This danger remains relevant even in cases where there is a genuine belief that the actors operated in good-faith and no fear of abuse exists. Divergence from black-letter adherence to the use of force regime entails significant cost. It may only be justified by reasoning that these costs are less than the alternative costs incurred by failing to address the dictates of reality. The normative case for humanitarian intervention is contingent on a common-sense legitimacy argument rather than only upon the provision of a workable test or standard. The case for humanitarian intervention must subscribe to a general notion of gravity to persuasively offer an attractive alternative to a formal reading of the Charter.

Prioritizations of gravity appear to be missing from this current trend. For example, Andrew Bell does not sufficiently address the gravity argument when he proposes adoption of a limited exception. Similarly, and as Kimberly Trapp suggests, Koh discounts many potential atrocities that do not threaten the intervening state. Such endorsements of UHI shift the discourse away from universalist and gravity-based considerations that have supplied proponents of humanitarian intervention with normative purchase.

Clearly, workability and relevant safeguards demand consideration by those proposing a UHI framework. Yet proponents, those who favor a limited approach or narrow threshold, would be well-served to resist a shift away from gravity-based justifications. A narrow exemption test that fails to prioritize assessments of gravity is problematic. Similar arguments, favoring a limited exception, are increasingly employed by states in justification of and in response to the recent use of chemical weapons in Syria. By abandoning or deemphasizing the common-sense legitimacy and gravity-based approach, the language of humanitarian intervention conflates with the strategic political calculations of certain states. Proponents of humanitarian intervention must adhere to their internal logic to strengthen the genuine humanitarian interests, moral coherence, and legal viability of their respective positions.

On the Legality of the Russian Vetoes in the UN Security Council and the Harsh Reality of International Law: A Rejoinder to Professor Jennifer Trahan

by Mohamed Helal

[Dr. Mohamed Helal is an Assistant Professor of Law at the Moritz College of Law & Affiliated Faculty at the Mershon Center for International Security Studies, The Ohio State University.]

On April 10, 2018, Russia vetoed a UN Security Council resolution drafted by the United States that would have created a mechanism to investigate the use of chemical weapons against civilians in Syria. This Russian veto was neither unexpected nor unprecedented. This was Russia’s twelfth veto to protect its Syrian allies against UN intervention since the outbreak of the Syrian civil war over seven years ago. In 2017 alone Russia exercised its veto five times to prevent the adoption of resolutions on the conflict in Syria (on one occasion, China joined Russia in vetoing a proposed resolution). The only other veto used in 2017 was cast by the US when it prevented the adoption of a draft resolution that challenged America’s recognition of Jerusalem as the capital of Israel.

In a thoughtful piece recently posted on Opinio Juris, Professor Jennifer Trahan argued that the Russian veto was “illegal” and “illegitimate.” She also suggested that the repeated use of the veto by Russia could make it “complicit in facilitating the commission of atrocity crimes.” In this post, I will be focusing on the former claim regarding the legality of the Russian vetoes. Before proceeding, however, I should note that I seriously doubt that a vote or veto on the Security Council could constitute complicity in the commission of an atrocity crime as the concept is understood in the law of state responsibility or in international criminal law. (See generally: Miles Jackson, Complicity in International Law)

Turning now to the question of the legality of Russia’s vetoes, let me put it succinctly: Russia’s veto on April 10, and its previous eleven vetoes on draft resolutions relating to Syria, were lawful. In fact, each of the 203 vetoes (for the full list: see here) cast by the five Permanent Members of the UN Security Council since the veto was first exercised by the Soviet Union on February 16, 1946, were lawful.

To explain my position I’m going to identify and engage with the arguments that Professor Trahan put forth to support her claim that the Russian veto was unlawful:

First: Professor Trahan writes: “When the veto was drafted into the UN Charter, it was to guarantee unanimity of action by the permanent members as to the use of force.”

That is not exactly true. The purpose of the veto was not to “guarantee unanimity of action by the permanent members.” Rather, the veto was intended as a guarantee to the Permanent Members that the United Nations, acting through the Security Council, would not threaten their security or vital interests.

The experience of the League of Nations and its failure to prevent World War II were probably the single most influential factors in shaping the thinking of the founders of the UN as they designed the structure of the new organization and determined its functions, powers, and prerogatives. The creators of the UN assumed that the principal reason for the demise of the League of Nations was the fact that the Great Powers of that era either never joined the League, as in the case of the US, or were expelled from it, as in the case of the Soviet Union. Therefore, it was agreed early on among the UN’s founders, namely: Franklin Roosevelt, Joseph Stalin, and Winston Churchill, that the success of the future international organization that was to be called the United Nations (which was the name of the military alliance led by the US, the USSR, and Britain that defeated the Axis in World War II) hinged on ensuring that the most powerful states in the international system joined and remained part of the UN. The price to be paid to ensure that these powerful states consented to joining the UN and staying within its ranks was to provide assurances to these countries that the UN would never threaten their national security or their vital interests.

The assurances that were agreed and written into the UN Charter were the permanent membership of those states on the Security Council and their right to veto any resolution that they considered detrimental to their interests. These assurances, especially the veto, were non-negotiable prerequisites for the future Permanent Members, especially the US and the USSR, to join the UN. Indeed, at the San Francisco conference during which the UN Charter was negotiated, Tom Connally, a US Senator from Texas who was a member of the US delegation, told the delegates opposed to the veto in characteristically Texan bluntness that if they “killed the veto” they would also “kill the Charter.”

In addition to seeking to avoid the fate of the League of Nations, the structure and powers of the Security Council and the veto that was granted to its Permanent Members reflect a particular vision that was held by the creators of the UN regarding the nature of the international system and the prerequisites of maintaining world order. Having endured two world wars in their lifetimes, the UN’s founders assumed that the primary threat to international peace and security was conflict between the Great Powers. Other conflicts or crises may cause serious tensions and even lead to armed confrontations. Nonetheless, given their military prowess and their global political influence, it was assumed that preventing Great Power war should be the principal objective of the UN. Accordingly, the Security Council was designed as a forum to facilitate regular communications and consultations between the Great Powers. This, it was hoped, would contribute to maintaining the peaceful coexistence of those states.

That was, and remains, the logic underlying the veto and the architecture of the Security Council. That is why, as I’ve argued in a recent essay, it is a mistake to call the Security Council a collective security body. If anything, the Security Council was, and remains, a Great Power Concert akin to the Concert of Europe. It is a directorate composed of Great Powers that was intended to provide an institutional mechanism for those states to jointly oversee the operation of the international system.

Second: Professor Trahan suggests that the Russian veto represents an abuse of power. She writes: “It is time to recognize that the veto power is being abused in a way never anticipated when the Charter was drafted.” She also claims that the veto “had absolutely nothing to do with blocking investigations and/or prosecution of atrocity crimes.”

Again, I respectfully disagree. Russia, and the other Permanent Members, have exercised the veto exactly as anticipated when the UN Charter was negotiated. This is patently apparent from a careful perusal of the Charter’s travaux préparatoires. Unsurprisingly, the veto was the most controversial aspect of the UN Charter when it was being negotiated in San Francisco. Many delegations expressed misgivings about extending such a prerogative to the Permanent Members and worried about the potential for its abuse. Therefore, led by Australia’s Foreign Minister Herbert Evatt, the future UN Member States submitted a questionnaire to the future Permanent Members to invite them to clarify the limitations on the veto and the situations in which it would and would not be exercised.

In response, the future Permanent Members submitted a joint statement that revealed that the veto was designed to be a virtually limitless power to prevent the Security Council from taking any action that a Permanent Member considered threatening to its vital interests. The only notable restrictions on the veto were: (1) a Permanent Member may not prevent another UN Member State from bringing a matter to the Security Council’s attention, and (2) a Permanent Member that is a party to a dispute that is being considered by the Security Council is required to abstain from the vote on resolutions adopted under Chapter VI of the UN Charter. The rationale for these minimal limitations on the veto is encapsulated in what is probably the most important paragraph of the joint statement the future Permanent Members prepared in response to the questionnaire submitted by the other negotiating parties at the San Francisco conference. They said:

decisions and actions by the Security Council may well have major political consequences and may even initiate a chain of events which might, in the end, require the Council under its responsibilities to invoke measures of enforcement . . . This chain of events begins when the Council decides to make an investigation, or determines that the time has come to call upon states to settle their differences, or makes recommendations to the parties. It is to such decisions and actions that unanimity of the permanent members [i.e. the veto] applies

In other words, even non-forcible measures such as calling on belligerents to agree to a cease fire or condemning the use of force by a state, or even the simplest diplomatic censure, or, as in the case of Syria, calling for an investigation of allegations of mass crimes were all considered measures that could be vetoed by a Permanent Member. The theory was that, while individually those measures may seem minimally invasive or politically benign, they could “initiate a chain of events” that might ultimately threaten the security or interests of the Permanent Members.

The delegates in San Francisco immediately realized the implications of the veto. As one delegate stated: the veto made it “impossible for the Security Council to determine the existence of a threat to the peace or act of aggression by one of the Permanent Members.” Moreover, because the Great Powers could define the scope and nature of their vital interests as they pleased, it was recognized that they could freely extend their immunity from Security Council action to their allies. Indeed, the tragic irony of history is that while the UN Charter was being negotiated in 1945, Syria provided a preview of how the future Security Council would operate. Seeking to reestablish itself as a colonial power after its liberation from Nazi occupation, France was executing a brutal intervention in Syria to quell an uprising that was demanding independence from France. This intervention included aerial bombardment of Syrian cities, including Damascus, and which caused mass civilian casualties. Referring to this French aggression, the Egyptian delegate warned that “France would have been able to exercise her right of veto, had the Security Council been in existence and had France occupied a permanent seat. France could have prevented the application of any enforcement measures to stop this action.” In short, the impact of the veto and the way in which it would operate were clearly recognized and fully anticipated even before the text of the UN Charter was finalized and adopted.

Applied to the Syrian context and viewed from Moscow’s perspective, it is not politically unreasonable for Russia to expect that an investigation that could potentially attribute a chemical attack to the Syrian regime might lead to calls to create mechanisms to hold the leaders of the Syrian regime accountable for mass atrocities. These are developments that could result in a “chain of events” that could ultimately undermine Russian strategic interests in Syria and the region.

This, of course, is a tragic and inhumane outcome. I agree with Professor Trahan that it is “cold comfort to the victims.” But the harsh reality is that, viewed from an historical perspective, the Security Council’s inaction on Syria is utterly unremarkable. The Security Council is behaving according to the terms of the deal that was made in 1945. Pursuant to this deal, the Great Powers agreed to join the UN in return for an assurance that their vital interests would be protected. The price, of course, is that since the creation of the UN millions of human beings have been victimized, murderous dictators and warmongers, such as Bashar Al-Assad, have escaped accountability, and numerous countries and entire societies have suffered egregious violations of international law in places such as Hungary (1956), Egypt (1956), Czechoslovakia (1968), Afghanistan (1978-1989), Iran (1980-1988), Iraq (2003), Palestine (since 1948), etc.

That is why I believe that in dealing with the Syrian civil war, the Security Council operated exactly as it was intended to function. It prioritized the strategic interests of a Great Power – Russia – over the human costs of war. This is because the Security Council is not a global law enforcer. It is not an international 911 dispatcher. Nor is it a collective security mechanism that guarantees its members protection against aggression. The Security Council cannot, as Professor Trahan suggests, “reign in its own permanent members.” If anything, the Council is beholden to the wills and whims of its Permanent Members. This is because the Council is a Great Power Concert designed to facilitate Great Power relations and preserve Great Power peace. That is the Faustian pact at the heart of the UN Charter; a pact that has not been revised since 1945. (For more on this, see my Article titled: Am I My Brother’s Keeper? The Reality, Tragedy, and Future of Collective Security)

Third: Professor Trahan argues that the Russian veto is “at odds with other bodies of international law (such as the highest level jus cogens norms).”

Regretfully, I disagree. The prohibitions on genocide, war crimes, and crimes against humanity have undoubtedly attainted the status of jus cogens rules. These rules, however, are peremptory substantive prohibitions. That means that all states are under a jus cogens obligation not to commit genocide, war crimes, or crimes against humanity, whether on their own territory or on the territory of another state. Moreover, pursuant to this obligation, all states are required to ensure that those crimes are not committed either by non-state actors on their own territory or by non-state actors acting under their direction and control on the territory of another state.

However, there are no procedural jus cogens rules relating to the enforcement of these substantive prohibitions. In other words, while all states are under an obligation not to commit those crimes, either directly through their own agents or indirectly through non-state actors, states are not under a jus cogens obligation to prevent the perpetration of these atrocities when committed by another state on its own territory or on the territory of a third state.

This distinction between substantive and procedural obligations was at the core of the reasoning of the International Court of Justice in the Arrest Warrant Case and in the Case Concerning the Jurisdictional Immunities of the State. While both these cases related to the question of immunities, the logic underlying the distinction between substantive and procedural rules can be extended and applied to this discussion of the legality of the Russian veto. The fact that the prohibitions on atrocity crimes, such as war crimes and crimes against humanity, have attained the status of jus cogens, has not led to the development of a corollary jus cogens obligation to prevent the perpetration of those crimes when committed elsewhere. Therefore, while Russia, the other Permanent Members of the Security Council, and indeed the entire UN membership, are bound by the substantive jus cogens prohibitions on crimes such as genocide, war crimes, and crimes against humanity, these states are not under a jus cogens obligation to actively prevent the perpetration of those crimes. Moreover, it would stretch the instruments of treaty interpretation to read anything in the UN Charter as generating any such an obligation, especially given the track record of the Security Council and the practice of its Permanent Members.

As a normative matter or as de lege ferenda, one definitely hopes that international law would develop a jus cogens rule requiring states to prevent the perpetration of mass atrocities. However, such a rule definitely does not exist as lex lata. It is important to note, however, that a Russian veto in the Security Council does not affect the existing treaty-based grounds for asserting jurisdiction to prosecute or extradite alleged perpetrators of international crimes, in Syria or elsewhere. Regardless of whether the Security Council chooses to investigate the atrocities committed by the state and non-state belligerents in Syria, states parties to treaties such as the Convention Against Torture have an obligation to prosecute or extradite perpetrators of the crimes prohibited pursuant to those treaties.

Conclusion:

Let me make one thing clear. The Syrian civil war and the human suffering it has wrought is a blight on the conscience of humanity. It is a tragic and heartbreaking situation. An impartial investigation into the crimes committed by all belligerents, both local and foreign, must be undertaken. The role of foreign states in funding and fueling the conflict in Syria also deserves to be fully examined, documented, and revealed. Moreover, the crimes committed by the Assad dynasty over decades of dictatorial rule must be investigated. Nothing short of a comprehensive commission of inquiry followed by the appropriate accountability measures will suffice to begin the process of post-conflict justice and reconciliation and to achieve a sustainable peace in Syria.

Furthermore, my objective is not to defend Russia or to engage in an apology for power politics. Rather, my purpose is to clarify that criticism directed at institutions such as the Security Council or practices such as the veto are misplaced and reflect a misunderstanding of the nature of that institution. The causes of humanity and the vindication of human rights will gain little by ignoring or misunderstanding the realities of power. In fact, any realistic solution to the Syrian crisis and any chance for holding those responsible for the atrocities committed in that conflict will depend on taking the strategic interests of all Great Powers and regional players into consideration. Any other approach risks becoming a futile exercise of utopian thinking that is unmoored from the harsh political reality in which international law operates.

Roundtable on the Siege of Eastern Ghouta

by Kevin Jon Heller

I had the pleasure of participating yesterday in a superb — and long! — panel on the 2013 siege of Eastern Ghouta. The panel discussed the facts, the law, and the politics of the siege. I was joined by Hussam Alkatlaby, the Executive Director of the Syrian Violations Documentation CentreJoost Hiltermann, programme director for Middle East & North Africa at the International Crisis Group; and Robin Peeters, the Syria Policy Officer in the Dutch Ministry of Foreign Affairs.

You can watch a recording of the event on the University of Amsterdam website here.

The panel was sponsored by the War Reparations Centre at the Amsterdam Centre for International Law (ACIL); the Amsterdam Students Association of International Law; and the Syria Legal Network.

70 Years of the International Law Commission: Drawing a Balance for the Future

by Christiane Ahlborn and Bart Smit Duijzentkunst

[Christiane Ahlborn and Bart Smit Duijzentkunst are Associate Legal Officers at the Codification Division of the United Nations Office of Legal Affairs in New YorkThis post, and its sister post on EJIL:Talk!, mark the start of the seventieth session of the International Law Commission. Under the theme “70 years of the International Law Commission: Drawing a Balance for the Future”, commemorative events will be held on 21 May in New York and on 5-6 July in Geneva. In these two posts, Christiane Ahlborn and Bart Smit Duijzentkunst of the Codification Division of the United Nations Office of Legal Affairs, which serves as the secretariat of the Commission, place the role of the Commission in a historical context and discuss its promises and challenges moving forward.

This week the International Law Commission has started its seventieth session in New York. As we discussed on EJIL:Talk!, the Commission stands in the long tradition of a broader codification movement, which has pushed the development of international throughout the 19th and 20th centuries. But what is the role of the Commission today, and what will its future look like? These questions will be discussed during different commemorative events in New York and Geneva this year. Here are the five main themes that will be the focus of the debate.

  1. The Commission and its impact

The Commission has had a considerable impact on the development of international law, and on peaceful international relations more generally. From the 1961 and 1963 Vienna Conventions on Diplomatic and Consular Relations, to the 1969 Vienna Convention on the Law of Treaties and the 1998 Rome Statute of the International Criminal Court, many treaties that form the foundation of the contemporary international legal order have their origins in the work of the Commission.

Seventy years of practice has demonstrated that the Commission’s authority extends beyond the conventions it has instigated. For example, the 2001 articles on State responsibility for internationally wrongful acts remain uncodified, yet they are regularly cited and discussed in the decisions of and submissions to international courts, tribunals and other bodies, as well as in scholarship. “What is the status of the articles on State responsibility?” remains a popular query at Jessup competitions, one that has been answered in a variety of ways. Some argue that, in light of Article 38, paragraph 3(d) of the ICJ Statute, the references to the Commission’s work in judicial decisions constitute a subsidiary means for the determination of international law. Others maintain that the Commission could be considered as a “highly qualified publicist”. In addition, the outcomes of the Commission’s work often reflect customary international law.

Nonetheless, in recent years no outcome of the Commission’s work has been taken up for codification in a multilateral conference. This begs the question whether the Commission should rethink its role in the progressive development and codification of international law in the future. In fact, the Commission has already enlarged its portfolio of different work outcomes. While some projects still proceed on the basis of ‘draft articles’ (e.g. the draft articles on crimes against humanity), others are formulated in terms to guidelines (e.g. the draft guidelines on provisional application of treaties) or conclusions (e.g. the draft conclusions on subsequent agreements and subsequent practice).

  1. The working methods of the Commission

The Commission functions like a legislative drafting body. The topics on its agenda are typically assigned to a Special Rapporteur, who leads the Commission’s research, proposes texts for adoption and drafts related commentaries. The Commission debates the reports of its Special Rapporteurs in plenary and refines texts in the Drafting Committee, until they are ready for adoption. It sends all draft instruments for comments and observations to governments and possibly other institutions (“first reading”). After considering the replies, the Commission submits to the General Assembly a final text with commentaries (“second reading”), together with a recommendation for further action.

This process can produce swift results, but it may also take decades. For example, in 1972 the Commission needed only one session to adopt the articles on the prevention and punishment of crimes against diplomatic agents and other internationally protected persons. On the other hand, it took the Commission about fifty years and five Special Rapporteurs to complete, in 2001, the final set of the articles on State responsibility for internationally wrongful acts.

There are several reasons why the Commission may be less agile than a domestic legislator: it only meets part-time and typically adopts outcomes by consensus, rather than by vote. Still, given the more diversified nature of the outcomes of the Commission’s work, and changing practical needs of States, international organizations and other stakeholders interested in the Commission’s work, should the Commission revise its working methods? The Commission has continuously adapted its methods of work to face new challenges, and its 70th anniversary might offer another opportunity to suggest revisions.

  1. The function of the Commission: How much identifying existing law, how much proposing new law?

The Commission is mandated to promote the “progressive development of international law and its codification”. Article 15 of the Commission’s Statute defines progressive development as “the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States” and codification as “the more precise formulation and systematization of rules of international law in fields where there already has been extensive State practice, precedent and doctrine.” In practice, most of the projects of the Commission have involved both aspects of its mandate and the Commission is often hesitant to indicate on which process it relies in specific cases.

Despite the Commission’s reluctance to draw the distinction, the tension between progressive development and codification continues to be the subject of debate in both scholarship and practice. This raises the question whether the distinction between progressive development and codification of international law should be drawn more explicitly, if feasible at all. Is it easier to make the distinction for some topics than for others? And should the Commission emphasize the consolidation of existing law, or should it emphasize the development of new law?

  1. The changing landscape of international law

At its first session, in 1949, the Commission reviewed, on the basis of the survey of international law prepared by the Secretariat, 25 topics for possible inclusion in a list of topics for study. Following its consideration of the matter, the Commission drew up a provisional list of 14 topics selected for codification. With the exception of “Recognition of States and Governments” and “Jurisdiction with regard to crimes committed outside national territory”, the Commission has directly or indirectly considered all of these topics (see the analytical guide to the work of the Commission for an overview of all topics).

The world of international law today is quite different than that of 1949, in part thanks to the Commission’s codification efforts. During the past 70 years, the Commission – with the help of its Secretariat – has kept abreast of on-going developments in international law. Yet like all of us, the Commission faces rapid changes in international relations and in technological capabilities, often requiring novel approaches and scientific expertise. New domains – cyberspace, the polar regions, maritime areas beyond national jurisdiction – and new actors – international organizations, individuals, or corporations – challenge the Commission to constantly rethink its priorities. The Commission has demonstrated its awareness of contemporary challenges, for example by drafting articles on the law of transboundary aquifers, by taking up the topic “Protection of the atmosphere”, and by adding the topic of “Protection of personal data in transborder flow of information” to its long-term programme of work. Participants to the commemorative events for the Commission’s 70th anniversary will further consider how the changing landscape of international law affects the Commission’s substantive work going forward.

  1. The authority and the membership of the Commission in the future

The authority of the Commission depends on various factors, including its membership and its status as a subsidiary organ of the General Assembly. Since its establishment, the membership of the Commission has been enlarged from 15 in 1949 to 34 members at present. The members are elected, in their personal capacity, by the General Assembly for a five-year term, with due consideration to equitable representation of the five regional groups at the United Nations. The equitable regional representation distinguishes the Commission from other codification bodies and ensures that the Commission incorporates different legal traditions and perspectives. Candidates for membership are drawn from the various segments of the international legal community, such as academia, the diplomatic corps, government ministries and international organizations. As the members typically serve in other international law-related professions, the Commission remains in close touch with the realities of international life.

Nonetheless, the Commission faces some challenges with regard to its composition. Perhaps most prominent is the severe underrepresentation of women in its membership. The number of women on the current Commission is four – twice as many as in the previous quinquennium, but still less than 12 per cent of its total membership. In 70 years, the Commission has had only seven female members and one woman as its Chair (Ms. (now Judge) Hanqin Xue in 2010). As the nomination of candidates lies with United Nations Member States, it is for the nominating States, the General Assembly and the Commission together to improve the gender balance among its ranks. Other issues that might be considered during the commemorative events are how the Commission could enhance its relationship with the General Assembly, in particular its Sixth (Legal) Committee; and how the different legal traditions, regional origins, and professions of its members influence its work.