09 May A Brief Response to Kevin Heller’s Comment About My Post
[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.