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

[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.