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

[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 2^nd point, for example (as I know he disagrees with my 1^st 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.