UNSC Veto Power Symposium: Voluntary Veto Restraint Initiatives as Evidence of the Global Community’s Disapproval of the Use of the Veto Power

[Milena Sterio is The Charles R. Emrick Jr. – Calfee Halter & Griswold Professor of Law at the Cleveland-Marshall College of Law and Co-Coordinator for Global Justice Partnerships at the Public International Law and Policy Group.]

It is my pleasure to contribute this guest post to the Opinio Juris symposium about Professor Jennifer Trahans’s recent book, Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes.  Professor Trahan’s book is a significant contribution to existing literature on the subject of the Security Council and the role that it plays in addressing, and potentially preventing and halting, atrocity crimes.  My post will focus on Chapter 3, Initiatives to Voluntarily Restrain Veto Use as to the Face of Atrocity Crimes, as this chapter presents a thorough discussion of various voluntary initiatives by P5 and other countries to restrain the use of the veto power, a subject which is seldom addressed by other authors.

In Chapter 3, Professor Trahan describes five different initiatives which have already taken place in order to restrain the use of the veto power by the P5 countries.  These initiatives include the responsibility not to veto within R2P, the “S5” initiative, the French/Mexican initiative, the Accountability, Coherence and Transparency (ACT) Code of Conduct, and the proposal of “The Elders.”  In addition, Professor Trahan also discusses a relatively recent U.S. proposal to veto restraint under the Obama Administration.  Professor Trahan argues that these initiatives, “[p]ut together…. pursued from 2001 to the present, represent almost two decades of development, galvanizing the view that there is a significant problem with veto use by permanent members of the Security Council in the face of atrocity crimes – a view now held by close to two-thirds of the Member States of the UN…” (p. 120).  She thus posits the problem of unlimited veto power use by P5 countries as a global concern which necessitates discussion and a different approach – such as the one she proposes in Chapter 4, where she lays out her legal argument about the illegality of veto use in the face of atrocity crimes.  One of the many contributions of Professor Trahan’s book is her comprehensive discussion of these various initiatives: while most of these have been discussed elsewhere, I am not familiar with other books or articles which discuss all six initiatives together as thoroughly, and within the overall subject of the legality of the use of the veto power when faced with atrocity crimes.

Another contribution of Professor Trahan’s book is her nuanced approach.  When discussing the six different initiatives, she is careful to thoroughly describe each and to delve into the technical, legal and political differences among these approaches.  The variations among the different approaches to voluntary veto restraint, as described in Chapter 3,  include: what atrocity crimes are encompassed; whether to require P5 countries to articulate their reasoning for invoking the veto; whether a veto should be permitted if “vital national interests” of the P5 country are invoked; whether the threat of atrocity crimes should also trigger the obligation not to veto; whether a body outside the Security Council should be involved in making the determination that the crimes are occurring; whether a threat of the veto by a P5 country would be encompassed; and whether the initiative would cover all vetoes or only situations where there is already a credible draft resolution before the Security Council (pp. 122-23).  Professor Trahan discusses each of the variations above, allowing the reader to form his or her own opinion as to the best one, while concluding that that the common thread among all of them is a “call for veto restraint in the face of atrocity crimes” (p. 120).  Professor Trahan, as part of her thoughtful and nuanced approach, is also careful to note that these six initiatives do not form part of customary law, and can at best be described as soft law.  “[T]hese initiatives, which call for ‘voluntary’ veto restraint, do not – by their very terms – purpose to create ‘binding’ legal obligations” (p. 121).  Thus, Professor Trahan recognizes the limitations of her own discussion, which in turn contributes to the quality of her legal arguments overall, and in particular, her arguments in Chapter 4.

Finally, a significant contribution of Professor Trahan’s Chapter 3 is in its excellent analysis of the six voluntary restraint initiatives. Professor Trahan’s thorough discussion of the details of each of the six initiatives provides the reader with excellent insight into the differences among the six approaches to voluntary veto restraint.  At the same time, Professor Trahan’s thoughtful analysis allows the reader to discern the commonalities among the various approaches, and to assess the issue of voluntary veto restraint on the whole.  For example, she recognizes “an obvious tension” (p. 138) in the different approaches.  “The broader the initiative is formulated in terms of the crimes it encompasses … the more protective it potentially is of victims of the crimes; this may in turn incentivize states that are not permanent members of the Security Council to join the initiative.  The narrower the formulation and more carve-outs that exist… the more acceptable the initiative may be to permanent members, which increases the likelihood of their joining” (p. 138). Professor Trahan thus links the different approaches to veto restraint by recognizing this common tension, and the different initiative drafters’ concerns when devising their proposed initiatives.  Ultimately, Professor Trahan concludes that the French/Mexican initiative and the ACT Code of Conduct “are significantly helpful in increasing the ‘political cost’ of the veto use in the face of genocide, crimes against humanity, and/or war crimes” (p. 140).  She then convincingly argues that in order to truly change/restrain the use of the veto in the face of atrocity crimes, there appear to be two possibilities.  First, remaining P5 members could be persuaded to join the French/Mexican initiative or the Code of Conduct, so that voluntary veto restraint is agreed to by all Security Council members.  Second, “in light of the possibility that the remaining permanent members will not join either initiative… Chapter 4 suggests a complementary approach: revisiting existing hard law obligations that show there are legal limits (or constraints) on the use of the veto in the face of genocide, crimes against humanity, and/or war crimes based on existing international law.”  (p. 140).  Thus, Chapter 3 provides the perfect set-up for Professor Trahan’s legal arguments, analyzed in Chapter 4, about the legal obligation on P5 states not to use veto power in the face of atrocity crimes.  Chapter 4, although excellent on its own, would be less perfect if it weren’t for Chapter 3. 

In sum, Professor Trahan’s through-provoking book is likely to play an influential role for all those concerned with potential Security Council reform, as well as for everyone interested in atrocity crime prevention.  She addresses a legal issue – whether P5 countries can legally use the veto in the face of atrocity crimes – which has tremendous implications on ongoing and future conflict, and on the lives of all those affected by conflict.  The importance of Professor Trahan’s book is in the linkage which she underscores between the exercise of the veto power and “continuing death tolls on the ground,” and in her passionate argument that all of us must “do our utmost to ensure that UN Charter’s voting provisions are never used in a way that directly or indirectly facilitates or enables the ongoing perpetration of genocide, crimes against humanity, or war crimes” (p. xvii).  One can only hope that leaders of P5 countries read Professor Trahan’s book and begin to question their own decisions to use the veto power in the face of atrocity crimes.