06 May Limiting the Veto in the Face of Jus Cogens Violations: Russia’s Latest (Ab)use of the Veto
[Florent Beurret is an LLM Student in Public International Law at the University of Amsterdam and currently an intern at the T.M.C. Asser Instituut.]
No international lawyer was surprised when on 25 February 2022, the day after Russia started its invasion of Ukraine, Russia vetoed a UN Security Council (UNSC) draft resolution supported by 11 UNSC members, which would have ordered Russia to “immediately cease its use of force against Ukraine” and “immediately, completely, and unconditionally withdraw all of its military forces from the territory of Ukraine.” In the past, much commentary has focused on the paralysis of the UNSC due to the fact that the five Permanent Members (P5) have often used their right of veto as found in Article 27 of the UN Charter for their own (political) interests, including when coordinated UNSC action could have ended or prevented mass human rights violations or atrocity crimes. This latest use of the veto by Russia very strongly reconfirms the already-existing proclamations by the international community that the UNSC, through the use and abuse of the veto by P5 members, is failing to fulfil its main responsibility to maintain international peace and security, and more importantly, to protect (potential) victims. However, less attention has been given to the fact that the veto is often being used in specific circumstances involving jus cogens violations, and consequently to the veto’s position vis-à-vis these peremptory norms that enjoy hierarchical superiority compared to all other norms and principles of international law.
There is a consensus among the international community that Russia’s invasion of Ukraine, since it cannot be categorised as self-defence and has not been authorised by the UNSC, constitutes an act of aggression under the commonly used definition adopted in UN General Assembly (UNGA) Resolution 3314 (XXIX):
Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations (…).
The ICC Prosecutor has also opened investigations into alleged crimes against humanity and war crimes committed in Ukraine. The prohibitions of aggression and crimes against humanity, in particular, are generally accepted by national, regional and international courts and tribunals to have jus cogens status. The most important consequences are that, due to their hierarchical superiority, the prohibitions of aggression and crimes against humanity are binding upon all States, even without their expressed consent, and that States cannot derogate from these obligations except when invoking another jus cogens norm, such as the prohibitions of genocide, slavery, racial discrimination and torture, as well as the right to (external) self-determination. In his infamous speech of 23 February, Putin did accuse Ukraine of committing genocide against Russian speaking civilians. However, since there is no proof that such a genocide is taking place, he could not reasonably invoke the jus cogens norm of genocide as a justification to violate the jus cogens prohibitions of aggression and crimes against humanity.
It is highly problematic, and paradoxical to a certain level, that while Russia has violated at least one of the highest hierarchical norms in international law, the prohibition of aggression, it can use its veto power as a Permanent Member of the UNSC to block any appropriate response that could end Russia’s aggression. Is the veto really so absolute that it can be invoked in disregard of peremptory norms of international law? More generally, does the Russian veto exemplify that there is a lack of formal limitations to the veto, resulting in the UNSC failing to fulfil its main responsibility to maintain international peace and justice?
Existing Veto Limits
As scholars such as Heieck and Trahan expertly deliberate in their books on existing veto limits in the face of genocide and other atrocity crimes, it is important to ask ourselves whether legal limits already exist in current international law for the use of the veto by P5 members in their individual capacity as states in situations where the UNSC could attempt to end or prevent (further) jus cogens violations, as well as existing limitations on the UNSC itself.
One could for example consider Article 41(2) of the ILC’s Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA), which holds that no State “shall recognize as lawful a situation created by a serious breach [of a peremptory norm], nor render aid or assistance in maintaining that situation.” The customary nature of the two obligations found in Article 41(2) ARSIWA is supported by international practice, UNSC Resolutions and decisions of the International Court of Justice. When a veto is used during ongoing jus cogens violations, where a draft resolution is in place to attempt resolving the situation, the veto is arguably helping to maintain that status quo. The vetoing P5 member would be considered to “render aid or assistance” to the State responsible for the serious jus cogens violations. While legitimate questions can be raised on whether vetoing a remedy for a jus cogens violation necessarily amounts to “recognizing as lawful” or “rendering aid or assistance” by the veto-casting P5 member, these provisions do install a general obligation on states to do everything in their power, which for the P5 includes the (non-)use of the veto, to end jus cogens violations.
However, since Russia is the one responsible for the jus cogens violation itself and is therefore certainly not rendering aid or assistance to another State, Article 41(1) ARSIWA might be more relevant in this instance. Under this paragraph, States also have a duty to “cooperate to bring to an end through lawful means any serious breach [of an obligation arising under a peremptory norm of general international law].” The individual P5 Member States have a duty to cooperate, and therefore to refrain from using the veto power, to end a situation of a “serious breach” of a peremptory norm. When a threat or breach of peace is determined under Article 39 UN Charter, combined with the UNSC’s responsibility to maintain peace and security under Article 24, P5 Member States have a duty to cooperate through the UNSC to end such a situation. The use of the veto, especially its repeated use resulting in a deadlock, by any of the P5 members, therefore undermines their duty to cooperate.
Additionally, the argument that the P5 needs to refrain from using the veto in the face of jus cogens violations is strengthened by the UNSC’s responsibility to adhere to the UN’s Purposes and Principles found in Articles 1 and 2 of the UN Charter. Article 1 of the UN Charter for example holds that:
“The Purposes of the United Nations are:
1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;” [emphasis added]
As according to Article 24(2), the UNSC “shall act in accordance with the Purposes and Principles of the United Nations,” it must therefore act “in conformity with the principles of justice and international law”, including jus cogens. Since the P5 strongly influences which actions are (not) taken by the UNSC, the use of the veto is unlawful if that veto use results in the UNSC acting inconsistently with the Purposes and Principles of the UN. Critics will argue that the concept of jus cogens was only greatly developed and accepted after the adoption of the UN Charter, while the inclusion of the veto was essential for the establishment of the UN. Nevertheless, following the ‘living instrument’ theory, which holds that treaties evolve over time and should therefore be interpreted in the light of present day conditions, the text of the UN Charter should now be interpreted in line with the present day condition that jus cogens is an accepted category within international law. Thus, the UNSC and the P5 should now act in conformity with jus cogens.
It is clear that international law already provides for specific limitations to the use of the veto in cases of jus cogens violations. However, Russia’s disregard for jus cogens and, more specifically, existing veto limitations, has demonstrated that there is a need for formal implementation of veto limits. While there have been many initiatives from the international community to reshape the UNSC, implement veto limits or even abolish the veto, they have had little chance of succeeding due to the P5 having the right to veto any UN Charter amendment. However, if a large enough majority of States collectively and openly state that current veto limits exist and that Russia has acted with complete disregard to jus cogens through its veto, the political pressure might strengthen the discussions around formally implementing veto limits, or even reshaping the entire veto system as a whole. Just recently, in response to the Russian veto, a resolution by Liechtenstein was adopted which automatically convenes the UNGA after the veto is used by one of the P5, enabling all states to scrutinize and comment on that use of the veto. It remains clear that we should strive towards a UNSC that upholds its responsibility to maintain international peace and security by ending or preventing violations of jus cogens, including when the P5 are responsible for such violations. At the very least, before thinking of formal implementation of veto limits, we owe it to the people of Ukraine to name and shame Russia for its total disregard of international law and its latest (ab)use of the veto.