A Brief Response to Kevin Heller’s Comment About My Post

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.

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I think your response further undermines your argument. The fact that an earlier proposal to place restrictions on the use of the veto was withdrawn demonstrates that any “accelerated evolution” in the law in this area has moved it even further away from any “responsibility not to veto”. Second the fact that states (1) are proposing different forms of voluntary restraint and (2) are not claiming that these vetos violate existing law, can only support the claim that existing law does not impose constraints on the veto, or at least the vetos you mention. People generally don’t call for voluntary agreements to do what the law already mandates. If anything, bold but shaky legal arguments about the state of existing seem far more common. Third, any recent shift in collective consciousness that the veto should be subject to restraint is also evidence that there aren’t any restraints today. People don’t argue that things should be the way they currently are. Finally, it is perfectly plausible that China genuinely thinks outside intervention in Syria is a bad idea. Empirical scholarship has shown that outside intervention in civil wars generally prolongs them, leading to greater human suffering. Afghanistan, Iraq, and Libya are… Read more »

Kevin Jon Heller

It is indeed possible that states that support the P5 voluntarily renouncing the veto in the context of atrocity crimes would prefer the P5 be required to renounce it. But Trahan provides no evidence of that fact; she simply cites two documents that make clear the P5 has the right to veto any resolution they oppose. So although I may be indulging in a leap of logic, it is obvious that Trahan’s leap of logic is far greater.

Kevin Jon Heller

I don’t see how I am misstating your argument. Your position is that, as a matter of law, the P5 cannot veto a resolution addressing atrocity crimes. In defense of that position, you cite state support for two documents: the ACT Code of Conduct and the France/Mexico initiative. My point — and this was literally the only point I made in my post — is that neither document supports your position, because neither document challenges the right of the P5 to veto any resolution they want. They each simply advocate voluntary restraint. (Which I completely support.)

It is absolutely correct to count me in the “unlimited right to veto” camp, and I do indeed disagree with your reliance on jus cogens and the supposed basic principles of the Charter to argue otherwise. But I did not address those arguments in my post.

Kevin Jon Heller

PS: The word “renounce” does not appear in my response to you. The only time I used that word was in my comment to this post — and only as a way to describe what the ACT Code of Conduct and the France/Mexico initiative want the P5 to do with regard to their right to veto atrocity resolutions.