03 Dec UNSC Veto Power Symposium: Reflections on Trahan’s Book
[Roger Clark is the Board of Governors Professor of Law at Rutgers Law School; he also represented Samoa in the negotiations on the International Criminal Court.]
Jennifer Trahan’s new book, Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes (CUP 2020) is, I believe, destined to be one of the most influential of the many books that are hitting the bookshelves in celebration of the seventy-fifth anniversary of the creation of the United Nations.
The opening word of the title, Existing, captures the essence of her thesis. Whatever may have been the legal position about lawless use of the veto in 1945, the law has now caught up with the P5. San Francisco 1945 was a constitutional moment akin to Philadelphia 1787. Whatever the originalists say, constitutions evolve. They evolve both in terms of their internal logic and, as Oliver Wendell Holmes would say, experience. Experience with the veto, often cynically cast, which Professor Trahan documents in meticulous detail in respect of Syria, demands that we face another “never again” moment. The building blocks for that moment have been slowly crafted, in Professor Trahan’s analysis, in three areas of the law which have converged on the veto, separately and in tandem. Each of these could perhaps have been anticipated in 1945, but our legal understandings of peremptory norms or jus cogens, the Purposes and Principles of the United Nations, and various treaty and customary obligations to take action against serious violations of human rights and humanitarian law, have all undergone significant development since then. Is it now time for our understanding of the veto in the Charter to match these developments?
Peremptory norms, while they have their origin in doctrine in Roman Law and other legal systems that there are some basic depredations that are simply unacceptable in any legal system; they are unconscionable; they are contra bonos mores;they contravene some deep constitutional principles. The explanations may differ, but the end result is the same; such actions are null and void – and someone, a court, an executive, a lone actor, has an obligation to make sure that they are denounced as null and void. Jus cogens as a term of art to describe how International Law responds to such aberrations was only sporadically in use in academic literature, in judicial and other state practice in 1945. It was to burgeon in the negotiations in the International Law Commission (ILC) and the Diplomatic Conference that led to Article 53 of the Vienna Convention of the Law of Treaties. That it was not a principle confined to treaty law and that it had implications in respect of other areas beyond treaty law became plain in the ILC’s lengthy debates on the Principles of State Responsibility, and those Principles gained further legitimacy in national and international practice (both before and after their formal adoption by the Commission and acknowledgement by the General Assembly). The current project by the ILC on Peremptory norms of general international law (Jus cogens) is icing on the cake. No serious scholars, and few government functionaries, deny the existence of the category of peremptory norms or that the three “atrocity crimes” that are central to Professor Trahan’s argument, genocide, crimes against humanity and war crimes, fit the category.
Purposes and Principles
The Purposes and Principles of the organization were, in 1945, perhaps largely hortatory vessels waiting to be filled in a concrete fashion. Of the same ilk were Articles 55 and 56 of the Charter with their promise to “promote” human rights and fundamental freedoms. But oh, what a transformation to detail that promotion has wrought on those articles and on our understanding of the Charter’s Purposes.
Article I of the Charter includes among its Purposes (capital P) both the maintenance of international peace and security, “in conformity with the principles of justice and international law,” and “the achievement of international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.” Inevitably these two Purposes overlap when atrocity crimes are occurring and the challenge is to achieve both at the same time.
Article 2 of the Charter addresses Principles (capital P). One Principle which is relevant in the present context is the obligation on Members to fulfil their obligations in good faith, a powerful and sometimes neglected principle here in the Charter and in general international law, but highly germane to the exercise of the veto. The other Principle significant to the present story is the infamous Article 2, paragraph 7 which insists that
Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.
This Principle on its face looked in 1945 like a barrier to UN action. By its own terms, however, it could be circumvented by Chapter VII action. It also became apparent early in the life of the organization, that the scope of domestic jurisdiction was shrinking and with it came more opportunities for the organization, and its Members, to become involved. I have in mind, the early insistence that Indonesian independence was not a matter of Dutch domestic jurisdiction and that South Africa’s treatment of its people of Indian origin, and subsequently the whole structure of apartheid could not be brushed aside as “domestic”. With the passage of only a short period of time, the sting of the Principle was removed and the Security Council could act not only under Chapter VII but under other provisions such as Chapter VI. The incantation of “domestic jurisdiction” has long departed as a justification for non-action. Its demise is surely relevant to the Trahan argument.
Professor Trahan’s third argument, based primarily on treaty obligations, is a strong one also. The ICRC has long trumpeted the obligation in the Geneva Conventions to “ensure respect” of the Convention. But the obligation of prevention in the Genocide Convention was, like much of this area, a “sleeper” until the International Court of Justice gave very precise content to the obligations of the Genocide Convention in Bosnia and Herzegovina v. Serbia and Montenegro which I have discussed here. I agree with Professor Trahan that there is a similar, but customary law, obligation to work to prevent crimes against humanity. This customary law obligation is reflected in the preamble to the Rome Statute and in the ILC’s draft Convention on Crimes against Humanity, which I trust will soon find its way in front of a diplomatic conference or the General Assembly.
A few words about the obligation to prevent genocide, as spelled out by the ICJ, will help understand some of the parameters of the obligations of veto-wielding players. As the Court insists, it is deciding only the case of genocide that is before it, but its observations are also transferrable to the context of other (atrocity) crimes, depending on the wording of the particular treaty. Indeed, the Court’s analysis seems especially apt when considering the duty of a State contemplating a veto to protect a friend. In the first place, it is notable that the duty to prevent is distinct from an obligation not to be complicit in genocide, although in some extreme cases a complicity theory may be posited where the Member’s actions actively aid and abet genocide. But that is not the situation in play here. Most importantly, the obligation is one of conduct not of result “in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible.” A Security Council resolution is not guaranteed to do the trick, but that does not mean that supporting an initiative can be avoided. But, “responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide. In this area, the notion of ‘due diligence’ which calls for an assessment in concreto, is of critical importance.” Different States may be able to influence others in different ways. But a veto-possessing Member of the Security Council is in a critical position, in concreto, so to speak, in the situation posited by Professor Trahan; that is to say where there is a majority in support of a resolution and the veto is what stands between the resolution and adoption. Good faith demands a special kind of due diligence in such circumstances.
The Charter Speaks to Individual Members, Including the P5
I have always understood that a constitutional instrument speaks to all of those who function in the organs of the legal person which it creates. Thus, the United States Constitution speaks not only to judges; it speaks also to the President and other members of the Executive; and it speaks to members of the Legislative branch, individually and collectively. Nevertheless, when I participated in a couple of launches of Professor Trahan’s book, I was stunned to encounter some pushback to the proposition that the Charter and general international law speak to individual members of the organization, and notably the P5. I thought that was an absolute no-brainer and, in this instance, one that was taken for granted early in the life of the UN. The drafters of the very first request for an advisory proceedings that came before the current International Court of Justice (in 1948), Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), proceeded on this premise. The question was:
Is a Member of the United Nations which is called upon, in virtue of Article 4 of the Charter, to pronounce itself by its vote, either in the Security Council or in the General Assembly on the admission of a State to membership in the United Nations juridically entitled to make its consent to the admission dependent on conditions not expressly provided by paragraph 1 of the said Article? In particular, can such a Member, while it recognizes the conditions set forth in that provision to be fulfilled by the State concerned, subject its affirmative vote to the additional condition that other States be admitted to membership in the United Nations together with that State?
The Soviet Union was insisting on its power to veto the West’s candidates for admission if the West did not agree to the admission of the Soviet candidates. The majority of the Court answered the question in the manner it was asked, insisting that “[t]o subject an affirmative vote for the admission of an applicant State to the condition that other States be admitted with that State would prevent Members from exercising their judgment in each case with complete liberty within the scope of the prescribed conditions.” While the dissent disagreed about whether a Member could take into account the “condition” referred to in the Question, it answered the question on its own terms, stating what it believed a Member could do. Moreover, the main dissent did insist that a Member does not enjoy “unlimited freedom” in the choice of political considerations, “[i]t must use this power in good faith, in accordance with the Purposes and Principles of the Organization and in such a manner as not to involve any breach of the Charter.” Professor Trahan’s argument relates to a different provision in the Charter and the Admissions Case is no doubt distinguishable. My point here, however, is not whether the majority or the dissent there carried the day on the merits (and indeed, until the famous “package deal” of 1955 when most applicants were admitted, Members continued to act on the basis of the dissent). My point is that the organization thought that the Charter speaks to individual Members. There is no question that those who asked and those who answered thought so. (And incidentally, even the dissent thought that the Purposes and Principles of the Charter were relevant.)
A Final Thought
I add, by way of conclusion, that, while Professor Trahan has made a wise scholarly decision in terms of manageability to confine her analysis to the three atrocity crimes for the present, I hope she will return to how the veto plays out in other areas such as the crime of aggression, torture and institutionalized racial discrimination as manifested in the crime of apartheid. But that is for another project. The logic of her position should lead to similar conclusions when applied to those evils. For the moment, though, I hope that her compelling analysis will be widely taken up by scholars and diplomats. And, if her proposal for an Advisory Opinion takes off, that her arguments will be persuasive for the judges.