17 Feb Increasing the Odds for Jockeys Riding Three-Legged Horses: A Way to Strengthen the Effectiveness of the Elected Members on the UN Security Council
[Andras Vamos-Goldman is a former Canadian diplomat, including serving as the coordinator of Canada’s UN Security Council political team. He is currently a Visiting Senior Fellow and Adjunct Professor at the NYU School of Professional Studies (NYU SPS) Center for Global Affairs.]
The Challenge to Overcome
Dispensing with “diplomatic-speak”, elected members on the United Nations (UN) Security Council (Council) are like jockeys forced to race on three-legged horses. Compared to the five permanent members, they operate with both practical and rules-based disadvantages. Just consider: the five permanent members have vastly superior institutional knowledge from never being off the Council. They are consulted first (unofficially, of course) by the UN system, especially the Office of the Secretary-General). They can input into the crafting of reports, especially those intended for the Council. They either hold (or direct) the pen that drafts the Council’s actions. Unlike any other UN member state, they each have their own suite of offices in the UN Secretariat building. And pursuant to Article 27(3) of the UN Charter, their negative votes block any action by the Council on substantive matters, no matter how much support this action has from other Council members. Most often, the mere threat of a veto is enough to discourage, or derail action by other Council members. Permanent members are jockeys racing four-legged horses.
By comparison, most UN member states stand for election to the Council once every decade or two. This means a lack of historical memory, and inability to train staff properly to make the most of these rare opportunities. Elected members are mostly consulted only once permanent members have had time to see, consider, internally discuss, and have input on issues. This means that they are always many steps behind. Unless they can work together with other Council members, their individual positions or votes can only have limited effect. Much like jockeys riding three-legged horses.
This vast disparity between elected and permanent members contributes greatly to the Council’s ineffectiveness. It is especially true in times of polarization, such as during the Cold War, and when the stability of power balances is disrupted, such as during the Trump Administration years. Yet the Council has demonstrated the ability to fulfil its collective security role. Most examples come from the optimistic decade and a half that followed the fall of the Berlin Wall. But a thorough look at international law reveals that simple adherence to existing legal norms would also result in more effective Council action, especially in situations of atrocity crimes.
Our collective security decision-making architecture is centred on the UN Security Council. The veto power for permanent members was, in large part, meant to provide each original “great power” with an alternate to, and control over decisions on the use of force, especially in situations where they considered their “vital interests” to be involved. This arrangement has helped to prevent the use of force directly between “great powers”, avoiding another World War. Yet the Council has never developed into a vehicle for real collective security decision-making. While it can be argued that this was not meant to be easy – it was also not intended to be a hollow mechanism.
Attempts at reforming the Council have been ongoing for decades without success, in spite Germany, Japan, India, Brazil, Nigeria and South Africa forcefully insisting that they have as much right to permanent membership in today’s world, as do France and the UK. Realistically, however, permanent members are not inclined to open up membership in the most exclusive club in the world. They are even less likely to share the veto power that goes with that membership. There have also been many initiatives and call for voluntary veto restraint, going back to the early days of the Cold War. The very young 21st century has already seen the “Responsibility to Protect” (R2P), the “S5”, the “Accountability, Cohesion and Transparency (ACT) Code of Conduct” and the “French-Mexican” initiatives. In spite of very broad support by UN member states, China, Russia and the USA have refused to join. Nor is it likely that they would do so without a compelling reason. One such compelling reason may now be at hand.
Existing International Law Limits to the Veto
States and other members of the international community have long protested veto use that prevented the Council from taking action in the face or atrocity crimes. In: Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes (Cambridge University Press), Professor Jennifer Trahan of New York University’s Center for Global Affairs examines veto use in such situations and identifies three independent legal limits – or constraints – to the use of the veto power in the face of genocide, crimes against humanity or war crimes. In simplified summary:
- The veto power derives from Article 27(3) of the UN Charter, which is subsidiary to jus cogens norms, which deal with matters of the greatest concern, such as the prohibition of genocide, crimes against humanity and war crimes. Jus cogens norms receive the highest level of protection, with no derogations permitted. Consequently, a veto that permits the commission or continuation of the violation of jus cogens norms would be illegal (ultra vires). This constraint applies equally to states acting individually, as well as collectively as members of the Council.
- Article 24(2) the Charter limits the Council to act “in accordance with” the “Purposes and Principles” of the United Nations, which are found in Articles 1 and 2. These include respecting “principles of international law”; “cooperation in solving international problems of a … humanitarian character”; and acting “in good faith”. Thus the Council – itself a creation of the UN Charter – has no power to act beyond the confines provided it by the Charter. Consequently, when permanent member(s), use or threaten to use the veto power to force the Council to act contrary to the “Purposes and Principles” of the United Nations, that action is ultra vires.
- Most States, and all permanent members, have other treaty obligations, such as those under the Genocide Convention, and the 1949 Geneva Conventions. Permanent members do not cease to be bound by their other treaty obligations because of their status on the Security Council. Thus vetoing or threatening to veto in the face of, or with a serious risk of genocide violate the obligation to “prevent” genocide in the Genocide Convention. Those that veto or threaten to veto in the face of at least “grave breaches” and Common Article 3 violations act in dereliction of the obligation to “ensure respect” for the Geneva Conventions.
Potential for evolution
It would be naïve to assume that permanent members would openly embrace these arguments. The promise that a more effective Council could reduce some of the cycles of recurring violence around the world, does not appear to lie within the short-term horizon of most of today’s decision makers. Apparently neither are advantages like slowing the need for ever increasing humanitarian assistance; reducing migratory pressures of people being forced to become refugees by on-going conflicts – which may also help ease growing global xenophobia; and demonstrate that our rules-based system can work, thus reducing opportunities for dictators to seize and hold onto power.
Happily, there may be another way for the Council to be more effective. Based on the widespread support that “voluntary veto restraint” initiatives enjoy (nearly two-thirds of UN Member States support the Code of Conduct initiative); the numerous statements of condemnation of indiscriminate veto use (see Trahan article, footnote 136); and with most of the international community being on the record as favouring or at least willing to accept restrained veto use when atrocity crimes can be prevented, there can be little doubt that supportive legal arguments will find fertile ground. In the long-term, the international community accepting these legal views will result in a new paradigm – that the use of the veto to block Council action to prevent or stop atrocity crimes, is ultra vires.
It is certain that permanent members will exert counter-pressure on states, the UN, and any civil society organization that becomes too vocal on this issue. Yet history shows that stonewalling and maintaining pressure over a long period of time against the majority of the international community, on any single issue, is not cost-efficient. It is at least possible, therefore, that permanent members may consider preempting or derailing the formation of such a globally accepted legal view. One way would be through voluntary veto restraint.
At first glance, this seems like a slim possibility. There are, however, several tangible benefits that may attract permanent members towards this option. Permanent members would not have to concede on their belief in an unbridled right to veto use. Voluntarily accepting veto restraint would also obviate (or lift) pressure from the international community on veto use. And a functioning Council would not only lead to the collective security gains mentioned earlier, it would also improve the very negative global public view of the utility of the Security Council and the UN, without which permanent members would not have their “veto superpower”.
Opportunity for elected Council members
These circumstances provide an additional opportunity for UN member states when elected to the Council. If the ten elected Council members work together to ensure that the nine positive votes needed for the passage of a resolution are there, any time the Council is in a position to prevent or stop atrocities, they will be putting any permanent member contemplating a veto in the position of contravening international law. Having the required number of votes also takes away the argument that “the Council was otherwise undecided”. Elected members would not have to rely only themselves – there would likely be some permanent member(s) siding with taking action. Probably most importantly, working together in this way would diminish the “veto threat”, which in its many subtle forms is applied to discourage elected members from even considering coming together and pursuing Council action. The Council working in this way would make clear that it is not our system of collective security that is ineffective. It is made ineffective when permanent members overstep their privileges under international law.
Practically speaking, such collective action would require some changes in how elected members approach working on the Council. Departing and incoming elected members could collaborate more closely, and elected members could make greater use of functional or regional relationships. These would help to reduce the knowledge and procedural advantages of permanent members. Adequately staffing Council delegations would allow elected members to have enough capacity for both the Council’s daily work, as well as managing their assigned subsidiary organs. Given that many smaller states have resource constraints to have such capacity, the creation of a pool of funds for this use, administered by the Security Council Secretariat, would help to even the playing-field.
Finally, the argument that elected members would be deterred from such cooperation because of concern over how it may affect their bilateral relations with permanent members is overstated. With the United States re-engaging in multilateral affairs, a power balance may be restored on the Council, allowing elected members to leverage some “protection” from one or more permanent members, if threatened by another. There is also both safety and power in numbers. With at least nine members having to act together, the cost of putting bilateral pressure on nine countries (which may include permanent members) may often be higher than the value the veto would achieve. This is especially so in the many instances when the veto is not used to protect a permanent member’s vital interest, but to shield some wayward ally.
Elected members taking the initiative to work better together, thereby enhancing the chances of Council action in situations of atrocity crimes, would also constantly reinforce the interpretation of existing international law limits to the veto. This would relentlessly apply pressure on permanent members, hopefully pushing them towards voluntary restraint as a logical alternative. If this could lead to breaking at least some of the Council’s deadlocks, it would bring us closer to the notion of collective security envisaged in the Charter. Giving us hope that there is a rules based system underlying international peace and security.
It is amazing what a shared “fourth-leg” or two can do to increase the odds of a bunch of jockeys forced to race on three-legged horses.