Security Council Vetoes Policy Need To Change To Restore UN Effectiveness

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The UN Security Council: An Indispensable Yet Profoundly Problematic Body

By Jennifer Trahan – Professor of International Law & Human Rights at New York University (NYU)

The Ineffectiveness of a Habitually Deadlocked Security Council

The Security Council lies at the heart of the United Nations (UN) system. Under the UN Charter, the Security Council — compromised of the U.S., U.K., France, Russia, and China as permanent members and ten non-permanent members — has primacy regarding the protection of international peace and security. Yet, these powers were almost entirely blocked by the threat and practice of offsetting vetoes during the Cold War. Although the Security Council functioned as designed during the 1990s, today we have echoes of, not exactly Cold War blockage, but a similar paralysis where one of the permanent members often blocks measures that a majority of members support.

While the UN General Assembly has broad powers of debate, its resolutions (except in certain limited areas, such as setting the UN budget) are non-binding. The General Assembly, therefore, can only “consider” measures regarding international peace and security not “mandate” them. Thus, despite the frequent deadlock in the Security Council, it remains an indispensable institution at the heart of the UN system.

How Relevant is the UN Without Enforcement?

If one or more permanent members of the UN Security Council uses its veto power, this prevents the international community from being able to take measures, especially in relation to international peace and security. For example, Russia (sometimes joined by China) cast a dispiriting 16 vetoes against measures designed to mitigate some of the horrors of the war in Syria, including measures designed to try to stop chemical weapons attacks. We see similar paralysis when measures are not even proposed. For example, atrocity crimes committed in Myanmar or against the Uyghurs in China do not even reach the point of a draft resolution given the near-certainty of a Chinese veto. In this way, the existence and threat of the veto can block the Security Council just as effectively as the use of an actual veto.

Thus, the Security Council can be prevented from even the consideration of resolutions designed to stop the commission of atrocity crimes such as genocide, crimes against humanity, and war crimes. This is particularly problematic when a permanent member protects an abusive regime with whom it may be allied or have political or economic ties but does not want to be “on the record” defending them by having to cast a veto or explain its actions in open debate.

Solutions to UN Security Council Paralysis

What such vetoes, and threats of vetoes, do is marginalize the Security Council from being able to effectively carry out its mandate under the UN Charter to maintain international peace and security. They also drive the international community to pursue solutions so that states are at least seen to be doing something in the face of clear, unambiguous atrocity crimes being committed, excused, and tolerated by the veto or veto threat.

The latter occurred, for example, when Russia and China vetoed referral of the situation in Syria to the International Criminal Court (ICC) — the accountability mechanism for core international crimes — despite a ground-swell of support from 65 states co-sponsoring the referral resolution. This put the states supporting the resolution in the untenable position of having focused international and domestic public opinion on their ineffectiveness. The resulting UN General Assembly resolution created the International, Impartial and Independent Mechanism for Syria, known as the “IIIM.” Yet, the IIIM is unable to do more than “collect, consolidate, preserve and analyze evidence” of atrocity crimes and prepare files to facilitate criminal proceedings. A mechanism that must rely on other international or domestic jurisdictions is a far weaker measure than what the Security Council could have done by a referral to the ICC, a court that can conduct prosecutions. A referral to the ICC could also have potentially deterred future would-be perpetrators, something an evidence collecting mechanism cannot do.

Similar tactics were used in creating an evidence-compiling mechanism for Myanmar (also known as the IIMM). This was also a lesser step than creating a tribunal or referring the crimes to the ICC, whereby the suspected genocide against the Rohingya could be prosecuted, because these measures would be blocked by the veto of China. The same dynamics are at play regarding the crimes being committed against the Uyghurs, where China’s presumptive veto would block any referral by the Security Council to the ICC or the creation of a freestanding tribunal. In this way, the veto is doing nothing short of shielding the perpetrators of genocide. Surely this is not how the UN system was designed to operate, nor is it a defensible construction of obligations under international law. The veto does not and should not stand over and above international law.

Challenging the Legality of Vetoes

The international community should not have to create less effective mechanisms simply to get around UN Security Council vetos. A veto that blocks measures to curtail or prevent the commission of genocide, crimes against humanity, or war crimes is, arguably, incompatible with existing international law.

Specifically, it is at odds with: (1) obligations related to jus cogens (the highest body of law, with genocide, crimes against humanity, and war crimes prohibited at that highest level); (2) the requirements of the UN Charter, specifically the UN’s “Purposes and Principles”; and (3) treaty obligations such as those under the Genocide Convention and 1949 Geneva Conventions, which create obligations to prevent crimes, with all permanent members being parties to those treaties.

The practical question is how to get beyond the current practice where only some permanent members (France and the U.K.) endorse voluntary veto restraint. One possibility is for the General Assembly to request an Advisory Opinion from the International Court of Justice (“ICJ”) on a question such as: Does existing international law contain limitations on the use of the veto power by permanent members of the UN Security Council in situations where there is ongoing, or the serious risk of, genocide, crimes against humanity, and/or war crimes?

In addition, states in the UN General Assembly and at other multilateral institutions should continue to speak out about legal limits to the veto and the damage its indiscriminate use causes to international peace and security and to lives concomitantly lost.

Conclusion

The UN Security Council is both indispensable and extremely problematic given the practice of some of its permanent members to indiscriminately block measures that could stop or prevent atrocity crimes. Nearly two-thirds of the UN condemns veto use in the face of atrocity crimes by supporting the “French/Mexican initiative” or the “ACT Code of Conduct.” This includes two permanent members of the Security Council — France and the U.K. While China, Russia, and the United States do not endorse or adhere to voluntary veto restraint, those initiatives remain a powerful expression of the will and understanding of the international community of how the veto is to be used.

It is time to focus the spotlight on veto use in the face of atrocity crimes — including through a legal challenge and nations making the simple statement, whenever the opportunity arises, that the veto must be used in line with UN Charter obligations, as well as other obligations of international law.

This article is part of Divided We Fall’s “Civility Without Borders” series, covering a range of topics fundamental to U.S. foreign policy. Through this series, we ask scholars, journalists, government officials, and activists to discuss the most pressing issues in international affairs. If you want to read more pieces like this, click here.

Jennifer Trahan

Professor of International Law & Human Rights | Website | + posts

Jennifer Trahan is a Clinical Professor at NYU's Center for Global Affairs where she directs the Concentration in International Law and Human Rights, and teaches a variety of courses on International Law.  She is a prolific scholar, having authored scores of law review articles and book chapters including on the International Criminal Court’s crime of aggression.  Her book, “Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes” was published in 2020 by Cambridge University Press.  She holds various positions with the American Branch of the International Law Association and is on the Use of Force Committee of the International Law Association. 

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