WHY THE VETO POWER IS NOT UNLIMITED: A RESPONSE TO CRITIQUES OF, AND QUESTIONS ABOUT, EXISTING LEGAL LIMITS TO THE VETO POWER IN THE FACE OF ATROCITY CRIMES.

• Author: Trahan, Jennifer
• Position: The Academy and International Law: A Catalyst for Change and Innovation

1. INTRODUCTION II. SUMMARY OF THE ARGUMENTS III. SUPPORT GENERATED TO DATE IV. CRITIQUES AND QUESTIONS A. The Perspective that the Veto Is Not Legally "Abusable" or Subject to Legal Constraints--that It Is Above, or Not Subject to, the Law 1. Neither U.N. Organs, such as the Security Council, nor Individual Permanent Member States, May Go Beyond the Powers Conferred on Them by the Charter 2. Additionally, the Veto Is Subject to Legal Scrutiny 3. Even if the Veto Is Considered a Precatory or Preliminary Step, It Is Subject to Legal Scrutiny B. Practical Questions Whether the Author's Arguments Apply to All Draft Resolutions in the Face of Atrocity Climes C. Concerns that Even Obtaining a Non-Binding Advisory Opinion Would Not Prevent Abusive Vetoes D. Concerns that Some States, Including the Permanent Members, Could Choose to Politicize the Pursuit of These Legal Arguments E. The Concern over Capacity. Given There Are Already Other "Initiatives" Regarding the Veto F. The Question Why the Author Did Not Try to Define the "Trigger Mechanism" to Determine when Atrocity Crimes Are Occurring G. The Concern that One Cannot Guarantee a Useful Ruling by the ICJ V. CONCLUSION I. INTRODUCTION

   In the book, Existing Legal Limits to the Veto Power in the Face of Atrocity Crimes, (1) the author argues that, when considered within the context of some paramount and competing obligations of the international legal system, veto use by the permanent members of the U.N. Security Council in the face of ongoing, or the serious risk of, genocide, crimes against humanity, or war crimes is of questionable legality. (2)

   Specifically, the book examines the veto power when considering (1) jus cogens, (2) obligations under the U.N. Charter, and (3) obligations under foundational treaties. Indeed, a number of States' representatives, prominent individual thought leaders, and nongovernmental organizations have supported raising these and related arguments in questioning the legality of such veto use. This represents a significant shift in thinking, as, to date, most States have expressed their opposition to veto use in these situations by supporting "voluntary veto restraint." (3) Those initiatives ask the permanent members voluntarily to restrain their veto use an approach that, thus far, and without further inducement, does not appear to be reining in such use.

   In the course of the author's many interactions with States' representatives, reactions were mostly positive, sometimes even enthusiastic. Some interlocutors understandably expressed hesitation, as the legal perspectives on this issue have not had extensive public consideration. Predictably, there were those, especially among the permanent members that have not signed on to any of the voluntary veto restraint initiatives, who were opposed to the author's arguments. This article considers some of these reactions and offers responses to them.

   Comments from States came in the form of a variety of questions as well as some specific critiques. Those of a legal character, or a mixed legal and political character, will be loosely grouped into the following categories:

   * (A) those advocating that the veto power is above all law--or at least when the Security Council acts under Chapter VII--and therefore is not subject to any constraints;

   * (B) a variety of practical questions about the possible wording of a resolution in these circumstances (for instance, whether the author's arguments apply to all resolutions drafted in the face of ongoing, or the serious risk of, (4) genocide, crimes against humanity, or war crimes--or just to those that can garner the support of the minimum nine Security Council members needed for the Security Council to act);

   * (C) concerns that one of the possible routes suggested by the author--a General Assembly request to the International Court of Justice ("ICJ") for an Advisory Opinion on the legality of the use of the veto in the face of genocide, crimes against humanity, or war crimes--would not actually prevent abusive vetoes because it would be non-binding;

   * (D) political hesitations about supporting the public examination and consideration of the legal perspective because of how that might impact on the bilateral relations of a state with a permanent member;

   * (E) concerns over capacity or "initiative fatigue"--given that there are already other "initiatives" regarding the veto;

   * (F) observations that the author has not tried to define the "trigger mechanism" to determine when the crimes are occurring or are at serious risk of occurring, and thereby when legality issues arise; and

   * (G) concerns that a ruling by the ICJ might not actually advance the issue. Of these points, only the first is truly oppositional to the author's arguments, with the remainder more in the category of questions. Each is addressed in turn below.

2. SUMMARY OF THE ARGUMENTS

   While this article will not rearticulate the arguments presented in the author's book, it provides a brief recitation of them. Essentially, the author looks at the use of the veto power (found within Article 27(3) of the U.N. Charter) (5) in relationship to other components of the system of international law. Specifically, the author examines the veto when considering (1) jus cogens, (2) obligations under the U.N. Charter, and (3) obligations under foundational treaties. (6) The arguments may be briefly articulated as follows.

   First, international law can be thought of in terms of a hierarchical structure, with jus cogens norms positioned at the apex of the hierarchy. Jus cogens protections thus sit above the veto power, which is conferred by the U.N. Charter (a treaty). Jus cogens norms receive the highest level of protection in the international legal system in that no derogation is permitted from them except through the creation of a new norm having the same character. (7) The prohibition of genocide, crimes against humanity, and war crimes are all recognized as peremptory norms protected at the level of jus cogens. (8) Because the U.N. is bound to respect jus cogens, its principal peace and security organ, the Security Council, is similarly constrained. (9) All States are additionally constrained to respect jus cogens. (10) It follows, therefore, that the permanent members are thereby also constrained, both as States and as members of the Security Council. Therefore, the actions of the permanent members (including veto use) (1) should be consistent with jus cogens; (2) must not facilitate violations of jus cogens obligations; (11) and (3) must respect the obligation 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]." (12)

   Second, a source of constraint on the veto power is found within the U.N. Charter itself. The Charter grants the Security Council the "primary responsibility for the maintenance of international peace and security." (13) At the same time, it also places limits on the Security Council's power. Pursuant to Article 24(2), the Security Council must act "in accordance with" the "Purposes and Principles" of the U.N. (14) The "Purposes and Principles" in Articles 1 and 2 of the Charter include respecting "principles of justice and international law," "promoting and encouraging respect for human rights," "co-operation in solving international problems of [a] ... humanitarian character," and "good faith." (15) If the Security Council must act according to the U.N.'s "Purposes and Principles," (16) this means that, logically, individual permanent Member States must too. Individual permanent members are also bound by the U.N.'s "Purposes and Principles" because all U.N. Member States are bound (17) and the permanent members are clearly U.N. Member States. Arguably, many of the vetoes being cast do not accord with the U.N.'s "Purposes and Principles," and are closer to an "abuse of right" (abus de droit). (18) A veto that does not accord with the U.N.'s "Purposes and Principles" would be ultra vires of the proper exercise of Security Council power. (19)

   Third, the treaty obligations of the individual permanent Member States, such as those under the Genocide Convention (20) and 1949 Geneva Conventions, (21) to which all permanent members are parties, (22) also constrain the use of the veto in the face of atrocity crimes. The permanent members do not cease to be bound by foundational treaty obligations by virtue of sitting on the Security Council. (23) These treaties impose certain legal obligations, for example, "to prevent" genocide (24) and to "ensure respect for" the 1949 Geneva Conventions in their Common Article l. (25) Any veto that allows the continuing perpetration, or blocks measures to prevent or alleviate the perpetration, of genocide or "grave breaches," (26) or "Common Article 3" (27) war crimes, would run afoul of the obligation to "prevent" genocide, or to "ensure respect for" the 1949 Geneva Conventions. The same arguments would apply to the war crimes enumerated in the Additional Protocols to the Geneva Conventions, to the extent they contain Common Article 1 and to the extent that permanent members are parties to them. (28) It is possible to make similar arguments with respect to crimes against humanity, although they would rest on general obligations of international law, as there is not yet a finalized treaty on crimes against humanity. (29)

   Note that, while the first two arguments consider situations of the permanent members acting beyond their powers (ultra vires), the third argument is different in that it considers when there would be abrogations of treaty obligations and thus international law. (30) A full version of the legal arguments and the extensive authority supporting them may be found in the author's book. (31)

3. SUPPORT GENERATED TO DATE

   There has traditionally been strong opposition to indiscriminate veto use. This has intensified in recent years with...