The Responsibility Not to Veto: A Feasible Solution?
An Examination of the Responsibility Not to Veto of the Permanent Members of the UN Security Council When Addressing Cases of Mass Atrocities
Student: S.J.C. (Simone) van den Brand (12472816) – simonevdbrand1993@gmail.com Supervisor: Prof. dr. T. D. (Terry) Gill
Master’s programme: Public International Law (International and European Law) Date: 27 June 2019
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ABSTRACT
Calls for a restriction of the veto power enjoyed by the permanent members of the UN Security Council have been renewed by the multiple use thereof by China and Russia during the Syrian war. Together with China and Russia, France, the United Kingdom and the United States are the permanent members of the Security Council. They are provided with the veto power, with which they are able to prevent proposed resolutions they do not agree with from being adopted. Various so-called Responsibility Not to Veto (RN2V) initiatives were presented during the last decade. What these initiatives have in common is their demand for abstention by the permanent members from using their veto power in cases of mass atrocities.
This thesis aims at assessing whether a restriction of the veto power is feasible. To this end, it looks at the veto power and the Realpolitik behind the granting thereof to the permanent five, the principle of Responsibility to Protect (R2P), the idea of RN2V and its underlying norms as well as at the influence of the ‘Uniting for Peace’ Resolution and article 103 of the UN Charter. The final feasibility assessment pays particular attention to 1) the perspective of each of the permanent members on a restriction of their veto power and 2) the consequences of a restriction of the veto power for a) the protection of citizens, and, b) the legitimacy of the Security Council.
The analysis shows that a restriction of the veto power is hardly feasible. Taking into account the position of China, Russia and the United States regarding veto restraint, an amendment of the UN Charter, in particular of article 27, paragraph 3, is not likely to be made. An informal agreement among the permanent members not to veto against resolutions in cases of mass atrocity crimes – as proposed by the two RN2V initiatives discussed in the thesis – is, for the same reason, neither likely to be feasible. The analysis further demonstrates the important role of regional organizations in the maintenance of international peace and security.
Key words: UN Security Council; Responsibility to Protect (R2P); RN2V; Uniting for Peace; article 103 UN Charter; regional organizations; jus cogens norms.
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Table of Contents
ABSTRACT………...2
1. Introduction………...4
2. The Veto Power of the Permanent Members of the UN Security Council……….6
2.1. Purpose and Background………..6
2.2. The Veto Power……….6
2.3. The Realpolitik Behind the Veto Power……….8
2.4. The Security Council and Its Institutional Set-up………..…..10
3. Responsibility to Protect……….12
3.1. Purpose and Background………12
3.2. Establishment of R2P………..13
3.3. Sovereignty and R2P………...14
4. The Responsibility Not to Veto………16
4.1. Purpose and Background………16
4.2. Norms and Obligations Underlying RN2V………..17
4.3. Relationship RN2V and R2P………...19
4.4. Uniting for Peace………20
4.5. Article 103 UN Charter………...22
5. Feasibility of RN2V……….25
5.1. Perspective Permanent Members………...25
5.2. Protection of Civilians………27
5.3. Legitimacy of the Security Council……….28
5.4. Overall Assessment……….29
5.5 A Way Forward………33
6. Conclusion………35
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1. Introduction
Since the establishment of the United Nations (UN) in 1945, there have been calls for the abolition or restriction of the veto power granted to the five permanent members of the UN Security Council.1 The calls for restriction of this power, in particular in situations of mass atrocities, have been renewed by the multiple exercise of their veto power by China and Russia in the Syrian war.2 Even though the UN Human Rights Council concluded that attacks were directed at civilians during this war, the Security Council could not reach an agreement on what (military or other) measures had to be taken.3
The Security Council carries the primary responsibility to maintain international peace and security and is charged with the task to determine the existence of acts of aggression and threats to or breaches of peace.4 It can make recommendations or take decisions regarding measures to be taken for the purpose of maintaining international peace and security. These decisions have to be carried out by the members of the UN.5 From this, as well as from the 2005 World Summit Outcome Document6 (WSOD), can be inferred that the Security Council is the right authority to make decisions in Responsibility to Protect (R2P) situations.7 The Security Council has the responsibility to ensure the protection of populations against the R2P mass atrocities: genocide, war crimes, crimes against humanity and acts of ethnic cleansing.8 When states manifestly fail in their responsibility to protect their population, the Security Council is empowered to authorize measures, including enforcement measures under Chapter 7 of the UN Charter.
According to the Commission of Inquiry on the Syrian Arab Republic, there are reasonable grounds to consider the attacks on civilians during the Syrian war as war crimes and, in some cases, as crimes against humanity.9 The situation in Syria represented a prima facie case for the Security Council to take action on the basis of R2P.10 Some argue that the fact that
1 Ljupcho Stojkovski, ‘The Importance of the ‘Responsibility Not to Veto’ Debate’ in Vasilka Sancin (ed), Are we “manifestly failing” R2P? (1st edition, University of Ljubljana, Faculty of Law 2017) 88.
2 ibid 87.
3 General Assembly, Report of the independent international commission of inquiry on the Syrian Arab Republic, A/HRC/21/50 (16 August 2012) 75.; Nadia Banteka, ‘Dangerous Liaisons: The Responsibility to Protect and a Reform of the U.N. Security Council’ (2016) 54 Columbia Journal of Transnational Law 396.
4 Charter of the United Nations, arts. 24 and 39. 5 ibid art. 25.
6 General Assembly resolution 60/1, 2005 World Summit Outcome, A/RES/60/1 (24 October 2005), para 139. 7 Stojkovski (n 1) 87.
8 ibid 88.
9 Report of the independent international commission of inquiry on the Syrian Arab Republic (n 3) 75. 10 Banteka (n 3) 396.
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China and Russia used their veto power against resolutions intended to protect the population of Syria, illustrates that the idea of R2P does not receive the essential political support within the Security Council which is necessary for a response to mass atrocities.11
Though R2P can be argued to be a putative normative standard and a moral duty of the international community, it has no binding legal force in itself.12 The question that arises from the foregoing, is how the permanent members of the Security Council are expected to use their veto power in situations of mass atrocities.13 Should they agree not to use it in these situations? In the last decade, several Responsibility Not to Veto (RN2V) initiatives have been presented. According to the concept of RN2V, the veto-holding member states of the Security Council should, in cases of mass atrocities, refrain from exercising their veto power.14
This thesis is aimed at providing an answer to the question whether a restriction of the veto power of the permanent members of the Security Council in situations of mass atrocities, is feasible. In the context of this thesis, such a restriction should be understood as the
abstention from vetoing proposed resolutions in cases of mass atrocities. This thesis is
structured as follows. The second chapter discusses the veto power enjoyed by the permanent five and the Realpolitik behind granting this right to these states. It concludes with a
discussion of the institutional set-up in the UN Charter of the Security Council and its powers in relation to the maintenance of international peace and security. The third chapter is devoted to the Responsibility to Protect (R2P) principle. It explains its meaning, discusses how it has been established and connects it with the notion of sovereignty of states. The fourth chapter concerns the idea of RN2V. It explains this idea and elaborates on its important underlying norms. It then demonstrates how the R2P principle and the notion of RN2V, in the opinion of some authors, are connected to each other. It subsequently discusses the authority of the UN General Assembly, under the so-called ‘Uniting for Peace’ Resolution, to make
recommendations to the members of the UN for collective measures in order to restore or maintain international peace and security, in case of a deadlocked Security Council.15 The last part shows the important role article 103 UN Charter plays in the RN2V debate. The fifth chapter pays particular attention to the view of the permanent five regarding veto restraint, the protection of civilians and the legitimacy of the Security Council. It then provides an overall assessment of a restriction of the veto power, which is followed by some recommendations.
11 ibid.
12 Stojkovski (n 1) 87. 13 ibid.
14 Jean-Baptiste J. Vilmer, ‘The Responsibility Not to Veto: A Genealogy’ (2018) 24 Global Governance 1. 15 General Assembly resolution 5/377, 377 (V). Uniting for Peace, A/RES/5/377 (3 November 1950), para 1.
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2. The Veto Power of the Permanent Members of the UN Security Council
2.1 Purpose and Background
In order to be able to answer the question whether a restriction of the veto power in cases of mass atrocities is feasible, it is essential to know what the right to veto entails and why the permanent members of the Security Council were provided with it in the first place. The right to veto decisions is reflected in article 27, paragraph 3 of the UN Charter. In short, a veto can be described as a negative vote of a permanent member on a non-procedural issue. In order to prevent a Third World War, China, France, Russia (formerly USSR), the United Kingdom and the United States were granted the right to veto decisions. The latter three states were considered to be the ‘Big Three’ or the ‘Great Powers of the Second World War’.16 It was
deemed necessary that these states had to become able to protect their vital interests. In this way, a war or conflict with a major power, who disagreed with a certain decision, was sought to be prevented.
2.2. The Veto Power
Article 27 of the UN Charter governs the voting procedure of the Security Council. According to the first paragraph of this article, all of the members of the Security Council have one vote each. Article 27 draws a distinction between, on the one hand, decisions on procedural matters (paragraph 2), and, on the other hand, decisions on non-procedural or substantive matters (paragraph 3). Procedural matters are (non-exhaustively) contained in articles 28, 29 and 30 of the UN Charter.17 Non-procedural matters typically involve decisions or recommendations under Chapters II, VI, VII, XIV and XV of the UN Charter.18
The veto power of the permanent members is, as mentioned, reflected in article 27, paragraph 3 of the UN Charter. It follows from this provision that for Security Council decisions on all matters except for procedural ones, an affirmative vote of nine of its members is required. These nine votes should include ‘the concurring votes of the permanent members’. The requirement of the ‘affirmative vote’ of the permanent members, should be understood as
16 Bruno Simma (ed), ‘The Charter of the United Nations: A Commentary’ (2nd edition, volume 1, OUP 2002) 438.
17 Robert Kolb, ‘An Introduction to the Law of the United Nations’ (Hart Publishing Ltd. 2010) 137. 18 ibid.
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meaning that none of them has voted against a proposed resolution.19 The proposed decision shall not be affected by the abstention from voting by one of the permanent members. The permanent members may decide to abstain from voting in case they do not support a proposed decision, but do not want to prevent it from being adopted because of their veto.20 Parties to a conflict are obliged to abstain from voting.21
It is not always clear whether a certain matter is a procedural or a non-procedural one. In such cases, a prior decision on this question has to be made.22 A ‘double veto’ can be described as:
a succession of two negative votes: (1) when a permanent member casts a negative vote in a decision to be taken regarding the preliminary question as to whether or not a certain matter is a procedural one, and (2) when, after this preliminary vote, the same permanent member casts another negative vote in the non-procedural decision itself.23
Following an agreement reached by the great powers during the San Fransisco conference, the Security Council decided that in all cases of doubt, preliminary questions are subject to the veto.24 This was determined in order to prevent the veto from being bypassed ‘by holding that a question concerned a ‘procedural matter’ on a majority vote of nine members’.
Each of the permanent members is, by vetoing a proposed resolution, capable of preventing this resolution from being adopted and therefore of frustrating the preference of the majority of other members of the Security Council.25 While every veto is considered a negative vote, not every negative vote is considered a veto.26 A negative vote of a permanent member is not a veto in case a proposed resolution has not been adopted for the reason that it is not supported by the required majority.
19 Kolb (n 17) 135.
20 Rumki Basu, ‘The United Nations: Structure and Functions of an International Organisation’ (Sterling Publishers Pvt. Ltd. 1993) 56.
21 Charter of the United Nations, art. 27(3). 22 Simma (ed) (n 16) 903.
23 Yuen-li Liang, ‘The So-Called “Double Veto”’ (1949) 43 The American Journal of International Law 134. 24 Kolb (n 17) 137.
25 Steven Chan, ‘Power, Satisfaction and Popularity: A Poisson Analysis of UN Security Council Vetoes’ (2003) 38 Journal of the Nordic International Studies Association 339.
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2.3. The Realpolitik Behind the Veto Power
The League of Nations was established in response to the First World War.27 Its primary objective was, like that of the UN, to maintain peace.28 Although it achieved some successes, its primary aim was not reached because of several reasons, one of which related to the incapacity to take timely action and another one of which concerned the lack of leadership by a world power such as the United States.29 The Second World War completely changed the world.30 Millions of people died or were made homeless. During this war, the United States and the Soviet Union emerged as two separate ‘Super Powers’. Following the end of the war, the world became divided into two opposite camps. The United States followed the tenets of capitalism and was characterised by presidential democracy and a market economy. In the communist Soviet Union, the monopoly of power was held by one political party and everything was in possession of the state. However, despite the fundamental differences between the two camps and the mistrust between their respective leaders, there was a clear need for a new international peace organization.
The states that formed an alliance during the Second World War wished to create an international organization similar to the League of Nations.31 In October 1943, Russia, the United Kingdom and the United States issued the Moscow Declaration. These three states were considered to be the ‘Big Three’ or the ‘Great Powers of the Second World War’.32 The Moscow
Declaration highlighted the need for an international organization that was aimed at maintaining international peace and security and that was based on the notion that all states, regardless of whether they are small or large, have equal sovereignty.33 From August to October 1944, a conference on the principles and structure of this organization was held at Dumbarton Oaks. At the beginning, only Russia, the United Kingdom and the United States participated in this conference. Later they were joined by China. These ‘Big Four’ believed that if they together would be able to reach substantial agreement, the opposition or criticism of other states would
27 Amos Yoder, ‘The Evolution of the U.N. System’ (Taylor & Francis New York Inc 1989) 8. 28 Kolb (n 17) 7.
29 Kolb (n 17) 16.
30Provisional Rules of Procedure of Procedure in the Security Council’ in Anjali V. Patil, ‘the UN Veto in
World Affairs, 1946-1990: A Complete Record and Case Histories of the Security Council’s Veto (Mansell Publishing Ltd. 1992) 4.
31 Kolb (n 17) 20. 32 Simma (ed) (n 16) 438. 33 Kolb (n 17) 20.
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not have much effect.34 The conference led to the presentation of the Dumbarton Oaks Proposals, which were completed in February 1945 by the Yalta Agreement.
During the debates that took place prior to the founding of the UN, it was agreed upon that not only China, Russia, the United Kingdom and the United States, but also France should receive a prominent position in this organization.35 These five states each played an integral role during the negotiating process leading to the adoption of the UN Charter.36 It was the conference in San Fransisco, which took place from April to June 1945, that led to the adoption of this Charter.37 Among the fifty participating states were those who fought during the Second World War under the banner of the United Nations. During this conference there were serious disagreements between, on the one hand, the ‘Big Three’, and, on the other hand, smaller and less powerful states.38 The ‘Big Three’ insisted on being granted with the right to veto proposed actions under the UN Charter. For Russia it was the price of joining the UN and also for the United States it was a non-negotiable condition. The smaller states were not able to avoid the provision of this right to the permanent members. The idea was that the proposals made during the San Fransisco conference that were considered unacceptable by the major powers, would not be adopted, now that the participation of those powers in the organization was deemed necessary.39 The provision of their prominent position forms an exception to the principle of sovereign equality of states under international law.40 The justification for this exemption was based on the need to effectively ensure international peace. This was only considered to be possible if these states would participate. If they would not have been provided with a veto power, these five states argued not to join the UN.41 Besides that, the superior military power and mobilization of Russia, the United Kingdom and the United States had shown to be necessary in order to defeat the Axis powers during the Second World War.42
Unanimity was the rule during the League of Nations and in diplomatic conferences prior to the First World War. Under the Covenant of the League of Nations, there is a general veto right.43 Under the UN Charter, this right is only applicable to non-procedural matters and
34 Evan Luard, ‘A History of the United Nations: Volume 1: The Years of Western Domination, 1945-1955’ (The Macmillan Press Ltd. 1982) 27.
35 Simma (ed) (n 16) 438. 36 Banteka (n 3) 400. 37 Kolb (n 17) 21. 38 Patil (n 30) 5.
39 James Barros (ed), ‘The United Nations: Past, Present, and Future’ (The Free Press 1972) 19. 40 Simma (ed) (n 16) 438.
41 Banteka (n 3) 400. 42 Barros (n 39) 19. 43 Kolb (n 17) 12.
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is only granted to the permanent members of the Security Council. The introduction of a weighted majority (two thirds of the members of the United Nations), reflected in for example article 108 of the UN Charter, was a breakthrough.
The veto serves the political purpose of ensuring that China, France, Russia, the United Kingdom and the United States continue to participate in the UN.44 By granting them veto power, they can prevent decisions they fundamentally disapprove from being adopted. If they would not have this power, the adoption of such a decision might make them leave the UN. The fact that the ‘Big Three’ played a crucial role in defeating Axis aggression, illustrated the necessity of having an international peace organization based on their cooperation.45
2.4. The Security Council and Its Institutional Set-up
The Security Council is one of the main organs of the UN and is entrusted with the primary responsibility to maintain international peace and security.46 Chapter V of the UN
Charter deals with the Security Council. The Security Council consists of fifteen UN member states, five of which are permanent members and the other ten of which are non-permanent members.47 Each of these members has one representative.48 The permanent members are China, France, Russia, the United Kingdom and the United States. The non-permanent members, which are elected by the UN General Assembly, form part of the Security Council for a period of two years.49 According to article 23, paragraph 1 of the UN Charter, the General Assembly has to equally distribute the seats of the non-permanent members. In order to do so, it elects three African states, two Asian states, two Latin American states, two Western Europe or other states (New Zealand, Australia, Israel and Canada) and one Eastern European state.50 The Security Council’s Presidency is held by each of its members in turn for one month.51
The powers the Security Council are laid down in articles 24, 25 and 26 and in Chapters VI, VII, VIII and XII of the UN Charter. Chapter VI provides the Security Council with powers in relation to conflicts which might pose a threat to the maintenance of international peace and
44 Kolb (n 17) 136. 45 Barros (n 39) 19.
46 Charter of the United Nations, arts. 7, 24. 47 Charter of the United Nations, arts. 23-32. 48 Charter of the United Nations, art. 23(3). 49 Charter of the United Nations, arts. 23(1), 23(2). 50 Kolb (n 17) 135.
51 United Nations, ‘Basic Facts about the United Nations’ (United Nations Department of Public Information 2011) 8; Patil (n 30) 547.
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security. The Security Council is empowered to investigate these disputes and to make recommendations aimed at a peaceful settlement thereof.52 Chapter VII specifies the powers the Security Council can exercise in case it finds an act of aggression, or a (threat of a) breach of international peace.53 The legal and political precondition for the taking of enforcement measures by the Security Council, is the invocation of article 39 of the UN Charter.54 This article, which is the key to the collective security system of the UN, provides the Security Council with the discretionary power to determine whether a certain action or situation poses a threat to peace, or constitutes a breach of peace or an act of aggression. The Security Council is authorized to impose provisional measures and to take non-forcible measures such as interruption of economic relations.55 Only in case the Security Council believes that non-forcible measures are not adequate to reach the objective of maintaining international peace and security, it can authorize military action, like blockade and demonstrations.56 Military action
shall only be taken as last resort.57 Chapter VIII lays down the authority of the Security Council
in relation to regional arrangements and Chapter XII provides the Security Council with the power to exercise functions regarding strategic areas. In case the Security Council considers it necessary for the conducting of its functions, it is able to establish subsidiary bodies.58 Examples of such bodies are the International Criminal Tribunal for the former Yugoslavia (ICTY) and the United Nations Military Staff Committee.59 Decisions of the Security Council are to be accepted and to be carried out by the UN member states.60
52 Charter of the United Nations, arts. 33-34, 36-38. 53 Charter of the United Nations, art. 39.
54 Terry D. Gill, ‘Legal and some political limitations on the power of the UN Security Council to exercise its enforcement powers under Chapter VII of the Charter’, in ‘Netherlands Yearbook of International Law: Volume XXVI’ (Martinus Nijhoff Publishers 1995) 45.
55 Charter of the United Nations, arts. 40-41. 56 Charter of the United Nations, art. 42. 57 United Nations (n 51) 61.
58 Charter of the United Nations, art 29.
59 United Nations Security Council, ‘Committees, Working Groups and Ad Hoc Bodies’ (United Nations) <https://www.un.org/securitycouncil/content/committees-working-groups-and-ad-hoc-bodies> accessed 27 March 2019.
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3. Responsibility to Protect
3.1. Purpose and Background
In order to assess the feasibility of a restriction of the veto power of the permanent five in situations of mass atrocity crimes, it is important to have a clear understanding of the principle of R2P. The duty of states to protect their populations and to prevent genocide, war crimes, crimes against humanity and ethnic cleansing follows from a variety of treaties and customary international law.61 It should be noted that acts of ethnic cleansing are generally
considered to constitute crimes against humanity.62 Since 2005, the idea of the responsibility of
each state to protect its population from these grave crimes has been embraced by the international community in the principle of R2P. This principle was endorsed by the Heads of State and Government in the WSOD of 2005. Though R2P does reflect existing legal obligations, it is not a legally binding rule.63 The idea of R2P is included in paragraph 138 and 139 of the WSOD. In 2009, Secretary-General Ban Ki-moon presented a report on the implementation of R2P, aimed at forging a common strategy as well as a renewed political commitment.64 This report introduced, corresponding to the formulation of R2P mandated in the WSOD, three pillars on which this principle rests.65 Under the first pillar, states are responsible to protect their populations from mass atrocities as well as from incitement thereof. The second pillar relates to the commitment of the international community to support states in acting in accordance with their duty to protect their people. The third pillar reflects the responsibility of states to react collectively, and both in a decisive and timely manner in the case where a state is obviously failing to grant such protection to its population. Under this responsibility, the international community could take adequate humanitarian, diplomatic and other peaceful measures under Chapter VI and VIII of the UN Charter. In case peaceful measures are not appropriate, the international community is allowed to take action, through the Security Council, under Chapter VII of the UN Charter. This should be decided on a case-by-case basis and in cooperation with regional organizations.
61 Diana Amnéus, ‘The coining and evolution of responsibility to protect: the protection responsibilities of the State’, in Gentian Zyberi (ed), ‘An Institutional Approach to the Responsibility to Protect’ (CUP 2013) 3. 62 Rome Statute of the International Criminal Court, art. 7; Statute of the International Criminal Tribunal for the Former Yugoslavia, art. 5.
63 Terry D. Gill, ‘The Security Council’, in Gentian Zyberi (ed), ‘An Institutional Approach to the Responsibility to Protect (CUP 2013) 86.
64 General Assembly, Implementing the responsibility to protect: Report of the Secretary-General, A/63/677 (12 January 2009); Amnéus (n 61) 11.
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3.2. Establishment of R2P
In his speech at the 54th session of the UN General Assembly, Secretary-General Kofi Annan mentioned the inaction by the international community in relation to the genocide in Rwanda as well as the lack of unity within the international community while addressing the Kosovo conflict.66 It was this conflict that, according to Annan, cast in stark relief the dilemma of humanitarian intervention: ‘on one side, the question of legitimacy of an action taken by a regional organization without a United Nations mandate; on the other, the universally recognized imperative of effectively halting gross and systematic violations of human rights with grave humanitarian consequences’.67 The absence of unity and therefore inaction of the
international community during the Kosovo conflict, demonstrated the need for the UN, and its Security Council in particular, in the words of Kofi Annan: ‘to forge unity behind the principle that massive and systematic violations of human rights – wherever they may take place – should not be allowed to stand’.
In his report of 2000, Annan asked the question how the international community should react to massive human rights violations, for example in Srebrenica and Rwanda, ‘that offend every precept of our common humanity’, if humanitarian intervention is regarded as an unacceptable violation of state sovereignty.68 In response to Annan’s call to the international community to reach a new consensus on how to respond to grave breaches of humanitarian and human rights law, a report was published by an Independent International Commission on Intervention and State Sovereignty (ICISS).69 Instead of talking about a ‘right to intervene’ and ‘humanitarian intervention’, the ICISS preferred to speak about a ‘responsibility to protect’.70
They introduced some precautionary principles (such as right intention and last resort) as well as a just cause threshold and considered the Security Council as the right authority to authorize military intervention for the purpose of human protection.71 They further proposed that R2P consists of three constitutive elements: the responsibility to prevent, react and rebuild.72
66 General Assembly, Fifty-fourth Session, 4th plenary meeting, A/54/PV.4 (20 September 1990) 2.
67 ibid.
68 General Assembly, We the peoples: the role of the United Nations in the twenty-first century. Report of the Secretary-General, A/54/2000 (27 March 2000) para 217.
69 International Commission on Intervention and State Sovereignty, The Responsibility to Protect (International Development Research Centre 2001).
70 ibid para 2.4. 71 ibid XII. 72 ibid XI.
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A few years later, the General Assembly adopted the R2P principle.73 However, it was not adopted in the form proposed by the ICISS.74 The abovementioned constitutive elements, for example, were not explicitly endorsed in the WSOD. The principles of precaution as well as proposals regarding the right authority were neither endorsed therein. The biggest step towards the emergence of R2P as a rule of customary international law came presumably from the report of Secretary-General Ban Ki-moon on the implementation of R2P in 2009.75
3.3. Sovereignty and R2P
The principle of sovereignty of states is enshrined in article 2, paragraph 1 of the UN Charter. All states are considered equal and are entitled to exercise exclusive jurisdiction within the borders of their territories.76 States are not allowed to interfere with internal issues
of other states. This principle of non-intervention is laid down in article 2, paragraph 7 of the UN Charter. The notion of R2P is built upon two underpinnings.77 The first one is ‘the
description of state sovereignty as responsibility’ and the second one is ‘the identification of a complementary responsibility to protect, bearing upon the international community, whenever a state is unable or unwilling to exercise its role in protection’. Departing from the state-centred, Westphalian idea of sovereignty based on both the principle of territoriality and the principle of non-intervention, the notion of ‘sovereignty as responsibility’ means that
sovereign states are responsible for the welfare and protection of the population living within their jurisdiction, and that they are accountable for discharging this
responsibility both internally to their own population, and externally to the international community.78
73 2005 World Summit Outcome Document (n 6), paras 138-139. 74 Amnéus (n 61) 8.
75 Implementing the responsibility to protect: Report of the Secretary-General (n 64).; Stevie Martin,
‘Sovereignty and the Responsibility to Protect. Mutually Exclusive or Codependent?’ (2011) 20 Griffith Law Review 171.
76 International Commission on Intervention and State Sovereignty (n 69) 12.
77 Ludovica Poli, ‘The Responsibility to Protect within the Security Council’s Open Debates on the Protection of Civilians: A Growing Culture of Protection’, in Julia Hoffmann and André Nollkaemper (eds), ‘Responsibility to Protect: From Principle to Practice’ (AUP 2012) 72.
78 Jan Wouters, Philip De Man and Marie Vincent, The Responsibility to Protect and Regional Organisations: Where Does the European Union Stand?’ in Julia Hoffmann and André Nollkaemper (eds), ‘Responsibility to Protect: From Principle to Practice’ (AUP 2012) 249.
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As mentioned, the first pillar of the principle of R2P confirms that sovereignty entails the responsibility of states to protect their populations against mass atrocity crimes.79 Though this was not a new idea, it was significant that states declared in the WSOD to accept this responsibility and to act in accordance with it.80 The commitment of the international
community under the second pillar to assist states in exercising their responsibility to protect, does not necessarily have impact on the meaning of sovereignty, assuming that help will be provided with the consent of the state in question.81 In relation to this, it has been argued that the ‘international society should work to strengthen the sovereign state rather than undermine or bypass it, since a strong and capable sovereign is, for better or worse, assumed to remain the best guarantor of human protection’.82 Regarding the third pillar should be noted that
despite the deep historical roots of the idea of ‘international enforcement of sovereign responsibilities’, before the adoption of the WSOD it had never been so plainly endorsed by the international community.
79 Luke Glanville, ‘Sovereignty’, in Alex J. Bellamy and Tim Dunne (eds), ‘The Oxford Handbook of The Responsibility to Protect’ (OUP 2006) 161.
80 2005 World Summit Outcome Document (n 6), para 138. 81 Glanville (n 79) 161.
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4. The Responsibility Not to Veto
4.1. Purpose and Background
As already mentioned in the introductory part, calls for eliminating or restricting the veto power enjoyed by the permanent members of the Security Council have been made since the establishment of the UN.83 An example of an initiative aimed at the restriction of the veto power was prepared by France and Mexico a couple of years ago. In 2015, they prepared a joint political Declaration regarding the suspension of the veto in situations of mass atrocities.84 This
Declaration, which is supported by 96 UN member states, does not aim at formally amending the UN Charter, but calls for a mutual commitment of the Security Council’s permanent members to voluntary abstain from exercising their veto power in situations of mass atrocities.85
The French-Mexican initiative was not the only one presented in 2015. The ACT group, which consists of 27 small and middle-sized states and which is aimed at improving the Security Council’s accountability, coherence and transparency, promoted a ‘Code of Conduct’.86 It
includes, among others, a pledge ‘not to vote against a credible draft resolution before the Security Council on timely and decisive action to end the commission of genocide, crimes against humanity or war crimes, or to prevent such crimes’.87 As of the first of June 2018, the
Code of Conduct has been supported by 115 UN member states, including permanent members France and the United Kingdom.88
Both of these initiatives demand the restriction of the use of their veto power by the permanent members of the Security Council in situations of mass atrocities and can be considered so-called Responsibility Not to Veto (RN2V) initiatives.89 The next section
83 Stojkovski (n 1) 88. 84 ibid 91.
85 ibid.; Global Centre for the Responsibility to Protect, ‘List of Supporters of the Political Declaration on Suspension of Veto’ (16 November 2015) <http://www.globalr2p.org/resources/894 > accessed 5 April 2019. 86 Centre for UN Reform Education, ‘fACT Sheet: The Accountability, Coherence and Transparency Group – Better Working Methods for today’s UN Security Council’, (June 2015)
<http://centerforunreform.org/sites/default/files/FACT%20SHEET%20ACT%20June%202015.pdf > accessed 5 April 2019.
87 General Assembly/Security Council, Code of conduct regarding Security Council action against genocide, crimes against humanity or war crimes, A/70/621 - S/2015/978 (14 December 2015), available from
undocs.org/A/70/621.
88 International Coalition for the Responsibility to Protect, ‘The ACT Code of Conduct’ (September 2018) <http://www.responsibilitytoprotect.org/files/ACT%20CoC%20infographic.pdf> accessed 8 April 2019. 89 Stojkovski (n 1) 88.
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describes the norms and obligations that underlie the notion of RN2V, in particular in cases of mass atrocities.
4.2. Norms and Obligations Underlying RN2V
The concept of RN2V restates core human rights obligations. The United Nations can be described as the guardian of peace as well as of human rights.90 As said earlier, it follows from the first paragraph of article 24 of the UN Charter that the Security Council carries the primary responsibility to maintain international peace and security. According to the second paragraph of the same article, the Security Council is obliged to carry out this responsibility in accordance with the Purposes and Principles of the United Nations, which are laid down in the first chapter of the UN Charter (article 1 and 2 respectively). One of the purposes of the UN included therein, is the protection and promotion of human rights.91
The Genocide Prevention Task Force described mass atrocities as deliberate and large-scale attacks directed against civilians.92 Genocide, crimes against humanity and war crimes
can be considered mass atrocity crimes.93 Genocide, crimes against humanity and war crimes are defined in several international legal documents, one of which is the Rome Statute of the International Criminal Court (article 5, 6 and 7 respectively).94 In December 1948, the UN General Assembly adopted the Universal Declaration of Human Rights (UDHR).95 The UDHR was declared by the General Assembly to be ‘a common standard of achievement for all peoples and all nations’. In article 1 of this Declaration, the right to live in dignity is laid down and according to article 3, every individual has the right to life, liberty and security. Mass atrocity crimes constitute gross violations of fundamental human rights.96 Genocide, to begin with, can be considered a serious breach of the right to human dignity: victims of genocidal attacks are
90 Bertrand G. Ramcharan, ‘The Security Council and the Protection of Human Rights’ (Kluwer Law International 2002) ix.
91 Charter of the United Nations, art 1(3).
92 Madeleine K. Albright and William S. Cohen, ‘Preventing Genocide: A Blueprint for U.S. Policymakers’ (Genocide Prevention Task Force, 2008) xxii <https://www.usip.org/publications/2008/12/preventing-genocide-blueprint-us-policymakers> accessed 11 April 2019.
93 Global Centre for the Responsibility to Protect, ‘Background Briefing: Defining the Four Mass Atrocity Crimes’ (February 2018) <http://www.globalr2p.org/media/files/defining-the-four-crimes.pdf> accessed 11 April 2019.
94 Rome Statute of the International Criminal Court 1945.
95 General Assembly resolution 217 A, Universal Declaration on Human Rights, A/RES/3/217A (10 December 1948), available from undocs.org/en/A/RES/217(III).
96 David P. Forsythe, ‘Human Rights and Mass Atrocities: Revisiting Transitional Justice’ (2011) 13 International Studies Review 85.
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victims solely because they belong to a particular group.97 Crimes against humanity and war crimes also constitute gross violations of, among other fundamental rights, the right to dignity.98 According to the preamble of the Rome Statute, these grave violations are ‘of concern to the international community as a whole’. Even if massive human rights violations take place within one single state, a threat to world peace can be assumed to exist.99
The Vienna Convention on the Law of Treaties defines peremptory norms or ‘jus cogens’ norms in article 53 as norms ‘accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted’.100 ‘Jus cogens’ norms are obligations ‘erga omnes’, meaning ‘obligations towards the international community as a whole’.101 This means that the protection of ‘jus cogens’ norms is in the interest of all members
of the international community.102 It is, however, not specified which norms are ‘jus cogens’ norms.103 It is neither defined how a certain rule can reach the status of ‘jus cogens’ norm.
Despite these uncertainties, genocide, crimes against humanity and war crimes are all generally accepted to be crimes having the status of ‘jus cogens’. They should always be prohibited. At times, the Security Council deals with cases of severe breaches of human rights.104
Situations in which international peace and security is breached or threatened, often turn on human rights issues.105 Under the UN Charter, the Security Council is provided with several powers. They range from the authority to mediate and investigate, to the authority to take enforcement action or even military measures.106 Since human rights were understood to be a matter of economic and social cooperation, they were only included in chapters IX and X of the UN Charter.107 The Security Council has not specifically been granted by the UN Charter with a mandate to promote and protect human rights. Chapters V, VI, VII and VIII, concerning the Security Council and its powers and functions, do not refer once to the notion of human rights.
97 Gerhard Werle and Florian Jessberger, ‘Principles of International Criminal Law’ (3rd edition, OUP, 2014) 295.
98 ibid 333, 409. 99 ibid 33.
100 Vienna Convention on the Law of Treaties 1980.
101 Jan Wouters and Sten Verhoeven, ‘The Prohibition of Genocide as a Norm of Ius Cogens and Its Implications for the Enforcement of the Law of Genocide’ (2005) 5 International Criminal Law Review 405.
102 ibid 415.
103 Anees Ahmed and Merryn Quayle, ‘Can genocide, crimes against humanity and war crimes be pardoned or amnestied?’ (2008) 79 Amicus Curiae 17.
104 United Nations, ‘Protect Human Rights’ <https://www.un.org/en/sections/what-we-do/protect-human-rights/> accessed 10 April 2019.
105 Ramcharan (n 90) 18.
106 Charter of the United Nations, arts 33-34, 41-42.
107 Bardo Fassbender (ed), ‘Securing Human Rights? Achievements and Challenges of the UN Security Council’ (OUP 2011) 2.
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However, it is arguable that the Security Council has carved itself a role regarding the promotion and protection of human rights, depending on the Council’s preliminary determination that grave breaches of human rights constitute a threat to international peace and security.108
4.3. Relationship RN2V and R2P
Some argue that the idea of R2P leads to the responsibility of the permanent members of the Security Council not to use their veto power in situations of mass atrocities.109 They emphasize that the Security Council has the responsibility to protect populations from mass atrocity crimes and to authorize measures (including measures under Chapter 7 of the UN Charter) in cases where national authorities are manifestly failing in their responsibility.110 They
argue that from this responsibility of the Security Council follows that in these cases the veto is expected not to be used to block action. In the draft version of the 2005 WSOD, the permanent members were invited to ‘refrain from using the veto in cases of genocide, war crimes, ethnic cleansing and crimes against humanity’.111 This idea of restriction of the veto power in cases of
mass atrocities was, however, not contained in the R2P section of the final 2005 WSOD. In his report on the implementation of the idea of R2P, Secretary-General Ban Ki-Moon urged the permanent members ‘to refrain from employing or threatening to employ the veto in situations of manifest failure to meet obligations relating to the responsibility to protect, as defined in paragraph 139 of the WSOD, and to reach a mutual understanding to that effect’.113 Finally, in the ‘Political statement on the suspension of the veto in case of mass atrocities’, prepared by France and Mexico, reference was made to the R2P section of the 2005 WSOD.114 The statement reaffirmed that the international community expressed in this Document to be prepared ‘to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter’, in cases where national authorities are failing to protect their populations from mass atrocity crimes. The statement further emphasized that the
108 Fassbender (ed) (n 107) 12.
109 Simon Adams, ‘The responsibility not to veto’ (Global Centre for the Responsibility to Protect, 21 January 2015) <http://www.globalr2p.org/media/files/2015-january-adams-veto-restraint-remarks.pdf> accessed 10 April 2019.
110 Stojkovski (n 1) 88.
111 General Assembly, Revised draft outcome document of the high-level plenary meeting of the General
Assembly of September 2005 submitted by the President of the General Assembly, A/59/HLPM/CRP.1/Rev.2 (10 August 2005), available from <http://www.ag-friedensforschung.de/themen/UN-Reform/draft-10-aug-05.pdf>. 113 Implementing the responsibility to protect: Report of the Secretary-General (n 64) p 27.
114 ‘Political statement on the suspension of the veto in cases of mass atrocities’
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veto should not be understood as a privilege, but as an international responsibility, and that ‘the Security Council should not be prevented by the use of veto from taking action with the aim of preventing or bringing an end to situations involving the commission of mass atrocities’.
4.4. Uniting for Peace
Over the years, dissatisfaction with the veto power has ebbed and flowed, depending on which of the permanent members have been blocked proposed resolutions as well as on the type of those resolutions.115 During the first years of the Security Council, the United States actively searched for ways in which the vetoes being cast by the Soviet Union could be circumvented. In 1950, the Secretary of State of the United States, Dean Acheson, introduced a proposal aimed at neutering the veto power of the Soviet Union in relation to the Korean War.116 On the first
of August of that year, the Soviet Union returned to the Security Council after an eight-month boycott because of the refusal to give the seat of China in the Security Council to the communist People’s Republic.117 During the period of the Soviet Union’s absence, the Security Council
was able to authorize a military coalition (led by the United States) to provide assistance to South Korea in repelling the attack by North Korea. The proposal led to the adoption by the General Assembly of resolution 377, also known as the ‘Uniting for Peace’ resolution.118 This resolution states, among others, that:
if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures,
115 Loraine Sievers and Sam Daws, ‘The Procedure of the UN Security Council’ (4th edition, OUP 2014) 315. 116 Citizens for Global Solutions, ‘The Responsibility Not to Veto: A Way Forward’ (Citizens for Global Solutions 2010) 3
<http://www.responsibilitytoprotect.org/Responsibility_not_to_Veto_White_Paper_Final_7_14__2_.pdf> accessed 18 January 2019.
117 Vaughan Lowe and others (eds), ‘The United Nations Security Council and War: The Evolution of Thought and Practice since 1945’ (OUP 2008) 156.
118 General Assembly resolution 377 (V). Uniting for Peace, A/RES/5/377 (3 November 1950), available from http://www.un-documents.net/a5r377.htm.
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including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.119
Resolution 377 was supported by 52 of the 60 states that were at that moment represented in the General Assembly.120 The Soviet-Union was the only permanent member that voted against this resolution. Resolution 377 can be described as one of the most serious attempts by the United States and its allies to change the power balance between the General Assembly and the Security Council at a time in which the latter was deadlocked because of frequent vetoes used by the Soviet-Union and in which the former ‘could command a pro-Western majority.121 It is important to note that under this resolution, the General Assembly is only allowed to make ‘appropriate recommendations to Members for collective measures’, in accordance with article 10 of the UN Charter.122 This means that resolution 377 does not empower the General
Assembly to authorize the use of force against a member state. The Security Council remains the only organ of the UN that has that power. The provisions of the UN Charter have thus, from the beginning, limited the extent to which the General Assembly could step in and take the place of the Security Council in case the latter was deadlocked because of a veto by one or more permanent members.123
In this regard, a discussion of the Advisory Opinion of the International Court of Justice of 20 July 1962 (Certain Expenses of the United Nations) cannot be lacking.124 The increased expenses involved in the UN peacekeeping operations in the Congo and Suez caused the United Nations serious financial difficulties. Several UN member states did not pay their apportioned share of the costs of these missions.125 These states, including the Soviet Union, were of the opinion that the operations were not conducted in conformity with the UN Charter and that they were therefore not bound by the resulting duties. The Soviet Union argued that the costs could not be considered ‘expenses of the Organization’, now that they were not exclusively dealt with by the Security Council. It further argued that the power of the General Assembly was allegedly limited to ‘discussing, considering, studying and recommending’, and that it therefore cannot oblige states to pay costs resulting from the implementation of recommendations. The Court
119 General Assembly, A/RES/5/377 (n 118) A 1.
120 Miguel Marín-Bosch, ‘Votes in the UN General Assembly’ (Kluwer Law International 1998) 79. 121 Lowe and others (eds) (n 117) 155.
122 Lowe and others (eds) (n 117) 158. 123 ibid.
124 International Court of Justice, Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, I.C.J. Reports 1962, p. 151.
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stated that the responsibility conferred to the Security Council under article 24 of the UN Charter is a primary, but not exclusive one and that the General Assembly is also ‘concerned with international peace and security.126
4.5. Article 103 UN Charter
Article 103 of the UN Charter reads as follows: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’. The objective that is pursued by this article is to secure the effectiveness of actions undertaken by the UN concerning the maintenance of international peace and security, by prioritizing obligations incurred under the UN Charter over obligations under other international treaties.127 While this article expresses a higher rank of obligations deriving from
the UN Charter, it does not mention whether the conflicting obligations that derive from any other international agreement are suspended, void(able) or unenforceable.128
Obligations resulting directly and immediately from the UN Charter are obviously covered by this article.129 Article 103, however, goes further. Measures taken in accordance with provisions of the UN Charter by which UN organs are empowered to adopt binding decisions, can lead to obligations for UN member states that prevail over commitments under other agreements. This is the case, for example, when the Security Council takes decisions and enforcement measures under Chapter VII of the UN Charter. To the extent UN member states are bound under article 25 of the UN Charter ‘to accept and carry out decisions of the Security Council in accordance with the present Charter’, they are also required, under article 103 of this Charter, to prioritize these obligations over any other obligation. An example of a case in which the International Court of Justice stated that article 103 of the UN Charter prevails over other
126 Advisory Opinion of 20 July 1962 (n 124) p. 163.
127 Robert Kolb, ‘Does Article 103 of the Charter of the United Nations Apply only to Decisions or also to Authorizations Adopted by the Security Council?’ (2004) 64 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 21.
128 Bruno Simma (ed), ‘The Charter of the United Nations: A Commentary’ (2nd edition, volume II, OUP 2002) 1295.
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international agreements, is the Lockerbie case.130 In this case, Security Council resolution 748 prevailed over the obligations that Libya had under the Montreal Convention.
The principle of lex specialis derogate legi generali requires that in case two norms are in conflict with one another, the more specific norm prevails.131 Article 103 of the UN Charter overrules this principle when the more specific or special rule is conflicting with obligations under the UN Charter. The principle of lex specialis is not the only one that concerns conflicts of norms. The principle of ‘jus cogens’ can also be applied in these cases. As mentioned in paragraph 4.2, there is a set of fundamental norms that cannot be derogated from. Rules that are not compatible with these ‘jus cogens’ norms are void and null.132 The question as to whether
these conflicting rules are concluded prior or after the emergence of a ‘jus cogens’ norm is irrelevant. It is hardly imaginable that a conflict exists between a ‘jus cogens’ norm and a primary rule of the UN Charter, but in case there is such a conflict, the nullity of this Charter rule is the in international doctrine widely accepted result.133 In his Separate Opinion in the
Genocide Case, Judge Lauterpacht illustrated this as follows:
The concept of jus cogens operates as a concept superior to both customary international law and treaty. The relief which Article 103 of the Charter may give the Security Council in case of conflict between one of its decisions and an operative treaty obligation cannot - as a matter of simple hierarchy of norms - extend to a conflict between a Security Council resolution and jus cogens. Indeed, one only has to state the opposite proposition thus - that a Security Council resolution may even require participation in genocide - for its unacceptability to be apparent.134
Article 103 has played a bigger role since the end of the Cold War because of the increased use by the Security Council of its powers under Chapter VII of the Charter and the controversial relationship that exists between these powers and other obligations of states,
130 International Court of Justice, Questions of Interpretation and Application of the 1971 Montreal Convention Arising From the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America),
Provisional Measures, Order of 14 April 1992, I.C.J. Reports 1992.
131 Bruno Simma and others (eds), ‘The Charter of the United Nations: A Commentary’ (3rd edition, volume II, OUP 2012) 2116.
132 ibid 2119. 133 ibid.
134 International Court of Justice, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia Herzegovina v Yugoslavia (Serbia and Montenegro)), Order of 13 September 1993, Separate Opinion Judge Lauterpacht, para 100.
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especially regarding human rights.135 There is a common presumption that ultra vires resolutions adopted by the Security Council do not give rise to obligations thereunder.136 Ultra
vires resolutions are adopted in excess of the Council’s competence and can therefore not
authorize UN member states to breach their other obligations under international law. In other words: states are not able ‘to avoid their responsibilities for human rights violations through an
ultra vires authorisation’.137
135 Simma and others (eds) (n 131) 2113.
136 Sophocles Kitharidis, ‘The Power of Article 103 of the UN Charter on Treaty Obligations: Can the Security Council Authorise Non-Compliance of Human Rights Treaty Obligations in United Nations Peacekeeping Operations?’ (2016) 20 Journal of International Peacekeeping 122.
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5. Feasibility of RN2V
The opinions of the members of the international community regarding the question of whether or not the veto power of the permanent members of the Security Council should be restricted vary considerably. This chapter analyses whether a possible restriction of the veto power is feasible. After having discussed the views of the permanent members regarding a restriction of their veto power and having evaluated whether a restriction of the veto power could lead to an increase in protection of civilians and/or to an increase of the Security Council’s legitimacy, it presents an overall assessment of the feasibility of RN2V. The final paragraph contains some recommendations.
5.1. Perspective Permanent Members
The perspectives of the permanent members on the restriction of their veto power in situations of mass atrocities differ. France, to begin with, initiated a veto-restricting proposal and also supports the Code of Conduct of the ACT group. The United Kingdom is also one of the signatories of this Code of Conduct, but has not signed the joint French-Mexican Declaration. A possible explanation for this could be that the Code of Conduct contains the pledge to abstain from voting against ‘credible’ draft resolutions of the Security Council ‘on timely and decisive action to end or prevent the commission of genocide, crimes against humanity and war crimes’.138 The qualifier ‘credible’ was initially not included in the Code of
Conduct, but was under British suggestion inserted therein.
China, Russia and the United States have not shown their support for either of those initiatives. Russia has been vocal in opposition to initiatives proposing restriction of the veto power.139 On the Ministerial Side-Event on regulating the veto in the event of mass atrocities, for example, Russia (as well as the other permanent members) delivered a statement.140 In this statement, Russia presented several reasons why it is of the opinion that the veto should not be restricted. It emphasized, firstly, that ‘the veto is one of the UN Charters main pillars’ and that ‘it is an indispensable element of the system of checks and balances’. Besides that, Russia
138 ‘Research Report: The Veto’ (No. 3, 19 October 2015) available from
<https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E 4FF9 6FF9%7D /research _report_3_the_veto_2015.pdf> accessed 19 April 2019.
139 ibid.
140 Global Centre for the Responsibility to Protect, ‘Statements deliverd at 2014 Ministerial Side-Event on regulating the veto in the event of mass atrocities’ (25 September 2014)
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argued that ‘the use of the veto or the threat to use it or the danger to be used has repeatedly safeguarded the UN against doubtful undertakings’, thereby providing as an example the war in Iraq (2003). It further stated that Security Council resolution 1973, against which no veto was exercised, led to the ‘toppling of the legitimate government’. Finally, Russia stressed that in a vast majority of cases ‘where the veto was not used’, atrocities continued and the scale on which they took place increased.
Both China and the United States appear to have reservations about initiatives on restriction of their veto power.141 The United States has not publicly expressed its opinions on the French-Mexican initiative and the Code of Conduct of the ACT group, but has in private reportedly informed diplomats of other member states to have reservations regarding the restriction of the veto power. The United States does not want its veto power to be restricted in any way.142 China neither supports the idea of restriction of the veto power.143 As of today,
China has used its veto eleven times.144 During the Ministerial Side-Event in 2014, China stated
that:
Veto is the right granted to the permanent members of the Security Council which recognizes the valuable contribution and the sacrifices by the five permanent members during the world anti-fascist war, that is the Second World War. The founding fathers of the United Nations have established the principles for concurrence of bigger powers for the Security Council’s decision making mechanism. This is the foundation to guarantee the feasibility of the United Nations collective security arrangements.145
As mentioned in chapter 2, the veto power was an indispensable prerequisite for Russia, the United Kingdom and the United States to join the UN. It is the prerogative of the five permanent members laid down in the UN Charter. The veto was to ensure that the major powers at the end of the Second World War would not oppose a decision. Except for France and the United Kingdom, the permanent members do not want their veto power to be restricted (in cases of mass atrocities). If their right to veto proposals would be restricted, the permanent five become unable to prevent the adoption of a decision they might be opposed to. Here lies the danger: if such a decision gets adopted, they might leave the UN. China, the United States and
141 ‘Research Report: The Veto’ (n 138). 142 Stojkovski (n 1) 99.
143 ibid.
144 United Nations, ‘Security Council – Quick Links: UN Documentation Research Guide – Vetoes’ (4 January 2019) <https://research.un.org/en/docs/sc/quick> accessed 23 April 2019.
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Russia have some of the largest armies in the world. It is of fundamental value for the maintenance of international peace and security that they do not leave the United Nations.
5.2. Protection of Civilians
One of the purposes of veto-restricting initiatives is to increase the protection of civilians.146 It can be questioned, however, whether the restriction of the use of the veto in cases of mass atrocities does actually contribute to the accomplishment of this purpose.147 The question can be posed whether certain measures would do more harm than good.148 Why should a permanent member refrain from using its veto power against a proposed resolution if it believes that more civilians would be killed than saved by the military intervention authorized under that resolution? There is a risk that a particular resolution is too strong, proposing the use of force not as a last resort, but instead as first resort.149 A restriction of the veto power would
make it impossible for a permanent member to oppose against a resolution under which use of force is immediately authorized. In order to answer the question whether abstention from vetoing resolutions in cases of mass atrocities increases the likelihood that civilians are protected from that, it is essential to have a look at previous interventions.150 The historical record shows that there has been a number of cases in which military action was not appropriate and did not result in protection of the civilian population.
The first case in which the Security Council had authorized the use of force for the purpose of protecting civilians without the consent of the concerned recognized government, was Libya.151 With Resolution 1973, the Security Council reiterated that the Libyan authorities had the responsibility to protect the civilian population and authorized UN member states ‘to take all necessary measures’ to protect the civilian population.152 The controversial aspect of
this case concerned the way in which the use of force mandate was applied by NATO and its allies.153 Many governments as well as commentators were of the opinion that they exceeded
146 Daniel H. Levine, ‘Some Concerns About ‘The Responsibility Not to Veto’ (2011) 3 Global Responsibility to Protect 324.
147 ibid.
148 Vilmer (n 14) 12. 149 ibid.
150 Levine (n 146) 326.
151 Alex J. Bellamy, ‘The Responsibility to Protect: A Defense’ (OUP 2015) 9.
152 Security Council resolution 1973, Adopted by the Security Council at its 6498th meeting, on 17 March 2011, S/RES/1973 (17 March 2011), available from
https://www.nato.int/nato_static/assets/pdf/pdf_2011_03/20110927_110311-UNSCR-1973.pdf. 153 Bellamy (n 151) 184.
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their mandate by using this ‘as a vehicle for regime change’.154 Critics further state that the
alliance failed to take precautions needed to ensure that civilians would not be harmed by its air strikes. The International Commission of Inquiry on Libya, which was established in 2011 by the Human Rights Council of the UN, conducted investigations on alleged breaches in Libya of international human rights law.155 This Commission concluded that the Qadhafi forces committed war crimes and crimes against humanity.
The Security Council considered – as is shown by Resolution 1973 – ‘that the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity’. Ten countries voted in favour of Resolution 1973 and five countries (including permanent members China and Russia) abstained from voting.156 Libya was a case considered to involve mass atrocities and the permanent members were not restricted in their right to veto against Resolution 1973. But what if they would become unable to veto future resolutions in cases of mass atrocity crimes? The Libya case has shown that resolutions in cases of mass atrocities do not necessarily lead to appropriate military action and protection of civilians. Good intentions, after all, do not automatically lead to good outcomes. Since that is the case, permanent member states who are of the opinion that a resolution would do more harm than good, should be able to prevent such resolutions from being adopted.
5.3. Legitimacy of the Security Council
It can be argued that the price of the excess of the mandate under Resolution 1973 has been paid by Syrians.157 As of November 2012, thousands of people had been killed during the Syrian civil war. The three draft resolutions that were prepared in October 2011, February 2012 and July 2012 regarding Syria, were vetoed by China and Russia.158 One of their arguments for using their veto power against these resolutions was that the resolutions would have intensified rather than calmed the situation. With their vetoes, China and Russia blocked the Security Council from taking action.
154 Marc Weller (ed), ‘The Oxford Handbook of The Use of Force in International Law’ (OUP 2015) 392. 155 Human Rights Council, ‘Report of the International Commission of Inquiry on Libya’, A/HRC/19/68 (2 March 2012), available from https://digitallibrary.un.org/record/766468.
156 Sarah Brockmeier and others, ‘The Impact of the Libya Intervention Debates on Norms of Protection’ (2016) 30 Global Society 116.
157 Ramesh Thakur, ‘R2P after Libya and Syria: Engaging Emerging Powers’ (2013) 36 The Washington Quarterly 61.
