By- Deshna Kadali & Aditi Sadhu
Recently, India condemned the veto practice which was used to block terrorist listings at the UNSC, contrary to its peacekeeping mandates and commitment to tackle terrorism. Prior to this, India also raised its concerns regarding the lack of resolution of the Russia-Ukraine war by the UNSC as the unabated conflict enters the third year.
Russia continues to impose a systematic co-optation by violating the UNSC resolutions passed at security briefings on Ukraine, a prime example of how a P5 nation wields their veto power to torpedo resolutions incongruent with their national and foreign policy interests. The lack of a resolute response due to the use of veto has been called out by Japan at a G-4 meeting, indicating the UNSC’s failure to fulfil its responsibility.
Time and again, the UNSC has been deemed ineffective due to the Russian veto which has blocked 152 resolutions so far. It has been morally implausible on account of how Russia blocks its own act of obvious and prima facie aggression, allowing the avenue for Russia to be a judge in its own case. As much as it brings forward the erosion of natural justice, it blotches the UN’s moral foundations with mistrust and skepticism. The veto system is being propelled time and again as a tool of abuse to block the UNSC mandate of preserving peace and security, cloaking the perpetrators of the mass atrocity crimes with impunity and reducing accountability.
This explainer blog presents a summary of the assessment of the veto scrutiny conundrum so far by revisiting the Russia-Ukraine war. Traversing the existing scholarship and opinions of jurists, the authors seek for our readers to gauge an understanding of the foundational points of the existing discourse, specifically the scope and powers of the P5 in the UNSC.
Onset of the War
The greatest conventional military attack since World War II is Russia's invasion of Ukraine. Since the beginning of the invasion, almost 2.8 million Ukrainians have fled their nation, contributing to the growing number of civilian casualties. Strong outcry against the invasion has been felt around the world, and the response from everyone has been remarkably cohesive, quick, and increasingly brutal. The inability to mount a more than symbolic denunciation of an act carried out by a P5 member is, at best, reckless and shows that the system is fundamentally incapable of fulfilling its mandate.The annexation has sparked the debate on the inadequacy of action and incapacity of the UNSC to secure respect for the rule of law in the global administration of peace and security. This status implies that retention of aggression is hierarchically superior to other rules of International Law proving problematic from a legal standpoint. Therefore, no decision by the Security Council may deviate from this principle and by not condemning an act of aggression deviates from this principle.
In lieu of this, the US ambassador to the UN has stated that ‘any Permanent member that exercises the veto to defend its own acts of aggression loses moral authority’. According to Article 27, paragraph 3 of the Charter of the United Nations, which comprehensively lays down that – a party to a dispute shall abstain from voting – continues to be flagrantly disregarded. The exercise of Article 27(3) is fleetingly scarce and an example for the same would be Russia’s veto in a Security Council resolution condemning the unlawful annexation of four regions of Ukraine. The Draft Resolution that was circulated by the United States and Albania was supported by 10 of the 15 member states while four members abstained (Brazil, China, Gabon, India).
"The Security Council cannot remain silent when basic principles of our international rules-based order are trampled by military boots and squashed by tanks," the Austrian ambassador to the UN cautioned in a speech to the UN General Assembly.
Bearing a mirror-reflection of the power dynamics at the end of WW-II, the pressing question rose with eyes on the deprivation of Russia’s P5 status for militating jus cogens norms and going blatantly astray from its vested veto responsibilities. The foreign minister of Ukraine demanded the viction of Russia from the UNSC and the UN as a whole. Signalling the need for UNSC reform amidst political and procedural challenges, Western powers have pored through UN procedural rules to ensure Russia is unable to block Security Council meetings. They have turned to another UN body — the 193-member General Assembly — to seek condemnation of the Kremlin's actions. The UN General Assembly is vested with this authority, particularly in accordance with the Uniting for Peace protocols. The unchanged composition and use of veto in various degrees has sparked debate among member states regarding the urgent need for change.
Pitting vested powers against vicious interests
The exercise of veto to safeguard one’s own evidently illegal activities accounts for an abuse of right, bamboozling the general principle of good faith. Russia is a state party to the ICCPR, which pledges to fulfil its obligations under the UN charter and its treaty-based human rights commitments. According to its interpretation, ‘States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6’. The need to respect the right to life and refrain from aggression is derived from a mixture of legal obligations included in both the ICCPR and the UN Charter.
The implication is that a legitimate Security Council draft resolution calling on the aggressor to stop this illegal activity must not be vetoed. States frequently argue that the legal justification of abuse—a sign of bad faith—will prevent a veto that uses the right to veto for an obviously illegal purpose, such as stopping a Security Council decision that would have violated jus cogens by the vetoing state's own obvious prima facie aggression. Therefore, an abusive veto that is interpreted as an abstention cannot stop a Security Council resolution that is presented under Chapter VI from adopting a resolution denouncing an act of aggression. If such unilateral obstruction is allowed to continue, it will only supplement the creation of such mockery on the crimes covered under the Responsibility to Protect which are prosecuted by the Rome Statute.
Jennifer Trahan, Professor of Global Affairs at NYU, has suggested that an abusive veto should be ‘void’. To consider the abusive veto as an abstention would be consistent with the reasoning behind Article 27(3). Furthermore, in order to achieve the goals of Article 27(3), as previously indicated, the heightened position of the prohibition of violence as jus cogens provides an additional legal rationale in support of recognising a veto that shields one's own aggressiveness as an abstention.
While there remains evidence of limitations on the use of veto power under International Law, existing concern grows that the Security Council has found it increasingly difficult to carry out its work in accordance with its mandate under the Charter with the increase in veto use. This merits the need for transparency and accountability in the system. Currently, other than the guiding principles of the UN Charter and relevant resolutions, there are no codified international laws specifically targeted at regulating the veto or penalising an abusive one. The UN Resolution implementing the new veto scrutiny procedure provides that the President of the General Assembly must convene a formal meeting of the Assembly within ten working days of a permanent Security Council member having exercised the veto.
While its determination rests rightfully with both the UNSC and the ICJ, establishing defined limits in context of mass atrocity crimes, specifically genocide in this case shall posit a matter of serious and urgent adjudication. Recommendations from Professor Trehan’s understanding for the legal restraints to a veto, the existing discourse traverses on the base recommendation of how an advisory opinion from the ICJ that specifically details on mass atrocity crimes can facilitate affirmative change. This was also recommended by the Parliamentary Assembly of the Council of Europe with explicit reference to Russian vetoes as a potential avenue for resolution.
Conclusion
While UNSC members continue to call out the grave violations and demand the complete withdrawal of Russian troops, the best solution is an advisory opinion that emphasizes how the veto’s blocking potential can have a disparaging impact on the fulfillment of the UNSC mandate and states’ responsibility to maintain compliance with international law, specifically the Responsibility to Protect that caters to the four core crimes under the Rome Statute.
An integrated application of R2P with the 1949 Geneva Conventions and allied protocols can help stimulate a fortified legal base when formulating the legal restraints, whether through advisory opinion or protocol to prevent an abusive veto. While it remains a political instrument, its formal recognition by the ICJ shall lend it credibility in application and integration into conflict-resolution mechanisms.
Well written!