The Echo of Quiet Voices. Liechtenstein’s Veto Initiative and the American Six Principles

On 8 September 2022, the US Permanent Representative to the United Nations, Linda Thomas-Greenfield, announced her government’s intention to support efforts to reform the UN Security Council. The issue of exercising the right of veto on one’s own behalf thus gained unprecedented momentum.

Of “laugh tests” and “get-out-of-jail-free cards”

The trigger was the Security Council’s failure to adopt S/2022/155 of 25 February 2022 due to the veto of Russia. It was a special constellation, because the draft introduced by the US and Albania dealt with a war of aggression by a permanent member of the Security Council itself. Russia tried to explain its veto with the already familiar bogus arguments that would already fail Thomas Franck’s famous laugh test if the circumstances were not so worryingly disturbing. In a Joint Statement issued the same day, Thomas-Greenfield, said on behalf of 51 states that Russia had abused its power by vetoing the resolution. In an op-ed in the Washington Post, Samuel Moyn called the exercise of the veto playing the “get-out-of-jail-free card“. He stressed that all Permanent Members possessed a “stack of never-get-indicted cards” they can never run out of.

However, Russia did not completely escape the indictment. The resolution was made a litmus test in the UNGA: “Vote yes if you believe Russia should be held to account for its actions. Vote yes if you believe in upholding the UN Charter and everything this institution stands for,” said Thomas-Greenfield in her address. In so doing she gave the vote the dimension of a profession of faith that went beyond the text of the draft. Recalling the famous Uniting for Peace Resolution, the UNGA adopted A/RES/ES-11/1 in an emergency session on 2 March 2022.

A history of reform attempts that (nearly) came to nothing?

This development shows that one of the most notorious problems of the UN Charter’s architecture has once again become virulent in a way that could not be more cynical. Regardless of the fact that already existing international law may limit the exercise of the veto, there has been no shortage of proposals for reform. Given its privileging effect, however, it is hardly surprising that especially permanent members prevented any reform efforts. The Razali Plan presented in March 1997, according to which the Security Council should be expanded by five permanent and four non-permanent members, did not find a majority. A bid by the G4 states for a permanent seat on the Security Council without veto power was equally unsuccessful. In 2013, France and Mexico submitted a proposal according to which the permanent members “would voluntarily and collectively undertake not to use the veto” in cases of mass atrocities. Among the 105 signatories is no further veto power.

Also in 2013, the Accountability, Coherence and Transparency Group (ACT-Group), an association of 27 smaller states, took up the failed initiative of the so-called “Small Five”. This initiative called for more transparency at the UN but was then withdrawn because of a “sense of unease“. The ACT developed a “Code of conduct regarding Security Council action against genocide, crimes against humanity or war crimes” (A/70/621 and S/2015/978). By 10 February 2022, the code was signed by 122 member states, including the permanent members France and the UK.

The quiet voice of Liechtenstein

During a state visit to Germany, Liechtenstein’s head of government, Daniel Risch, emphasised on 17 May 2022 his country’s ambition with the so-called veto initiative to do “a little more than can be expected of us because of our small size”. The language metaphor is applicable on several levels, as the initiative should first of all prevent the veto in the Security Council from being the last word in the matter.

Liechtenstein’s “quiet voice” in the person of its Permanent Representative to the UN, Christian Wenaweser, was heard. On 26 April 2022, the UNGA adopted A/RES/76/262, a document that should not be underestimated in its importance. The UNGA decided that the its President should “convene a formal meeting … within 10 working days of the casting of a veto by one or more permanent members of the Security Council.”

One could now argue that the actual impact of the veto initiative will be small. After all, all Security Council members, including the P5, have been making public statements on their voting behaviour for a long time. Liechtenstein, on the other hand, is aiming to give the UNGA an official opportunity to comment, as it says on its official Twitter channel. This would also lean towards “A Duty to Give Reasons in the Security Council”, as argued for by Daniel Moeckli and Raffael Fasel in 2017. On the other hand, however, not even the veto initiative can make concrete demands on the content of these declarations. In essence, the initiative is an extension of the Uniting for Peace Resolution, to which the initiative indirectly refers via the ICJ’s Wall Opinion.

Regardless of these concerns, the Danish ambassador to the UN, Martin Bille Hermann, speaking on behalf of the Nordic Countries, saw “History […] being made today,” when China and the Russia had to explain themselves to the General Assembly for the first time on 9 June 2022 for vetoing new sanctions against North Korea. Richard Gowan, however, as he pointed out on Twitter, stressed the complexity of “veto diplomacy”. He indicated that France, the UK and the US would “often table resolutions in the UNSC knowing that China and Russia will veto them”, to make them appear in a bad light. The latter would then argue that “the P3 are not serious about diplomacy.” Still, an automatic referral to the General Assembly of any veto increases the political costs of the permanent member exercising its veto power and might lead to more careful use of the veto power.

The US-American six clear principles for responsible behaviour

With its veto initiative, Liechtenstein keeps its finger on this structural weakness of the Security Council and sustains the pressure on the international community to solve the problem by making the veto policy of the permanent members of the Security Council open to referral by the UNGA. And quite obviously, Liechtenstein’s “quiet voice” was heard and even amplified not only by the UNGA but also by the US. The “Remarks by Ambassador Linda Thomas-Greenfield on the Future of the United Nations” make direct reference to Liechtenstein’s initiative. The “six clear principles for responsible behaviour for Security Council Members” are remarkable. In fact, this remarkableness begins with the first sentence that the US immediately prefaces the presentation of the principles: “We have not always lived up to them in the past – but we are committing to them going forward.” The Russian veto thus proves to be an attack not only on the legitimacy of the Security Council as such, but also on its permanent members who are now questioning their own veto policy.

The six principles speak a refreshing language in the tradition of the ACT-Group. The US emphasises that no member of the Security Council can claim to have a “perfect record” when it comes to strict compliance with the UN Charter. The current “exceptional moment”, however, “calls for renewed leadership in the Charter’s defense“ (Principle 1). Pragmatic cooperation across bilateral disputes is needed to counter threats to international peace and security (Principle 2). With Principle 3, the US declares that it will generally “refrain from the use of the veto except in rare, extraordinary situations.” In this spirit stands already Thomas-Greenfield’s earlier rebuke to the Russian representative Vasily Nebenzya 25 February 2022: “you can veto the resolution – but not Member States’ voices, the truth, or principles, nor can it veto the Charter or the principle of accountability.” Principle 3 emphasises that “any Permanent Member that exercises the veto to defend its own acts of aggression loses moral authority and should be held accountable.” Furthermore, the US intends to take a leadership role in the defence of human rights in its capacity as a Permanent Member of the Security Council (Principle 4). It announces to “enhance cooperation, inclusivity, and transparency”, stressing that the Council carries out that mandate on behalf of the UNGA (Principle 5). The UNGA resolution accepting the veto initiative speaks a comparable language, recalling that UN member states “have conferred on the Security Council primary responsibility for the maintenance of international peace and security, and agreed that in carrying out its duties under this responsibility the Security Council acts on their behalf” (Art. 24(1) UN-Charta). Unsurprisingly, however, no “responsibility argument” in the fashion of Costa Rica (2001) can be found. Principle 6 announces the efforts of the US to advance the reform of the Security Council. A corresponding political will had already been demonstrated by the veto resolution adopted with the support of Liechtenstein. The Security Council should “better reflect the current global realities and incorporate more geographically diverse perspectives”. Instead of defending an “unsustainable and outdated status quo”, the Permanent Members “must demonstrate flexibility and willingness to compromise in the name of greater credibility and legitimacy.”

What’s next?

Developments so far therefore seem to indicate that the “reform” of the veto will take place, if at all, within the existing system of the UN Charter. With the USA, another voice has now been raised calling for restraint in the exercise of the veto. This is an indirect continuation of the French/Mexican push from 2013 and the ACT’s Code of Conduct. However, one must continue to ask why the US is yet to officially support these two initiatives on the responsibility not to veto. If one wants to play the devil’s advocate, one could even claim that the six principles are meant to take the wind out of the sails of reform initiatives. In accordance with the Latin principle “res non verba”, it remains to be seen how the US will live up to its ambitiously and very broadly formulated goals. For the declaration is not legally binding and suffers in the same way from the shortcomings of all evolutionary approaches identified by Nollkaemper: the Permanent Member concerned of atrocities, would have to agree that the acts in question fulfil the accusation. Past practice in the Security Council has shown that the permanent members often develop innovative approaches in this regard. The formulation of fine-sounding goals should therefore have been completed by a concrete action plan

It remains to be seen whether the Liechtenstein initiative and the Six Principles of the US will have a (lasting) impact on the veto problem. We cannot expect a revolution, at best a slowly progressing evolution that makes the use of a veto at least in need of proper justification. I believe that both the Liechtenstein Initiative and the Six Principles formulated by the US complement the existing reform approaches well and could, if applied in good faith, pave the way for a “meaningful procedural reform”.