Three Options for the Veto Power After the War in Ukraine

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If any good can come out of the war in Ukraine, it should be a resumption of the decade-long process in the United Nations aiming at reining in or even removing the veto power of the permanent members of the Security Council. President Zelensky’s recent call for reforming the veto system may help to create the necessary political momentum.

Is restricting the use of or abolishing the veto power likely to happen? Perhaps not. The separate paths taken by the Russian Federation, China and ‘the West’, even apart from the current war, make any successful multilateral process an unlikely prospect – let alone a reform of the veto arrangement in the Security Council.

But think again. With the vetoes that precluded the Security Council from acting in relation to the conflicts in Iraq, Syria, Georgia, Crimea and Gaza and so on that are still fresh in our memory, the war in Ukraine is yet another unsettling demonstration of the adverse effect of the veto power.

It was never conceivable that the allocation of so much legal power to a small group of states would last forever. The question is how long the international community should further wait for a push to overhaul this situation. For what fault line in human history should we wait for this to happen? The war in Ukraine is not the most devastating war since World War II. But should we really wait for a third world war for the international community to seriously push for a reform of the Security Council.

In this post I sketch three ways forward for the role of the veto: overruling the veto, reining in the use of the veto, or abolishing the veto. Before addressing these options, two preliminary questions are in order: why is there a need to reform the system, and is there anything worth preserving?

Why reforming the veto system?

While the need to reform the veto system may seem a matter of commonsense, it is helpful to articulate the key reasons, since these will provide the benchmarks for success of reform. Among the many arguments as to why the veto system should be overhauled, from a legal perspective two reasons stand out.

The first reason is that the veto power is incompatible with the idea of a rule-based international order. Samuel Moyn recently phrased this aptly: ‘We might not tolerate a criminal law that openly provided the most powerful members of society a get-out-of-jail-free card. Yet through their veto on the Security Council, certain states have a stack of never-get indicted cards – and they can never run out.’   

The fact that states do not always perform their international obligations is a reality and we have learned to understand that this can be compatible with a functioning system of international law. But a system where the most powerful states can act in contravention of the most fundamental rules of the international legal order and can, if they see fit, shield themselves from legal consequences through a legal procedure makes a mockery of the idea of a rule-based international order.

The second reason for reform is to improve the system of collective security. The veto has all too often served to allow military actions that were at odds with the main purpose of the United Nations: the maintenance of international peace and security. Likewise, the veto has made it impossible for the Security Council to fulfill its primary responsibility to maintain international peace and security.

The veto of 26 February 2022 shows that the veto system is problematic for the two above-mentioned reasons. The use of the veto served to shield the Russian Federation from the legal consequences of a war of aggression. This was simultaneously incompatible with a rule-based order and put the maintenance of international peace and security out of reach.

Are there reasons to preserve the current system?

Before considering options to rein in or abolish the veto power, we should first reflect on whether there is anything in the system that should be preserved.

Three arguments may be advanced in favor of the current system.

The first argument is that, somewhat counter-intuitively, the veto power would in certain cases actually help to create stability and maintain international peace and security. This argument builds on the proposition, recently articulated by Ingrid Wurth, that peace and security do not depend on the prohibition of the use of force, but on the balance of power between great powers. If so, the argument can be made that great powers should have the possibility to restore the balance of power, even when that requires the use of (military) force. The veto power then would be instrumental to the achievement of that objective. The Russian invasion of Ukraine can then be seen as an attempt by the Russian Federation to confirm its claim to a sphere of influence, and to a balance of power under the UN Charter, protected by the veto power.

This justification of the veto power is problematic, however. It would introduce an additional (unwritten) exception to the prohibition of the use of force. And more fundamentally, it is implausible that the veto arrangement has in any way contributed to the short- or long-term maintenance of international peace and security as stipulated in art. 1 of the UN Charter. The (threat of the) veto in cases like Czechoslovakia, Hungary, Afghanistan, Georgia, Crimea, Iraq, Syria, Gaza and now Ukraine benefited the individual interests of the permanent members (and their allies), and certainly not the collective interest of maintaining international peace and security.

The second argument that may be advanced in favor of the present system is that the veto power has prevented the Security Council from authorizing the use of force against a permanent member. Thereby it has helped to prevent a war between the permanent members, and thereby a third world war.

While the origins of the veto power may support this reading, the events relating to Ukraine have demonstrated that this argument has now become unpersuasive. The single reason that explains why permanent members have not resorted to force is the fact that the Russian Federation possesses nuclear weapons – not its veto power. Of course, there is an obvious connection between nuclear weapons and the veto power, but we should not conflate the two by considering nuclear weapons to be a justification for the veto power.

The third argument is more pertinent and is that with the veto power in place, the Security Council is able to perform useful functions, and if the veto arrangement were to be abolished, the ability of the Council to continue to perform such functions may be impaired – because the current permanent members may drop out of the process or because new voting procedures would impose even more barriers because of the multiplicity of (diverging) interests to be accommodated.

I will discuss this point more fully below. But this argument is an important reminder that any reform process of the Council is not an end in itself. The aim should be to reach a solution that keeps all key actors on board while improving the functioning of the Council.

First option: Declaring the veto illegal

The first path forward is to attach consequences to the by now relatively well-established argument that there are legal limits to the use of a veto by a permanent member. The main point of such arguments, summarized by Charles Jalloh on opinio iuris, is that a veto in relation to acts (whether acts of third states or their own acts) that violate ius cogens norms can be illegal.

Even if we accept that position as correct legal position, this does not bring us very far. For the question is what the legal consequence of such illegality. This question is momentous significance for the functioning of the Council, and ideally would be addressed by the International Court of Justice, as has for instance been suggested by Jennifer Trahan.

For now, three points can made. First, it seems difficult to argue that an illegal veto itself would be a nullity, and as such would not stand in the way of a valid adoption of a resolution by the Council. For it is not the veto itself that would contravene ius cogens, the veto rather would block a response to acts in violation of ius cogens. The veto  than to some extent can be compared to rules of immunity in their relationship to ius cogens  as discussed here by Stephen Talmon. Hence, an illegal veto would still be a veto.

Second, even if that argument could doctrinally be made, it is more than a little doubtful that the other permanent member would have much appetite for relying on the (alleged) nullity of the veto, since opening that door may subject them too to that possibility. That would be all  the more risky for them if the voidness of a veto would not only apply to vetoes relating to their own illegal conduct but also to vetoes cast to protect the interest of other states (say Israel) that may engage in ius cogens violations.

The question of illegality of vetoes, for as long as we have the veto, certainly should be further considered. But for the above reasons it is highly doubtful whether this would be able to prevent vetoes like the one case by the Russian Federation on 26 February.

Second option: Restraining the use of the veto

A second option to limit the adverse impacts of the use of the veto is to rein in the veto power within the current UN framework, without resorting to an amendment of the Charter.

There are currently two paths on the table. One is a much stricter application of art. 27(3) of the UN Charter, which requires that permanent members abstain from casting a veto in relation to decisions under Chapter VI when they are a party to a dispute. As explained in a blog on Lawfare, permanent members involved in a dispute have on numerous occasions resorted to the veto, and moreover the other permanent members in such cases did not object to the veto by invoking art. 27(3) – presumably in order to protect the space to engage in this practice in future cases.  Some of the drawbacks of the veto power could easily be averted if the permanent members simply abided by art. 27(3) of the UN Charter.

The second possible path within the current framework is provided by the Political Declaration on Suspension of Veto Powers in Cases of Mass Atrocity that was tabled in August 2015 by France and Mexico and the Code of Conduct proposed in the same year by the Accountability, Coherence and Transparency Group (ACT). Both documents propose a voluntarily (hence, no amendment of the Charter required) agreement between permanent members to refrain from using the veto in situations of mass atrocities. Such texts could also include a commitment to do so in cases of breach of peace and of aggression. Over 100 states have at various times expressed support for these texts. We will have to see whether that once-expressed still exists in the current situation, but there is in principle enough political basis for pursuing this path further.

However, these ‘within the Charter’ options have one obvious drawback. They offer few guarantees that in the future a permanent member would not rely again on its veto right to shield itself from legal consequences. A decision that a resolution is subject to art. 27(3) would still be subject to a vote by the Council to which the veto applies.  Similarly, the Political Declaration and the ACT Code of Conduct would only work if the permanent member in question agreed that its own contested acts constitute, for example, an aggression – which, as current events demonstrate, is not likely.  

The ACT Code of Conduct suggests as an alternative that any decision on the existence of a situation of mass atrocities be taken by the UN Secretary-General under art. 99 of the UN Charter. But giving the Secretary-General such a political role would, certainly in grey areas, require political choices that would threaten the impartiality and authority of the office, both of which are vital to fulfillment of the tasks that the Charter assigns to it.

These options thus would neither deliver on the need to ensure a more rule-based system, nor hold much promise that the collective security system would work better.

Third option: Amending the UN Charter

The more fundamental response to the flaw(s) of the veto power is a Charter amendment based on art. 108 of the Charter. This process would not need to start from scratch; it could build on the political process that has been ongoing in the UN for decades.

It is quite clear that the objective to remedy the veto problem should be addressed altogether with a second major aim of Security Council reform: widening the membership of the Security Council. By increasing membership from Asia, Africa and Latin America, the Council should become more representative of the multipolar world of 2022. There has been broad support for this move, be it with several variations in proposed numbers of new members and allocation over permanent and non-permanent members. Membership expansion would be supported by the African Group, CARICOM, the G-4, the L. 69 group, the Uniting for Consensus Group, the Arab Group and the Nordic states.

The permanent members have at various times indicated that they may not oppose an expansion of (non-permanent) Security Council membership, for instance during General Assembly debates in 2020. Whether this will translate into actual willingness to agree to concrete proposals remains to be seen – it is not for no reason that the process for Security Council reform has stalled. But nonetheless, there appears to be a political basis for reigniting the process towards extension of membership.

The more difficult part is to combine the extension of membership with the abolishment of the veto power and its replacement with a different voting system. Statements at the UN General Assembly suggest that a substantial number of other states appear to support the removal of the veto. This includes the CARICOM, the L.69 group, and the African Group.

The key question of course is how to get the permanent members behind a proposal along these lines. So far in the UN negotiations the United States, Russia and China have always opposed any proposals to rein in and to eliminate their right to veto, while France and the United Kingdom are open to reining in its use but not to removing it.

However, we should not presume that this stalemate will last forever. Key in any process towards change will be the General Assembly. The willingness of the permanent members to move away from the current system may well depend on the ability of the General Assembly to act and take over some tasks of the Council – as happened after the Russian veto of 26 February 2022, when over 140 states condemned the aggression, implicitly rejecting the Russian position that it is only for the Council to make a determination of aggression. Much will therefore hinge on the ability of member states of the Assembly to find a common position to put pressure on the permanent members.

We should not hold our breath; it took over 60 years after the Uniting for Peace Resolution for the General Assembly to step in again in a situation where the Security Council could not act. Moreover, the Assembly itself is heavily divided politically along the fault lines of the multipolar international society. And of course, the powers of the Assembly will always be more limited than those of the Council.

Nonetheless, with a growing number of states unhappy with the power and the inaction of the Council, the possibility of the Assembly stepping in where the Council is blocked is a real one, which may help to persuade the permanent members to give up the status quo.

Whether a new arrangement without the veto power will eventually be acceptable for the permanent members will of course depend on the substance of such an arrangement, in a newly composed Council, involving a larger number of states. What that arrangement could look like is a matter for another time. But what is clear is that the new set-up must safeguard the interests of the current permanent members to stand a chance.

For the West, any new arrangement would have one obvious advantage. Removing the possibility that the Russian Federation (and perhaps China) relies on the veto to shield itself from the legal consequences of (and even to justify) a conduct in violation of the Charter would be a high-value outcome of a political process, for which they also should be willing to give up on something.

At the same time, for China and Russia any new arrangement would need to provide protection against domination by Western states that all too often have pushed a Western liberal agenda through the Council. This may well be secured by connecting a change in the veto power with larger membership from Asia, Africa and Latin America, acting as counterbalance to Western interests.

Precisely for this reason, it cannot be presumed that a new composition and a new voting procedure will in all cases enable the Council to perform its responsibility to maintain international peace and security more effectively. A Russian veto may be replaced by a (qualified) majority of Security Council members that oppose a particular resolution. The substantial number of states that did not condemn the acts of the Russian Federation also signals that new majorities may not make things easier.

However, that is the reality with which we must live in our actual multipolar international system. Charter amendments will not remove colliding strategic interests of (coalitions of) states. But the result surely cannot be worse and less legitimate than the current situation. By removing unilateral powers to shield states from the legal consequences of an aggression, it may well help to make the international order more rule-based and to advance the common interest of maintaining international peace and security.

***

The idea of reining in let alone removing the veto power may seem radical and idealistic. Generations have been raised in a world where the veto was a given. But was it ever conceivable that the legalization of so much power for a small group of states should not forever? Both the ideal of a rule-based international order and the overriding importance of a functioning system for the protection of international peace and security suggest that a process to change the current regime be initiated sooner rather than later.

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Julia Kapelańska-Pręgowska says

April 11, 2022

Dear Professor Nollkaemper,

Thank you a lot for this informative and constructive post. It very well represents concerns about the legitimacy of the SC, as well as of accountability for a crime of aggression (and other violations of jus cogens) shared by many international lawyers.

Regarding the third option, a question arises of its current feasibility, as amendments to the Charter under Article 108 and 109 can only come into force when ratified by two thirds of the Members of the UN, including all the permanent members of the SC. This option of consensual reforming of the SC is therefore impossible now, and probably as long as there will be no major change of the Russia's power-holder, which may well be 10 years or longer. Justice delayed is justice denied. While the reform of the SC is definitely necessary, as the ‘Four Policemen’ concept does not fit a contemporary world, it will surely not be a fast track, because of the Gordian knot of the UN Charter that vested too much power in the permanent members.

Tsvetanka Lozanova says

April 12, 2022

Dear Professor Nollkaemper,

Thank you for your in-depth, realistic and balanced analysis of the vote power of the permanent members of the Security Council.

Could you please comment on the possibility of increasing the number of permanent members of the Security Council after the war in Ukraine?

John Morss says

April 19, 2022

Just to pick up on Julia's point on this very timely and informative post, yes the UN Charter is a Gordian knot and that's a clue to how to fix it! It's about constituent power -- asserted by 'the peoples of the United Nations' in order to 'accomplish these aims' -- which aims, as set out in Chap I, must guide the actions of the Security Council (art 24(2)) but which patently, have not done so over decades; in practical (ok, utopian) terms, this means assertiveness by the General Assembly. If there is any hope "it must lie in the proles"...