A Call to Amend the Security Council Veto

In the aftermath of the Second World War, the global powers came together to create an intergovernmental organization, the United Nations, that would facilitate diplomacy and “save the world from the scourges of war.” The spirit of the UN Charter was to create an international community that would prevent a disastrous third world war in the nuclear age and establish legal procedures and forums to address the world’s darkest problems. Since then, the United Nations has saved countless human lives and acted as a mechanism for preserving and building peace. However, there are many significant structural problems in the institutions of the international community. Multilateral humanitarian intervention, or the deployment of a multilateral peacekeeping force to halt genocide and crimes against humanity, is one of the most controversial actions of the UN. One should be critical of the effectiveness of Article 27 (3) of the UN Charter which allows the permanent members of the Security Council to veto resolutions for this type of military intervention.

The victors of the war had the most influence in forming the laws for this new international agency and for establishing new diplomatic norms. For example, the Allied powers organized the Nuremburg Trials to hold leaders who committed genocide and crimes against humanity during the war accountable. But because the winners, the Allies, were holding the trials, only Nazi leaders were tried for war crimes. The Allied powers also created the legal structure for the Security Council, and the US especially advocated for the veto power because it was an added protection of American domestic sovereignty. But the veto power has continually inhibited the functions of the Council, especially humanitarian intervention, and conflicted with the spirit of the UN Charter.

Multilateral humanitarian intervention exists to protect those who are suffering from the worst of crimes, crimes which are perpetrated by the victim’s own state. And while the UN recognizes the sovereignty of each of its member states and functions in an anarchic international system with no higher enforcement, if a state were to begin systemically exterminating its own people, the UN has the authority under international law to intervene with peacekeeping forces. Thus, multilateral humanitarian intervention is one of the two exceptions to the UN Charter’s ban on the use of force. The deployment of peacekeeping forces is authorized by the Security Council, who is bestowed with this authority because of Article 42 of the Charter. The permanent five (P5) members of the Security Council, the U.S., the U.K., Russia, France, and China, all have veto power when considering resolutions that authorize multilateral humanitarian intervention. Ten rotating non permanent members also vote on related issues and nine affirmative votes are needed to approve a resolution, but one veto from any of the P5 stops it from passing. This presents a problem when factoring in geopolitics and international relations into how the Council votes.

If a P5 nation decides that an act of humanitarian intervention would not be in their interest domestically, or in the interest of their allies, they can stop it from happening. This hypocrisy has been cited as a reason for a failure of preventing or halting genocide in the Former Federal Republic of Yugoslavia, Rwanda, and Syria among other cases. Some would argue that multilateral humanitarian intervention should rarely ever be used and that the veto power encourages the Council to keep this type of resolution as a last resort. However, because this intervention is only ever considered in emergency situations, delay only means death for those affected. The Security Council veto promotes inaction by allowing a select few states the ability to act in their own interests at the expense of protecting human life.

It’s also important to remember that humanitarian intervention, which is a use of force, is only allowed as an exception under international law. One of the fundamental purposes of the UN is to prevent war and thus the UN Charter bans the use of force in Article 2(4). This law states that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”. Yet, the UN also codifies two major exceptions. The first is outlined in Article 51, which makes an exception for cases of individual or collective self-defense as no state would have signed a treaty that prohibited them from striking back after an attack. The other exception, outlined in Article 42, allows the use of force with Security Council approval if it is conducted in the spirit of Chapter V or “maintenance of international peace and security”. The UN gave themselves the power to intervene in another state if international peace is at stake. The exact law that details the structure of the Security Council veto on this type of force is enumerated under “Article 27 (3)…[which] establishes that all substantive decisions of the Council must be made with ‘the concurring votes of the permanent members’”; it also requires 9 affirmative votes out of both the 5 permanent and 10 rotating members to move forward with multilateral action, but the P5 are the only states with the ability to perpetuate inaction by dismissing a draft resolution. Historically, Article 27 (3) becomes problematic when most members (9 or more) will agree on a resolution and then one P5 state halts the process.

Syria has become a visceral example of how gridlocked the Security Council can become. The Syrian conflict began in 2011 when the revolutions of the Arab Spring reached Syrian borders. Assad’s regime began using violence against protestors and turmoil swelled. A civil war began, drawing in many other countries and ravaging the country for the last decade. According to the Human Rights Watch “World Report” that covered the events of 2018,

“The Syrian Observatory for Human Rights (SOHR), a monitoring group based in the UK, estimated the death toll since the start of the war to be as high as 511,000 as of March 2018. Years of relentless fighting left 6.6 million displaced internally and 5.6 million around the world, according to the United Nations High Commissioner for Refugees (UNHCR)”.

Despite the desperate circumstances and the mass migration into Europe, the Security Council was again deadlocked. Russia supported Assad’s regime and vetoed any military intervention. The Syrian people have since suffered from the following human rights violations, described in the The World Report, such as chemical weapon attacks, arbitrary detention, and forced disappearances conducted by Assad’s government, as well as indiscriminate attacks by a Syrian-Russian alliance, persecution by non-state armed groups, deaths and displacement from Turkish military offenses, and violations by US-backed and US-Led coalitions; all of these human rights issues contributed to the disastrous displacement crisis. Because Russia has domestic interests in backing Assad, the Security Council remains deadlocked and no legal military intervention can occur. Instead, other illegal uses of force are occurring, and Assad’s regime continues operating with impunity. In a July 2020 UN Report, the Commission of Inquiry on Syria found “fresh evidence of war crimes committed by all sides in the Syrian Conflict”. The conflict and humanitarian disaster continues on. Hundreds of thousands of lives have been lost and entire cities have been displaced as the veto power halts legal international help.

There are various proposed legal Security Council reforms including: abolishing the veto and then expanding permanent membership to five other states or supporting the resolution “Responsibility Not to Veto” where P5 members’ veto power would not apply to military intervention related to genocide prevention. While these propositions have their own faults, a change to the legal structure of the Security Council is needed to prevent further inaction.

One proposed solution is to abolish Article 27 (3) and expand permanent membership to five other states from differing regions of the world. The reasoning behind this solution comes from a historical analysis of the UN structure. During the creation of the UN in 1945, the Council consisted of five permanent members and only six non-permanent members because the total number of members of the UN was only 51. Following decolonization, the number of states in the UN grew and by 1963, there were 113 member states. In response, an amendment to the Charter was made and went into effect in 1965 to add 4 more elected seats of nonpermanent members; this expanded the total number of members in the Security Council to 15. But now, the UN has 193 members and the Charter hasn’t been amended in 55 years; there are no permanent member countries from Latin America, Africa, or Southeast Asia. One solution is to expand the number of states from 15 to 20 and abolish the veto power. This would provide more representation to other parts of the world and reflect the global changes in international relations that have occurred in the half of a century since the last amendment. In addition, this idea could help solve the gridlock problem caused by the veto, which realistically occurs when all countries are in agreement except for one P5 state. The complications associated with this resolution lie in selecting the states that would form this new Council. One scholar described the frustration of diplomats trying to pass Security Council reforms when he states, “Beyond the idea of expansion, any consensus falls apart, with fierce regional rivalries over who might gain new permanent seats making any changes problematic, if not impossible”. The decision of which states can be on the new Security Council has also produced gridlock in moving forward with reforms.

Another possible solution is the acceptance of the “Responsibility Not to Veto” or the RN2V initiative which is associated with the Responsibility to Protect (R2P) doctrine. R2P was a paradigm shift in the early 2000s that changed how the international community viewed state sovereignty when faced with atrocious human rights violations; it was in reaction to the failures of the UN to stop the genocides of the 90s, including Rwanda and Srebrenica. R2P claims that the international community has a responsibility to protect citizens of other countries if their states begin to commit egregious human rights violations against them; it thus views sovereignty as a responsibility which could be revoked by the international community on the grounds that the state is committing a crime so atrocious and offensive, they have disrupted international peace. The RN2V is an initiative to eliminate the deadlock of the Security Council veto so that humanitarian intervention can be effectively applied. More specifically, the RN2V requires that “‘[t]he Permanent Five members of the Security Council should agree not to apply their veto power, in matters where their vital state interests are not involved, to obstruct the passage of resolutions authorizing military intervention for human protection purposes for which there is otherwise majority support’”. This initiative has met resistance from most of the P5, but has actually found support from France. The Official French diplomatic website states,

“…in 2013 France launched an initiative proposing a collective and voluntary agreement by permanent members of the Security Council whereby permanent members shall not exercise the right to veto in the event of mass atrocities. The Security Council’s ability to prevent or put an end to situations of mass atrocities is key to its legitimacy. As of September 2020, the political declaration of support to this initiative, carried by France and Mexico, had been approved by 105 countries”.

Like the previous solution of expanding P5 membership, which France also supports, many of the complications lie in the process of implementing these new laws. What will convince the P5 to sacrifice their own power? In addition, the RN2V initiative “explores the interaction of power and law, and the role of secondary rules therein…. Hence, the legitimacy crisis of the Security Council is at the same time a legitimacy crisis of international law”. Circumventing international law, even to provide necessary action, only decreases the legitimacy of these conventions. The ability for the P5 to restrain their own power and reform the Security Council represents the complicated interaction of power, politics, and international cooperation.

In conclusion, the inaction created and perpetuated by the Security Council veto is deadly. While the Allied Powers had the most influence in creating new international norms 75 years ago, future international conflicts ought to have leadership that more accurately represents the current international community and not just the domestic interests of the P5. The evidence for reform is clear. There is already a legal precedent for Security Council veto reform as a result of an increase in membership in the United Nations. There are many case studies where the veto power cost hundreds of thousands of lives, and Syria specifically serves as an example of when human life was lost when military intervention could have stopped militias from systematically massacring their own people. The international community already accepts, as a result of the Responsibility to Protect doctrine, the idea of humanitarian intervention for the purpose of stopping or preventing the worst of humanity’s crimes is needed to maintain international peace. However, Article 27 (3) prevents the UN from fulfilling its duties because it codifies the ability for the most powerful states to act in their own interest at the expense of the most vulnerable.

The Syrian case study also presents another dilemma: how society interprets international law. If states and civil society see case after case of deadlock that is only alleviated by illegal uses of force, what precedent does that set for international norms? The validity of Article 2 (4)’s ban on the use of force will be questioned or even disregarded. The cornerstone purpose of the UN is to prevent war, but unless the Security Council reforms its veto power, the status quo for genocide prevention will be inaction until illegal action is taken: the world cannot afford either. Two possible reforms could include abolishing the veto and expanding permanent members or accepting and promoting the Responsibility Not to Veto. Either of these reforms provide solutions, yet may be difficult to instate because they would require the most powerful states to limit themselves.

The issues of the veto power thus represent the broader dilemma of international cooperation. There is no overarching power, only states with individual interests that must work together to solve humanity’s most complex and dark problems. But, reform has occurred before and these necessary changes could save millions of lives. Reforming the Security Council to check the most powerful will increase the validity of the UN and international law in the future, which will help ensure that international aid will not forget the most vulnerable. Beth Simmons perhaps describes this power dilemma and importance of international human rights law when she states,

“No other international legal regime has aimed quite so consistently, explicitly, and universally at improving the quality of human existence… The key question is not whether crime exists – that is an indubitable point. It is, what and how has international law contributed to the chances that human beings will enjoy their rights more fully than would have been the case in the absence of the major human rights treaties?”

While international legal institutions, like the Security Council, need reform, a world without global forums dedicated to protecting human rights would be much worse. Therefore, reforming these institutions is not a sign of failure, but a commitment to the laws that will protect the human rights of future generations.