In a previous article on this blog, I discussed a tradition particular to this school –that of Myres McDougal – a tradition I am proud to be a part of. Myres McDougal advocated for law to be a subtle mixture of positive rule and moral aspiration. He emphasized that “the global public order of human dignity” should undergird any legal system.
Thus, since my turn is up again to put some of my thoughts into words, I feel obliged to stir the pot a bit (who will read another article on UN Security Council reform and the veto?) and urge us to take the opportunity to circumvent, do away with, ignore what may be positive laws that protect the UNSC’s structure and veto, and to answer the call of moral aspiration.
Moral aspiration or moral obligation?
The image to the right represents 100,000 people, a conservative estimate of the number of people who have died in Syria to date. Each of them is a parent, a child, a brother or sister. I recognize that the current status of the debate on what to do about Syria is quite different from when I first became interested in exploring UNSC reform. Reform first came to mind when China and Russia cast a double veto that blocked the Western and Arab League-backed resolution condemning Syria for its brutal crackdown on citizen protests and calling for regime change. While calls are being made to circumvent the UNSC, perhaps by invoking the Responsibility to Protect, the international community does not yet seem comfortable with the legitimacy of the collective use of force for humanitarian purposes without UNSC approval. Therefore, the UNSC veto is still a critical and relevant topic.
Moral aspiration should compel ordinary global citizens to pressure the international community to do what it has to in order to respond effectively to the humanitarian crisis in Syria, even if it means flexing, circumventing, or ignoring certain laws that lead to a UNSC stalemate. Too often, we resort to a pragmatic approach because we think that the Permanent 5 will not give up their power without bringing down the entire system, or that perhaps it will be impossible to get them to do so. Wouters and Ruys urge that one cannot afford to be overly pragmatic on this point. What is at stake is the very survival, legitimacy and efficiency of the collective security system in the 21st century. I think the individual lives at stake are just as important. Therefore at least a substantive debate on the veto power is needed.
However, one such argument is that the UNSC already has a moral obligation to do better. This obligation, put forward by the four sponsoring States when the UNSC was created 1945, was based on the need to guarantee peaceful relations among the world’s main powers –which needed the assurance of their support to make it sufficiently credible and vigorous. This goal, the Allied Powers argued, could only be achieved by introducing a mechanism to safeguard the vital national interests of the most important UN Member States. The reverse side was the responsibility of these privileged members to maintain international peace and security through the United Nations.
The Veto As It Is Used Today
The Council has had successes, but its record is more distinguished by its repeated failure to reach agreement on how to adequately deal with threats to peace and security. A principal reason for this has been the refusal of one or another of the Permanent Members to set aside their own interests. Additionally, the veto is often “used in order to protect countries with which [permanent members] have close cultural, economic and/or political ties,” most notoriously in situations of mass genocidal killings.
Since the beginning of its work, there have been 265 vetoes cast in the Security Council. The U.S.S.R./Russia Federation has cast 126, the United States 82, the United Kingdom 32, France 18, and China 7. The vetoes cast by Russia and the United States were cast largely in the period of the Cold War, and by each of them in defense of their client states. For example, Russia would veto on behalf of Eastern European clients and the United States would often veto for Israel.
Thus the great privilege and great responsibility given to the Permanent Five has come to be appropriated by them as a right. The P-5 have behaved and continue to behave in ways that suggest that they see the power that they hold as rightful and free, to be exercised by them in whatever manner they choose. The notion that this power was given to them, over strenuous objections, because of the good that it might do in preserving the peace, has been substantially replaced by the idea that they have a power that they can use to protect and extend their own individual national interests.
The Veto As It Was Intended to Be Used
The veto power was intended as a means of preserving unanimity between the Great Powers at the time, and far from being a menace to the small powers, it was their essential safeguard. Without that unanimity, all countries, large and small, would fall victims to the establishment of gigantic rival blocs, and in fact, the whole system would be threatened by such a situation. There was no way the Great Powers would agree to take on responsibility for global peace and security without some guarantee that they wouldn’t be ruined at some point in the future. Thus, included in the veto was the ability to use it to protect “matters of vital importance to a permanent member.”
This was not an easily settled issue. There was much debate and the entire world was very nervous about giving the P-5 such an extraordinary power. Efforts to influence Security Council permanent members’ voting behavior began within months of the Security Council’s first meeting. To convey the message that the veto ought to be used sparingly, opponents of the veto sought to instill in the permanent members a sense that exercise of the veto power was a profound act of disruption that had a moral dimension. At that time, then Australian delegate to the Security Council, Herbert Evatt, stated before the Council that the veto “puts a special responsibility upon those members of the Council whose single vote may veto the action of the rest,” and he implored the permanent members to give “very serious consideration” before they chose to exercise their veto power. Evatt was seeking to challenge any understanding of the veto as a morally neutral act; he aimed to present it instead as a destructive power that imposed on its holder a responsibility to the rest of the world. To Evatt, the exercise of the veto constituted a moral act that should require deliberation and should risk consequences. Forcing the vetoing state to bear the harsh light of publicity was part of his campaign against it. He was part of the efforts that ultimately lead UNSC voting results to be publicly available.
What are ways we can remind the UNSC of this moral obligation or enforce it otherwise?
Evatt’s efforts suggest one strategy for counteracting the veto, which may have been diluted during the information age – public shaming. In her article “Shame in the Security Council,” Saira Mohamed unwraps shame as a powerful tool that has been used in situations like these in the past. In fact, our very own Myres McDougal was active on this issue at the time as well. Myres argued that in order to veto a resolution, a state must “risk the censure of world opinion.” He did not want an absence from the UNSC to be counted as an abstention. A permanent member should not be allowed to obstruct global action simply by hiding; the power to defeat an effort at international cooperation should “be exercised in a formal, open manner, for all the world to see and hear.” Implicit in the argument was the notion that vetoing a measure should not be too easy, too casual, lest a permanent member too freely use its power in violation of the will of the rest of the world.
This argument can be brought into the modern era by creating some legal requirement that states explain their use of the veto, and some legal standard (clear and convincing evidence) that they must meet in convincing the international community that their decision was based on reasoned concern for international peace and security. Part of this might be defining when a matter is a “vital national interest.” Vetoing U.N. action against a state that is clearly in violation of international law and practice because that state is an ally should not be acceptable.
McDougal, however, went one step beyond Evatt. He expressly asserted that a permanent member should be given the right of veto only if it was subject to the possibility of condemnation for exercising that right. If a state was going to veto a resolution, it should have to pay a price. This brings up another idea –why can’t we create some kind of adjudicatory body that can hear claims that a state vetoed for reasons other than ultimate concern for international peace and security? Could the ICJ hear such claims? Then we could create some form of punishment for states that do not uphold their highest of moral obligations.
One author suggests that the General Assembly should suggest that the Permanent Members be allowed to declare that they are casting a negative vote, without having such vote constitute a veto. Professor Michael J. Kelly suggests a procedural veto (although this would be in conjunction with additional Permanent Member seats for underrepresented countries –another important issue). The procedural veto is one by which the permanent members for Latin America, Africa and Asia may veto an item just as one of the other permanent members may do with its substantive veto. However, when the procedural veto is cast, the matter is not automatically dead. Instead, it is referred to a special session of the General Assembly for consideration. A majority vote in the Assembly after brief debate, either for or against the matter without possibility of amendment, will then determine the matter’s future.
Proposals have been offered that limit the situations in which the veto can be used. One frequently recurring proposal consists in waiving the veto power in all proceedings arising under Chapter VI of the UN Charter on the peaceful settlement of disputes, or Chapter VII. A variation on this idea is to establish a mechanism allowing for a veto to be overruled in the advent of genocide, ethnic cleansing, or large-scale massacres of civilians.
A radical idea….
A majority of UN Member States support the abolition of the veto. Such a reform is being promoted by the African Union, the Arab League, the Group of Non- Aligned Nations, but also by numerous western countries. Apart from the P- 5 hardly any State explicitly supports the existing veto power (Poland, Australia, and Singapore figuring among the rare exceptions).
A radical idea (that I like), suggested by Ambassador Richard Butler, is that the United States lead the way in modernization by declaring to the world that it will give up its veto. The United States could then seek to establish a two-thirds majority vote for the passage of any substantive decisions in the UNSC. The United States would then call upon all the P-5 members to do the same and make the fulfillment of its offer conditional upon the other four following suit. Ambassador Butler calls this an act of leadership that would be “profound, imaginative, and graceful.” Quite in keeping with the tradition of Myres McDougal!
Call for further thoughts
I recognize that abolishing the veto is not the only answer to responding to the humanitarian crisis in Syria, nor is it necessarily the most effective one. I only wanted to take the time to find out what was being said about abolishing the veto for this post. I would love to hear any alternative suggestions you may have –as long as they are revolutionary! Of course, these are only my initial investigations. I welcome and invite comments, criticisms, and suggestions about abolishing or reforming the veto. Thank you!
For updates on UN Reform efforts, see http://www.centerforunreform.org/.
Jaime Menegus is a 3L and a Staff Editor for the Denver Journal of International Law and Policy
 Brian Cox, United Nations Security Council Reform: Collected Proposals and Possible Consequences, 6 S.C.J. Int’l L. & Bus. 89, 119-20 (2009), available at http://scholarcommons.sc.edu/cgi/viewcontent.cgi?article=1035&context=scjilb.
 Butler, supra note 2, at 31.
 Id. at 29.
 Cox, supra note 3, at 121.
 Saira Mohamed, Shame in the Security Council, 90 Wash. U. L. Rev. 1191, 1214-15 (2013), available at http://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi?article=6014&context=lawreview.
 Id. at 1216.
 Myres S. McDougal & Richard N. Gardner, The Veto and the Charter: An Interpretation for Survival, 60 Yale L.J. 258, 286 (1951), available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3481&context=fss_papers.
 Butler, supra note 2, at 34; Wouters & Ruys, supra note 1, at 33.
 Mohamed, supra note 8, at 1218.
 Wouters & Ruys, supra note 1, at 37.
 Kamrul Hossain, The Challenge and Prospect of Security Council Reform, 7 Regent J. Int’l L. 299, 300 (2010).
 Amber Fitzgerald , Security Council Reform: Creating a More Representative Body of the Entire U.N.
Membership, 12 Pace Int’l L. Rev. 319, 353 (200), available at http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1231&context=pilr.
 Wouters & Ruys, supra note 1, at 25.
 Id. at 37.
 Id. at 25.
 Butler, supra note 2, at 39.