The war in Ukraine and the curtailment of the veto in the Security Council

Russia repeatedly vetoed draft Security Council resolutions that concerned its military activities in the neighbouring state of Ukraine, both in 2014 and in 2022. ¹ In this context, after the Russian full-blown invasion, the US ambassador to the United Nations stated that ‘any Permanent Member that exercises the veto to defend its own acts of aggression loses moral authority’. ² And in the General Assembly debate on remedy and reparation for the war damage inflicted upon Ukraine, the Ukrainian delegate highlighted that the emergency special session of the General Assembly, within the Uniting for Peace framework, was ‘designed for instances just like this, when a country like Russia abuses its veto power.’ ³

This paper traces how two recent procedural developments (the so-called veto-initiative and a US-American self-commitment), triggered by the war in Ukraine, contribute to eroding the lawfulness of a vote in the Security Council which shields manifestly illegal own conduct such as aggression. Importantly, this erosion does not call into question the legal right of the permanent members of the Security Council to use the veto at their discretion, to further their own interests, even if in tension with their responsibility to contribute to maintaining world peace. But it confirms what recent empirical, both large N-analysis and case studies tracing the decision-making processes in the Security Council, have shown: ‘[t]he powerful hold the veto, but they do not hold sway over the entire process. (…) The rules of the institution have an impact.’ The Security Council is not a simple ‘pass-through for powerful states’. ⁴ The paper concludes that reformed working methods are a suitable vehicle to contain the veto and thereby to improve the effectiveness and legitimacy of Security Council.  

The anachronism of the veto

The composition of the Council and the veto freeze a historic moment by privileging states which had been powerful in 1945, but which may no longer be equally important on a world scale, especially in comparison to non-European states that are economic and political giants like Brazil or India. In 1945, the voting scheme for the projected Security Council (including the requirement of a ‘concurring vote’ of the permanent members) was conceived at a conference among the four victorious powers in Yalta in 1945, without participation of the rest. The ‘Yalta formula’ already foreshadows the text of what later became Art 27 of the UN Charter. ⁵ The four sponsoring states made clear that there would be no world organisation without such a prerogative: The voting scheme was ‘essential’ to the new organisation. ⁶ The veto was ‘a price to be paid for the creation of the UN’. ⁷  

In 1945, the Yalta formula was approved in a vote of 30 to 2, with 15 abstentions. ⁸ A cynical view on this vote is that it only embellished the fact that the other states had to swallow the privileges of the Great Powers if they wanted to get what all sides wanted: a new world organisation through which peace and security could be maintained. However, the veto was accepted not only due to overwhelming military, political, and even economic power of the permanent members of the Security Council or some of them, but also because the other states had the normative expectation that this would be a guarantee of peace and security. The four sponsoring powers of the Yalta formula (later joined by France) pledged, at least implicitly, to continue to safeguard world peace, as they had proven in World War II. 

Security Council reform on the road to nowhere

Soon after the foundation of the United Nations, the political split of the world into two hostile blocks paralysed the Security Council until 1991. The period of overall Council activism since 1991 has meanwhile given way to a concentration of Council action against non-state actors in the fight against global terrorism, and to selectivity in the field of sanctions against states. The permanent members of the Security Council and their clients, ranging from Israel over North Korea to Syria, remain protected from any Council action. In addition, the Security Council suffers, as mentioned, from the increasingly obvious unfair veto privilege of the ‘old’ powers.

Against this background, the debate on reforms of the Security Council, including the veto, has been ongoing for the past 30 years. ⁹ The objective of reforms have been two-fold, addressing both the problems of effectiveness and the problems of legitimacy of the Council. Effectiveness is hampered by blockade and undue passivity, while the legitimacy of the Council is undermined by its un-representativity, its intransparency, and by its selective action that is often perceived as applying double standards. Reform proposals have addressed notably the composition of the Council with the addition of new members in different categories (permanent and non-permanent) and the voting schemes. On the ‘question of the veto’, all proposals in the inter-state negotiations were summarised in a 2013 paper of an Advisory Group appointed by the President of the UN General Assembly. ¹⁰ These proposals range from extension of a veto power to new members up to the complete abolition of the veto. They comprise ideas such as allowing potential new Security Council members a veto subject to a moratorium to use it for 15 years, or—on the contrary—to limit the use of the veto to chapter VII matters, not to allow its use for Council action aiming at preventing or ending genocide, or to require non-concurring votes (vetoes) by two permanent members to block Security Council action.

There was a real window of opportunity for Security Council reform from 1992 to 1997, but this opportunity was missed. ¹¹ After further momentum between 1998 and 2008, the negotiations have been, as Bardo Fassbender put it, ‘on a road to nowhere’. ¹² The political reasons for the deadlock are the national interests of states which all fear to loose something in comparison to the status quo. ¹³ The legal difficulty is the requirement of a 2/3 majority of the members of the General Assembly and of a ratification by all five permanent members of the Security Council. ¹⁴ This legal threshold would—in the present constellation—seem to constitute an unsurmountable obstacle against a formal revision of Art 27(3) of the Charter which embodies the veto. Therefore, the informal changes of the working methods and reforms ‘below’ the level of a formal Charter revision are crucial. On this level, the war in Ukraine has catalysed important developments. 

The veto initiative of 26 April 2022

The Russian aggression pushed long-standing efforts to curtail the veto towards a procedural reform. Already in 1949, in its resolution ‘Essentials of Peace’, the General Assembly had called on the Security Council’s permanent members ‘[t]o broaden progressively their cooperation and to exercise restraint in the use of the veto’. ¹⁵ Fast-forward seventy years: on 26 April 2022, two months after the Russian invasion in Ukraine, the UN General Assembly adopted the so-called ‘veto initiative.’ ¹⁶ This reform was co-sponsored by 83 states from every UN regional group, including the three Western permanent members of the Security Council. Under GA Resolution 262/76, the President of the General Assembly must ‘convene a formal meeting of the General Assembly within 10 working days of the casting of a veto by one or more permanent members of the Security Council, to hold a debate on the situation as to which the veto was cast, provided that the Assembly does not meet in an emergency special session on the same situation’. ¹⁷ The permanent member that cast the veto may speak first in the mandatory General Assembly debate. ¹⁸ Moreover, the General Assembly ‘invites’ the Security Council ‘to submit a special report on the use of the veto in question to the General Assembly at least 72 hours before the relevant discussion in the Assembly’. ¹⁹ The resolution finally foresees a provisional agenda item entitled ‘Use of the veto’ for the next General Assembly. ²⁰ In result, this important resolution establishes a standing mandate to publicly discuss and criticise each and every veto in the General Assembly, i.e. by all member states. 

The US-American self-commitment not to veto of 8 September 2022

The second procedural response to the Russian invasion is the United States’ self-commitment to ‘refrain from the use of the veto except in rare, extraordinary situations’. ²¹  

With this self-commitment of 8 September 2022, the United States roughly mirrors (even if not espousing them explicitly) the two major prior initiatives to curtail the use of the veto. ²² The first was the code of conduct by the Accountability, Coherence and Transparency (ACT) Group that has been signed by 121 UN members, including the two permanent members France and UK. The signatories ‘pledge in particular not to vote against a credible draft resolution before the Security Council on timely and decisive action to end the commission of genocide, crimes against humanity or war crimes, or to prevent such crimes’. ²³

The other attempt to restrain the veto was the French-Mexican initiative, first launched by French state representatives in the press in 2013 ²⁴ and then tabled in the 70^th General Assembly of 2015, as a ‘Political statement on the suspension of the veto in case of mass atrocities’. ²⁵ It proposes ‘a collective and voluntary agreement among the permanent members of the Security Council to the effect that the permanent members would refrain from using the veto in case of mass atrocities.’ This statement has been signed by 104 UN member states and two observers, but among the permanent members only by France. ²⁶ Observers have explained the renunciation on the veto by France and the UK (which signed the ACT code of conduct mentioned above) as these two European middle powers’ implicit acknowledgment that the exercise of their veto would be illegitimate. ²⁷ Indeed, the French and British veto competence can no longer obviously be justified by these states’ military capacity to guarantee world peace. On the other hand, both states are nuclear powers, and they continue to project military force outside Europe. Moreover, the most recent self-commitment by the US cannot be taken as an admission of relative military weakness. Therefore, it should not be excluded that all three Western veto-powers are driven, inter alia, by the normative convictions about the impropriety of exercising the veto in situations of mass atrocities. 

The two earlier initiatives were launched with the scenarios of Rwanda, Bosnia, and Myanmar in mind. They seek to foreclose the exercise of the veto in a situation of imminent or ongoing core crimes which are typically committed by non-state or para-state groups, often orchestrated by a state (not necessarily by a permanent member of the Security Council itself). 

The situation of Ukraine since 2014 and more even since 2022 is different. Here a permanent member is itself committing an aggression, a crime that is not mentioned by the ACT-initiative and not normally understood to fall under ‘mass atrocities’ in terms of the French-Mexican initiative. However, there is an overlap between mass atrocities, war crimes, and aggression. It would seem that the ACT code and the French-Mexican voluntary agreement would a fortiori cover the situation that a state is itself committing these crimes and not only asked to prevent or stop another (non-state) actor from committing them.

In conclusion, all three ‘Western’ permanent members are now self-committed not to veto Security Council action against core crimes (arguably including their own crimes). The exact normative status of these self-commitments is not fully clear. They have not been framed as formally binding unilateral declarations. The headings such as ‘code of conduct’ and ‘political statement’ and ‘remarks’ rather point in the direction of ‘pure’ politics. Moreover, all commitments leave loopholes. The French-Mexican initiative has a carve-out for ‘vital national interests’, and the US ‘remarks’ leave out ‘rare, extraordinary situations’ that remain undefined. ²⁸ But even these political commitments may over time (through consistent observance) acquire a soft legal quality. Their normative relevance is secured only by the reputational costs that a breach of the promise would entail. With these caveats, the three powers’ commitments are faithful to the historic pledge of the veto powers. They bolster the legitimacy of the Security Council. 

The veto initiative in practice 

The veto initiative as implemented by the General Assembly in 2022 differs from the pledges just mentioned. It does not foresee a ‘responsibility not to veto’ as it has been called in scholarship, ²⁹ but ‘only’ a mandatory General Assembly debate. It operationalises ideas that had been formulated in prior scholarship. For example, Daniel Moeckli and Raffael Nicolas Fasel have elaborated the duty to give reasons in the Security Council. ³⁰ Devika Hovell has drawn out the duties to notify, to inform, to consult, to give reasons, and to account, as part of the Security Council’s fiduciary role. ³¹ Anna Spain has expounded the Security Council’s duty to decide in a prima facie Article 39 situation, and its duty to disclose, and to consult. ³² Spain postulates a duty to decide that triggers the Council’s duty to examine whether a threat or breach to peace is present. Next, a duty to disclose is prompted when the Council is unwilling or unable to decide (eg due to a veto): in that case, the Council must, according to Anna Spain, issue a public statement and provide justification why it has not decided. ³³ Spain argued that this disclosure is a procedural matter in the sense of Art 27(2) of the UN Charter, and that therefore the publication of the statement cannot be prevented by a veto. ³⁴ The reasoning is intriguing but it remains unclear whether the legal construct can be derived from the law as it stands. Along a similar line, the ‘Elders Group’ (an independent group of global leaders founded by Nelson Mandela in 2007) ³⁵ had in 2015 tabled a proposal on ‘Strengthening the United Nations‘, in which the Elders suggested that the five permanent members of the Security Council should pledge not to use or threaten to use their veto in situations of mass atrocities ‘without explaining, clearly and in public, what alternative course of action they propose, as a credible and efficient way to protect the populations in question’. ³⁶  

The ‘veto-initiative procedure’ as established by the General Assembly led to a similar outcome, by assigning the duty of explanation to the permanent member that had blocked the Council action by the exercise of its veto; and this permanent member of the Security Council must now respond to the General Assembly. ³⁷  

The procedure was triggered quite soon after being created, with a General Assembly debate on the vetoes cast by Russia and China on a draft Security Council resolution seeking to condemn intercontinental ballistic missile launches and nuclear tests by the Democratic People’s Republic of Korea (DPRK), in violation of multiple prior Security Council resolutions. ³⁸ In the General Assembly debate of 8 and 10 June 2022, ³⁹ numerous states from all world regions made explicit and very positive statements on the new procedure as established by GA Res 262/76. At least 11 states qualified the debate as ‘historic’, as a ‘milestone’, or as a landmark. ⁴⁰ 16 states found that the new mechanism would enhance the transparency and accountability of the Security Council. ⁴¹ Others saw an improvement of effectiveness or efficiency of the Council. ⁴² Especially Liechtenstein expressed its hope ‘that the prospect of accountability to the General Assembly will lead to more Security Council action and fewer vetoes being cast.’ ⁴³

Several states welcomed the empowerment and the ‘vital’ role of the General Assembly. ⁴⁴ The state using veto would no longer have ‘the last word’, ⁴⁵ but the Assembly could step in and assume a useful function. ⁴⁶ GA Res 262/76 marks, according to Uruguay, ‘a turning point in the relationship between the Council and the Assembly’. ⁴⁷ Other states pointed out that the new mechanism serves to upholding, strengthening or improving the multilateral system. ⁴⁸ Only Syria criticised the new standing debate in the General Assembly, deploring a ‘political polarization’. ⁴⁹ Although it is true that publicity always carries the risk of ‘show debates’ in which the antagonist positions are hardened, the Syrian critique is in the end not convincing. The publicity of a General Assembly debate might just as well ultimately allow for consensus-building. Syria’s lonely voice should rather be taken as a manifestation of complete dependence of the Syrian government on Russia—after all it owes its sheer existence to the Russian military assistance in its criminal oppression of its uprising population. 

The second General Assembly debate under the new mechanism established by GA resolution 76/262 took place after a Russian veto against cross-border humanitarian assistance in Syria. ⁵⁰ In the debate of 21 July 2022, Nicaragua, Belarus, and Cuba criticised the General Assembly meeting as undermining good faith negotiations on the draft resolutions in the Council, as ‘duplicating’ the work of the Council, in short as ‘unnecessary’. ⁵¹  

The third application of the new mechanism again concerned Ukraine. Albania and the United States of America had tabled a draft resolution to condemn and declare invalid the referendums conducted at the end of September 2022 in the occupied zones Donetsk, Luhansk, Kherson und Zaporizhzhya. ⁵² Russia cast its veto on 30 September 2022. ⁵³ The ‘special report’ required under GA
Res 262/76 was transmitted by the President of the Security Council to the President of the General Assembly on 4 October 2022. This report was a one pager that merely recapitulated the procedure, listed the relevant documents, and stated that ‘the resolution obtained the required number of votes, but was rejected because a permanent member of the Security Council voted against its adoption.’ ⁵⁴ In the future, it is conceivable that such reports become more elaborate, but this does not seem to be necessary to trigger the General Assembly debate.   

Within ten working days, as prescribed in GA Res 76/262, the General Assembly met. ⁵⁵ In the plenary of 12 October 2022, the new accountability mechanism—that had been celebrated in June—was barely an issue. The debate concentrated on the violation of international law by the Russian annexation, and the Assembly adopted a resolution entitled ‘Territorial integrity of Ukraine: defending the principles of the Charter of the United Nations’. ⁵⁶  

Since then, no attempt was made to engage the Security Council on the situation in Ukraine. Rather, the General Assembly took the question of remedy and reparation in its hands. In its resumed Emergency Special session, it adopted a resolution on the ‘Furtherance of remedy and reparation for aggression against Ukraine’. ⁵⁷

Assessment and Outlook

The legal and political effects created by GA Res 76/262 remain to be seen. Against the background that members of the Security Council already use to explain their vetoes in a public meeting of the Council, the new mechanism might be duplicative and superfluous. ⁵⁸ However, the new procedural obligation to hold a General Assembly resolution goes beyond past practice. The novelty is (only) that this explanation now must be repeated in the General Assembly, in front of all UN member states, which also have the right to take the floor.

A Chinese concern is that the new procedure risks to cause ‘procedural confusion and inconsistency’. ⁵⁹ This is a very old trope, reminiscent of the Soviet opposition to the so-called ‘Uniting for Peace’ procedure established in 1950. ⁶⁰ Indeed, Art 12 of the UN Charter establishes a procedural priority of the Security over the General Assembly by prescribing that, ‘[w]hile the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.’ But this provision does not prevent the General Assembly from pronouncing itself on an issue when the Security Council is precisely not exercising its function due to blockage by a veto. The ‘Uniting for Peace’ mechanism had been mainly dormant, even throughout the war in Syria, but has now been activated in the Ukrainian crisis. ⁶¹ Three days after the Russian invasion, the Security Council decided to call the 11^th Emergency Special Session of the General Assembly because ‘the lack of unanimity of the permanent members at its 8979th meeting has prevented it [the Council] from exercising its primary responsibility for the maintenance of international peace and security’. ⁶² (This is a procedural decision and not subject to the veto (Art 27(2)). ⁶³ Politically speaking, the ‘Uniting for Peace’ was a baby of US politics, and was occasionally criticised by the USSR. However, the USSR itself has invoked the Uniting for Peace procedure in the 1950s and 1960s (with regard to the Suez crisis and the Six Day Arab-Israeli War). Its application in the Ukraine crisis has placed the lawfulness of the Uniting for Peace-procedure beyond any doubts. ⁶⁴ The General Assembly has the implied power to act, a contrario Art 12, in the event of a failure or deadlock of the Council.

Independently of its lawfulness, the new mandatory General Assembly debate might be in political terms divisive. This concern seems to have motivated France to hesitate in co-sponsoring the resolution (although it ultimately did). France would prefer to obtain consent of all five permanent members of the Security Council on its own proposal, the political statement on the suspension of the veto. ⁶⁵  

Importantly, the purely procedural move under GA Res 262/76 does not address the substance of the veto power and it does not address the root cause of the discomfort with this power, namely that it does not reflect contemporary geo-political realities. Unsurprisingly, emerging states such as Brazil and India have voiced some skepticism against the new procedure. ⁶⁶  

Russia, not without merit, pointed out that the veto remains a necessary device to prevent the adoption of resolutions on military action without the support of states that are willing and able to actually deploy military action. ⁶⁷ Without such support, these decisions would be mere paper tigers and would destroy the authority of the Security Council.

Therefore, the question remains which normative and factual power lies in such procedures. The twin objectives of the veto initiative are to deter the use of the veto and to create accountability. Deterrence might result from the (slight) increase of the costs of exercising the veto, namely the shaming effect of the broad and public debate. Putting veto users ‘under the spotlight’ ⁶⁸ in the General Assembly generates transparency which is in itself a mild form of accountability. ⁶⁹

Generally speaking, the obligation to explain and give reasons forces a decision-maker (in our case the veto power) to base its acts on claims regarding the general interest rather than on selfish appeals. This has been called the ‘civilizing force of hypocrisy’. ⁷⁰ These reasons, even if they may be hypocritical, still have the consequence of generating better outcomes, because in an official debate the ‘bad’ reasons cannot be stated. The obligation to explain before the General Assembly leaves the exercise of the veto within the realm of discretion of the permanent member of the Security Council, but still forces this state to rationalise the exercise of its veto right. This allows not only all other states but also the public to criticise these reasons. In the long run, the necessity to justify the veto might lead to ruling out those most blatant abuses that can simply not be rationalised.

But is this hope realistic? The United Nations, including its most powerful organ, ‘exists in a world of sovereign states, and its operations must be based in political realism. But the organization is also the repository of international idealism, and that sense is fundamental to its identity.’ ⁷¹ This characterisation of the UN by the International Commission on State Sovereignty and Intervention (ICISS) seems more pertinent than ever. ICISS had, twenty years ago, opined that ‘[t]he task is not to find alternatives to the Security Council as a source of authority, but to make the Security Council work much better than it has.’ ⁷²  

The emphasis here is on ‘working better’. Improvement of procedures and working methods can—in functional terms—be a substitute for a formal amendment of the Charter. This is not to say that such procedural reform would be purely ‘technical’ or un-political. Quite to the contrary. The enormous political potential of procedures is illustrated by the fact that the Security Council has until now not managed to adopt final procedural rules but still works under ‘provisional’ rules that have last been revised in 1982. ⁷³  

The difference between Charter amendment and reform of working methods is only—but importantly—that the latter can be legally framed as dynamic interpretation of the UN Charter through subsequent practice. The UN Charter, formally a treaty, may be interpreted (and re-reinterpreted) by ‘taking into account’ any ‘subsequent agreement between the parties regarding the interpretation of the treaty’ (Art 31(3) lit. a) of the Vienna Convention on the Law of Treaties) or by taking into account ‘any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’ (Art 31(3) lit. b) of the Vienna Convention on the Law of Treaties). If all member states agree on such a course, it would be in the end acceptable in legal terms, because the lines between mere ‘interpretation’ of the Charter and its tacit amendment are blurry both in legal theory and in fact, and because member states may in an ad hoc fashion agree to change the rules of revision. ⁷⁴ It is often argued that the UN Charter is particularly prone to and in need of dynamic interpretation due to its constitutional character and due to the difficulty of formal amendment. ⁷⁵ On the other hand, ‘informal’ amendments in the guise of dynamic interpretation risk to undermine legal clarity and security. ⁷⁶

Another question is whether the new procedures could even morph into customary law. ⁷⁷ This seems difficult for various reasons. Commitments that are explicitly called ‘political’ as opposed to ‘legal’ cannot easily count as a manifestation of opinio juris. Moreover, two permanent members of the Security Council oppose the trend, but they are states whose interests are specially affected and whose opinion and practice would be needed for a maturation of a customary rule. And finally, a custom superseding and deviant from the written Charter law is in normative terms unwelcome because it risks to undermine the Charter. 

With these caveats in mind, I would nevertheless welcome further changes in the working methods that might lead, for example, to a reactivation and even expansion of the scope of the abstention clause of Art 27(3) UN Charter. ⁷⁸ This provision foresees an obligatory abstention for all members of the Security Council when there is a ‘dispute’ to which that state is a ‘party’, provided that the decision is not a procedural one (Art 27(2)) and falls either under Chapter VI on the ‘Pacific Settlement of Disputes’ or under Chapter VIII (Art 52(3)) ─ but not under Chapter VII on ‘Action with respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression’. ⁷⁹ In legal terms, states’ and scholarly proposals to read the proviso broadly and extensively should be revisited, in order to avoid the paralysis of the Security Council against blatantly illegitimate behaviour of a permanent member. This extensive Charter interpretation had been widely assumed in the first decades of the life of the United Nations. ⁸⁰

It is to be hoped that the political momentum to improve the workings of the Security Council, even towards a further limitation of abusive vetoes, can be built up in the situation of extreme tension. In 1945, the permanent members had proclaimed: ‘It is not to be assumed, however, that the permanent members, any more than the non-permanent members, would use their “veto” power wilfully to obstruct the operation of the Council.’ ⁸¹ The current permanent members should be reminded time and again of this historic promise. The long-lasting attempts of initiatives to curtail the veto which have peaked in April 2022 shows that there is no acquiescence by states to an unlimited use of the veto. ⁸²

With China poised to become the world’s leading power, the country might set an example of wise leadership. ⁸³ In fact, China commented on the new procedure: ‘We define our position in the Security Council in a manner that is responsible to the UN Charter and to history.’ ⁸⁴ China had, as a founding member of the United Nations, stated ‘that it was not unreasonable to suppose that after a time the great powers would be willing to consider elimination of the veto.’ ⁸⁵ This time may come, even if we do not know when. 

1. In 2014: Draft SC resolution (UN Doc. S/2014/189) of 15 March 2014; Russian veto in meeting of 15 March 2014 (S/PV.7138, 3). In 2022: Draft SC resolution (UN Doc. S/2022/155) of 25 February 2022; vetoed by Russia in meeting of 25 February 2022 (S/PV.8979, 6). Draft SC resolution ‘Maintenance of peace and security of Ukraine’ (UN Doc. S/2022/720) of 30 September 2022; vetoed by Russia in meeting of 30 September 2022 (S/PV.9143, 4).
2. Remarks by Ambassador Linda Thomas-Greenfield on the Future of the United Nations of 8 September 2022 (https://usun.usmission.gov/remarks-by-ambassador-linda-thomas-greenfield-on-the-future-of-the-united-nations/).
3. General Assembly, Eleventh Emergency Special session, 15th plenary meeting Monday, 14 November 2022, 10 a.m., Official Records, A/ES-11/PV.15, 2. See also the ‘Statement of the Foreign Ministry of Ukraine on the illegitimacy of the Russian Federation’s presence in the UN Security Council and in the United Nations as a Whole’ of 26 December 2022, listing examples of Russian ‘abuse of the veto power’.
4. Susan Allen and Amy Yuen, Bargaining in the Security Council: Setting the Global Agenda (Oxford OUP 2022), 169.
5. Protocol of Proceedings at the Yalta Conference, Yalta (Crimea), 11 February 1945, C. ‘Voting’: ‘3. Decisions of the Security Council on all other matters should be made by an affirmative vote of seven members including the concurring votes of the permanent members; provided that, in decisions under Chapter VIII, Section A and under the second sentence of paragraph 1 of Chapter VIII. Section C, a party to a dispute should abstain from voting.’ (emphases added).
6. Statement at San Francisco by the delegations of the four Sponsoring Governments (China, the UK, the USA, and the USSR) on ‘The Yalta Formula’ on Voting in the Security Council’, San Francisco, 8 June 1945, Sec. I. 9 and 10. Sec. I. 9.: ‘9. In view of the primary responsibilities of the permanent members, they could not be expected, in the present condition of the world, to assume the obligation to act in so serious a matter as the maintenance of international peace and security in consequence of a decision in which they had not concurred.’ Sec. I. 10: ‘For all these reasons, the four sponsoring Governments agreed on the Yalta formula and have presented it to this Conference as essential if an international organization is to be created through which all peace-loving nations can effectively discharge their common responsibilities for the maintenance of international peace and security.’ (emphasis added).
7. Niels Blokker, Saving Succeeding Generations from the Scourge of War : The United Nations Security Council at 75 (Leiden: Brill 2021), 73.
8. Francis Orlando Wilcox, ‘The Yalta Voting Formula’, The American Political Science Review 39 (1945), 943-956, at 950.
9. See from a legal perspective, Bardo Fassbender, Key Documents on the Reform of the UN Security Council 1991-2019 (Brill Nijhoff 2020), ‘Landmarks in the history of the Security Council reform debate’, 15-35; from a political science perspective, Madeleine O Hosli and Thomas Dörfler, ‘The United Nations Security Council: History, Current Composition, and Reform Proposals’, in Madeleine Hosli and Joren Selleslaghs (eds) The Changing Global Order (Springer 2020), 299-320.
10. Non-paper, Annex to a letter from the President of the General Assembly, 10 December 2013 (reprinted in Fassbender (n 9), at 912.
11. Fassbender (n 9), 16.
12. ibid, 26.
13. Hosli and Dörfler (n 9), 306.
14. Amendment under Art 108 or revision under Art 109(2) of the UN Charter.
15. UN GA Res 290 (IV) of 1 December 1949, para 10.
16. UN GA Res 76/262, ‘Standing mandate for a General Assembly debate when a veto is cast in the Security Council’ (UN Doc. A/RES/76/262) of 26 April 2022, adopted by consensus.
17. UN GA Res 76/262 (n 16), para 1.
18. ibid, para 2.
19. ibid, para 3. Such special reports are foreseen in Art 24(3) of the UN Charter.
20. ibid, para 4.
21. Ambassador Linda Thomas-Greenfield (n 2); comment by Raphael Schäfer, ‘The Echo of Quiet Voices. Liechtenstein’s Veto Initiative and the American Six Principles’, EJIL: Talk! (10 October 2022).
22. See for a detailed analysis of the prior initiatives: Jennifer Trahan, Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes (CUP 2020), 102-141. Trahan also recalls that the USA had already under the Obama administration proposed a veto restraint, a proposal which however petered out (ibid at 118-119).
23. Accountability, Coherence and Transparency (ACT) Group, Submission to the United Nations, ‘Code of Conduct regarding Security Council action against genocide, crimes against humanity or war crimes’ of 23 October 2015, Annex I to the letter dated 14 December 2015 from the Permanent Representative of Liechtenstein to the United Nations addressed to the Secretary-General (UN Doc. A/70/621-S/2015/978).
24. Statement by Mr. François Hollande, President of the Republic, 24 September 2013 (Opening of the 68th Session of the United Nations General Assembly (https://gadebate.un.org/sites/default/files/gastatements/68/FR_en.pdf); Laurent Fabius, Foreign Minister of France, ‘A Call for Self-Restraint at the U.N.’, New York Times of 4 October 2013 (https://www.nytimes.com/2013/10/04/opinion/a-call-for-self-restraint-at-the-un.html).
25. 70th General Assembly of the United Nations, ‘Political statement on the suspension of the veto in case of mass atrocities, presented by France and Mexico, open to signature to the members of the United Nations’ (2015) (https://www.globalr2p.org/resources/political-declaration-on-suspension-of-veto-powers-in-cases-of-mass-atrocities/ ).
26. Signatory list, status of 13 July 2022 (not updated as of 1 April 2023), at: https://www.globalr2p.org/resources/list-of-supporters-of-the-political-declaration-on-suspension-of-veto/.
27. Hosli and Dörfler (n 9), 301; Fassbender (n 9), 33; Trahan (n 22), 138 fn. 182.
28. It would seem that the shielding of Israel’s violations of international law by US vetoes cannot be continued under this exception.
29. Ariela Blätter and Paul D. Williams, ‘The Responsibility Not to Veto’, Global Responsibility to Protect 3 (2011), 301-322; Jean-Baptiste Jeangène Vilmer, ‘The Responsibility Not to Veto: A Genealogy’, Global Governance 24 (2018), 331-349.
30. Daniel Moeckli and Raffael Nicolas Fasel, ‘A Duty to Give Reasons in the Security Council’, International Organizations Law Review 14 (2017), 13-86.
31. Devika Hovell, ‘On Trust: The UN Security Council as Fiduciary,’ William and Mary Law Review 62 (2021), 1229-1295, esp. at 1279-80.
32. Anna Spain, ‘The UN Security Council’s Duty to Decide’, Harvard National Security Journal 4 (2013), 320-384.
33. ibid, at 359.
34. ibid, at 362.
35. ‘The Elders’ work, as they write on their website, ‘for peace, justice, human rights and a sustainable planet’. (https://theelders.org/who-we-are).
36. The Elders, ‘Strengthening the United Nations’, 7 February 2015, para 2.
37. UN GA Res 76/262 (n 16).
38. Draft resolution of the Security Council proposed by the US on 26 May 2022 (UN Doc S/2022/431); vetoes by Russia and China (UN SC, 9048th meeting, 26 May 2022, S/PV.9048, 3).
39. Agenda item 124 (in three parts): UN GA, 77th Plenary Meeting, 8 June 2022, 10 a.m. (UN Doc. A/76/PV.77, 1-29); 78th Plenary Meeting, 8 June 2022, 3 p.m. (UN Doc. A/76/PV.78, 10-27); UN, GA 81st Plenary Meeting, 10 June 2022, 10 a.m. (UN Doc. A/76/PV.81, 11-18.
40. Denmark (PV.77, 9); USA (PV.77, 14); Costa Rica (PV.77, 18); Turkey (PV.77, 19); Indonesia (PV.77, 23); Switzerland (PV.77, 26); Poland (PV.77, 27); Kuwait (PV.78, 14); Estonia (PV.78, 19); Peru (PV.78, 23); Mexico (UN Doc. A/76/PV.79, 10); Hungary (UN Doc. A/76/PV.81, 16).
41. Denmark (PV.77, 9); Liechtenstein (PV.77, 11); Ecuador (PV.77, 13); Ireland (PV.77, 17); Mexico (PV.77, 18-19); Singapore (PV.77, 22 and A/76/PV.79, 11); Indonesia (PV.77, 23); Australia (PV.77, 24); Kuwait (PV.78, 14); Germany (PV. 78, 16); Slovenia (PV.78, 19); Peru (PV.78, 23); Portugal (UN Doc. A/76/PV.79, 7); South Africa (UN Doc. A/76/PV.79, 19); Uruguay (UN Doc. A/76/PV.81, 11); Chile (UN Doc. A/76/PV.81, 13).
42. Singapore (PV.77, 22); Poland (PV.77, 27).
43. UN Doc. A/76/PV.79, 15.
44. Liechtenstein (PV.77, 11); Ireland (PV.77, 17); Turkey (PV.77, 19); Lithuania (UN Doc. A/76/PV.81, 12).
45. Liechtenstein (PV.77, 11); Ecuador (PV.77, 13).
46. Austria (PV.77, 21); Switzerland (PV.77, 26); Italy (UN Doc. A/76/PV.79, 22); Ecuador (UN Doc. A/76/PV.79, 7); Malaysia (UN Doc. A/76/PV.79, 9); Slovenia (UN Doc. A/76/PV.79, 23); El Salvador (UN Doc. A/76/PV.81, 17).
47. Uruguay (UN Doc. A/76/PV.81, 11).
48. EU (PV.77, 8); Albania (PV.77, 12); Singapore (PV.77, 22); Poland (PV.77, p 27); Ukraine (UN Doc. A/76/PV.81, 15); El Salvador (UN Doc. A/76/PV.81, 17).
49. Syria (PV.77, 28).
50. The Russian Veto was cast on 8 July 2022, in 9087^th meeting of the Security Council under agenda item ‘The situation in Middle East’ (UN Doc. S/PV.9087) on the Security Council draft resolution sponsored by Ireland and Norway (UN Doc. S/2022/538) of 8 July 2022.
51. UN GA, 96th Plenary Meeting, 21 July 2022, 3 p.m. (UN Doc. A/76/PV.96, 1-14 (at 8, 111, 12).
52. Draft Security Council resolution ‘Maintenance of peace and security of Ukraine’ (UN Doc. No. S/2022/720) of 30 September 2022.
53. UN SC, 9143rd meeting, 30 September 2022, S/PV.9143.
54. Letter dated 4 October 2022 from the President of the Security Council addressed to the President of the General Assembly (UN Doc. A/77/551).
55. This took place in the framework of the resumed 11^th Special Emergency Session (ES) of the General Assembly that had been convened in response to the Russian invasion by UN SC Res 2623 (2022) of 27 February 2022 ‘Decision to call an emergency special session of the General Assembly; UN GA, ‘Uniting for Peace’, Resolution UNGA/ES-11/L.1 of 1 March 2022. The ES has been standing since 1 March 2022. See for the debate on the veto: UN Doc. A/ES-11/PV.14 General Assembly Eleventh Emergency Special session 14th plenary meeting Wednesday, 12 October 2022, 3 p.m. (GAOR).
56. A/RES/ES-11/4 of 12 October 2022.
57. GA Res A/RES/ES-11/5 (14 November 2022). General Assembly, Eleventh Emergency Special session, 15th plenary meeting, Monday, 14 November 2022, 10 a.m., Official Records, A/ES-11/PV.15.
58. See the critique by Nicaragua, Belarus, and Cuba in the General Assembly (n 51).
59. Permanent Mission of the People’s Republic of China to the UN, Explanation of Position by China after the Adoption of Resolution ‘Standing mandate for a General Assembly debate when a veto is cast in the Security Council’, 27 April 2022 (http://un.china-mission.gov.cn/eng/hyyfy/202204/t20220427_10674706.htm).
60. UN GA Res 377(V) (3 November 1950) ‘Uniting for Peace’.
61. See UN GA, ‘Uniting for Peace’, Resolution UNGA/ES-11/L.1 of 1 March 2022. The emergency special session has been standing since 1 March 2022.
62. UN SC Res 2623 (2022) of 27 February 2022 ‘Decision to call an emergency special session of the General Assembly’, preamble.
63. The decision was adopted with 11 positive votes, one negative vote by the Russian Federation and three abstentions (China, India, UAE).
64. See Nico Schrijver, ‘A Uniting for Peace Response to Disuniting for War: The Role of the two Political Organs of the UN’ (18 March 2022) (https://www.leidenlawblog.nl/articles/an-uniting-for-peace-response-to-disuniting-for-war-the-role-of-the-two-political-organs-of-the-un).
65. ‘UN takes step to put veto users under global spotlight’, NPR (27 April 2022), https://www.npr.org/2022/04/27/1094971703/u-n-takes-step-to-put-veto-users-under-global-spotlight. NPR quotes the French deputy ambassador, Nathalie Broadhurst, but erroneously writes that France did not co-sponsor GA res 262/76. See on the French proposal text with n 24-26.
66. NPR (n 65).
67. ibid.
68. ibid.
69. Andrea Bianchi and Anne Peters (eds), Transparency in International Law (Cambridge University Press 2013).
70. Jon Elster, ‘Deliberation and Constitution Making’, in Jon Elster (ed), Deliberative Democracy (Cambridge University Press 1998), 97–122, 111.
71. Report of the International Commission on State Sovereignty and Intervention (ICISS) 2001, para 6.25.
72. ibid para 6.14.
73. Provisional Rules of Procedure of the Security Council, as amended 21 December 1982 (UN Doc. S/96/rev. 7); The UN Security Council Handbook: A User´s Guide to Practice and Procedure, Security Council Report, 2019, 14.
74. ILC, ‘Reports of the Commission to the General Assembly’, Yearbook of the ILC vol 2 (1966), 236; Wolfram Karl, Vertrag und spätere Praxis im Völkerrecht (Springer 1983), 21-46, 43 on the fluid boundary; Ian M Sinclair, The Vienna Convention on the Law of Treaties (Manchester University Press, 2d ed 1984), 138; Georg Nolte, ‘Report 1 – Jurisprudence of the International Court of Justice and Arbitral Tribunals of Ad Hoc Jurisdiction Relating to Subsequent Agreements and Subsequent Practice’, in Georg Nolte (ed.), Treaties and Subsequent Practice,  (Oxford University Press 2013), 169-209, 200. See specifically for the UN Charter, Philip Kunig, ‘United Nations Charter, Interpretation of’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press 2006), para 20: ‘[T]he limit of the treaty interpretation begins where it goes beyond the provisions of the UN Charter and becomes in effect an amendment. The definition of the line between the two remains difficult.’
75. Kunig (n 74), paras 4-5 and 19.
76. This is the main reason why Bardo Fassbender finds informal amendment of the Charter impermissible (Bardo Fassbender, The United Nations Charter as Constitution of the International Community (Leiden: Nijhoff 2009), 136-137).
77. See Trahan (n 22), at 121-22.
78. Enrico Milano, ‘Russia’s veto in the Security Council: Whither the Duty to Abstain under Art 27(3) of the UN Charter?’, Heidelberg Journal of International Law 75 (2015), 215-231; In Hindsight, ‘Obligatory Abstentions’, Security Council Report Monthly Forecast 2 (New York, 31 March 2014), available at https://www.securitycouncilreport.org/monthly-forecast/2014-04/in_hindsight_obligatory_abstentions.php; John Chappell, ‘Must Russia Abstain on Security Council Votes Regarding the Ukraine Crisis?’ Lawfare, 11 February 2022.
79. Art 27(3) ‘… provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.’
80. Paul Guggenheim, Traité de droit international public Tome II (Librairie de l’Université 1954), 236; Georg Dahm, Völkerrecht, Vol II (Kohlhammer 1961), 227-228.
81. Statement (n 6), Sec. I 8.
82. Trahan (n 22), 141.
83. China seeks to establish itself as a norm-entrepreneur. Some observers therefore see prospects for a Chinese accession to the veto-limiting initiatives (Vilmer (n. 29), 341); but see skeptically Trahan (n. 22), at 139 fn. 185.
84. Permanent Mission of the People’s Republic of China to the UN, Explanation of Position by China after the Adoption of Resolution ‘Standing mandate for a General Assembly debate when a veto is cast in the Security Council’, 27 April 2022 (http://un.china-mission.gov.cn/eng/hyyfy/202204/t20220427_10674706.htm).
85. UNCIO Vol VII, Summary Report of Twenty Sixth Meeting of Committee I/2, of 16 June 1945, 241-244 (244); also quoted in Blokker (n 7) at 71. Of course, this Chinese government of 1945 was before the Maoist revolution. But under international law as it formally stands, political and even revolutionary ruptures of government do not affect the identity of the state as an international legal person.