Melan Patel, Associate Editor, Michigan Journal of International Law
The Security Council reached an agreement on what to do with Syria’s chemical weapons, avoiding yet another black mark on the institution.[i] It also bought some time for reform. Alas, we know from history that reform most likely will not occur, and the Security Council will continue to destabilize and discredit the UN. How? Its simple: continued reliance on the veto, whether hidden or explicit, by the five permanent members. This power has, and continues to be the bane of the UN.
Article 27 of the UN Charter allows permanent members of the Security Council to quash a resolution with a negative vote.[ii] This veto power has always been an umbrella over the Security Council. Throughout the Cold War, the veto dominated policy as the U.S. and Soviet Union battled amongst each other regarding peacekeeping operations.[iii] At the conclusion of the war, veto usage drastically fell; however, this has not spelled the end of the veto. A “pocket veto” has emerged.[iv] Since the council conducts its business in private sessions, members have freedom to pressure and bully less powerful members with the threat of the veto. Thus, the veto, while declining in formal use, continues to shape how the UN does business.[v]
One need not look hard to find instances where the veto has led to disastrous consequences that fly in the face of the purpose of the UN and particularly, the Security Council. One of the most blatant examples involves the Rwandan genocide in 1994. Lasting four months and leading to over 800,000 deaths, the Security Council was left inept at the hands of the veto.[vi] The United States and France explicitly blocked measures including the creation of an intervention force.[vii] Furthermore, Furthermore, the United States and France used the threat of their vetoes when defining the scope of the Rwandan intervention, leading to the Security Council failing to adopt the proposal that the actions occurring in Rwanda constituted genocide. A later UN report indicated that “a force numbering 2,500 should have been able to stop or at least limit” the genocide.[viii] The report concluded that the Security Council was responsible for the scale of the genocide.[ix]
Even more recent is the use of the hidden veto in 2011 by Russia and China to block any attempts of a UN resolution against the Syrian governments use of military force against protestors. With Russia and China threatening a veto, the resolution was not quashed without a vote.[x] Twice more, after escalations of force by the Syrian government, resolutions were blocked. As Russia had wanted, the only action taken was a presidential statement condemning the action. Instead of responding to a threat to peace and security, the UN was neutered by the pocket veto.[xi]
All of this leads back to the current situation in Syria and the response to the use of chemical weapons. The initial U.S. intention was to use military force to recover remaining chemical weapons.[xii] However, after extensive back room negotiations, the deal requires Syria to give up its chemical weapons, with no automatic penalties for a failure to comply.[xiii] It is almost certain that Russia threatened the veto in these back-room negotiations, forcing other Security Council members to create a watered down solution. What’s wrong with this solution? First, Syrian non-compliance does not result in use of force by the Security Council, instead, negotiations restart where Russia can again threaten the veto.[xiv] Additionally, this seems a difficult plan to implement given the civil strife currently occurring in the nation. All in all, it represents the power of the veto to water down UN policy on preserving international peace and security.
The question thus becomes how to reform the system to provide for adequate responses to such threats to peace and security. Abolition is simply not going to happen. No permanent member will give up its political advantage. A possible solution could involve limiting the use of the veto. Certain categories of issues could be deemed veto-proof. For example, the Security Council has pledged to refrain from using the veto in cases of genocide and large-scale violations of human rights (although there is still the problem of defining these violations).[xv] An expansion to issues involving weapons of mass destruction and genocide would provide the Security Council the power to respond to the gravest threats, while allowing vetoes for threats of lesser significance.[xvi]
An alternative could be to allow the Security Council to override the veto of one of its members. Perhaps a 4/5 majority of permanent members or of Security Council members (12/15) could override a veto in the categories mentioned above.[xvii] This method seems the least drastic while giving the Security Council the power needed to get around the veto power when absolutely necessary. Yet, even this seems unlikely given that Russia has repeatedly asserted that it will not accept any limitations on its right of veto.[xviii]
It remains to be seen if any reform will be taken, but it is needed. The Security Council may be able to respond to the Syrian atrocities, but for every back-door agreement on Syria, there is the case of Rwanda, and that is simply unacceptable for the pre-eminent peacekeeping organization in the world.
[i] Michael R. Gordon, U.N. Deal on Syrian Arms Is Milestone After Years of Inertia, N.Y. Times (Sept. 28, 2013), http://www.nytimes.com/2013/09/27/world/middleeast/security-council-agrees-on-resolution-to-rid-syria-of-chemical-arms.html.
[ii] U.N. Charter art 27, para. 3.
[iii] Richard Butler, Reform of the United Nations Security Council, 1 Penn St. J. L. & Int’l Aff. 23, 31 (2012).
[v] Id. at 30.
[vi] Jan Wouters & Tom Ruys, Security Council Reform: A New Veto for a New Century, Egmont Papers at 1, 16.
[x] Sahar Okhovat, The United Nations Security Council: Its Veto Power and Its Reform 15 (Univ. Sydney. Ctr. for Peace & Conflict Studies, Working Paper No. 15/1, 2011).
[xi] Id. at 19.
[xii] Gordon, supra note 1.
[xiii] Gordon, supra note 1.
[xiv] Gordon, supra note 1.
[xv] Kamrul Hossain, The Challenge and Prospect of Security Council Reform, 7 Regent J. Int’l L. 299, 316 (2010) (citing Andrew Mark, The Secretary General’s High Level Panel Report (Jan. 15, 2009), available at http://www.hsrgroup.org/workshops/newyork/newyorkconcept.pdf.).
[xvi] Butler, supra note 3, at 36.
[xvii] Inocencio Arias, Humanitarian Intervention: Could the Security Council Kill the United Nations?, 23 Fordham Int’l L.J. 1005, 1026 (1999).
[xviii] Hossain, supra note 15, at 311.