UN Security Council Veto Power: A Boon or Bane?

Md. Pizuar Hossain

20 November, 2017 12:00 AM printer

UN Security Council Veto Power: A Boon or Bane?

Md. Pizuar Hossain

Kofi Annan, former United Nations (UN) Secretary – General, told the UN Security Council (UNSC) on 13 October 2017 to ‘push the Myanmar government to allow the Rohingya refugees sheltered in Bangladesh to return home in safety and with dignity.’ In the question of creating a UNSC Resolution against Myanmar military actions, he has expressed frustration as China and Russia, who have UNSC veto power, are yet to comment on the diplomatic move. Besides, Nikki Haley, Ambassador of the United States of America (USA), conveyed on 8 October 2017 that ‘any resolution imposing economic or military sanctions on Myanmar is likely to be vetoed either by China or Russia – or both.’          

 

When the whole world is looking at the UNSC with the hope that it will come up with a Resolution to solve the ongoing Myanmar Rohingya crisis, the issue of veto power of China and Russia appears like obstinate obstacles. It makes us remember the past experiences which have uncovered several pros and cons of the exercises of the veto power by the five permanent Members (P-5) i.e. China, France, Russia, the USA and the United Kingdom (UK) of the 15-Member UNSC. This piece of writing thereby endeavours to focus only on the veto power of the UNSC, its uses and abuses, criticisms, and proposed reforms with relevant examples.

 

The Charter of the United Nations, 1945 does not explicitly mention the term “veto” but in practice it refers to the right of the P-5 to inhibit the passing of resolutions on substantive questions by a “negative vote”. Both the permanent and non-permanent Members of the UNSC have one vote each. Nevertheless, procedural matters of the UNSC are decided by an ‘affirmative vote of nine Members’. On top, all other matters are decided by ‘an affirmative vote of nine Members including the concurring votes of the [P-5].’ The other matters fall into the residual type of non-procedural matters and are subjected to the veto. Here, if any one of the P-5 casts a “negative vote”, the UNSC’s resolution would not be approved. This particular vote given by the P-5 on substantive issues is regarded as the “open or real veto”.

 

 

Likewise, various dimensions of veto are found in practice such as the “double veto”, “hidden or pocket veto” etc. Regarding the “double veto”, the first veto is exercised to decide an issue as either procedural or substantive, and once decided that the matter is substantive, the second veto comes into play to decide the same. Concerning the “hidden or pocket veto”, it is typically used by the P-5 in closed-door informal consultations as a threat to use possible veto.

 

The scope of exercising the veto-power is limited. It has been unanimously agreed in the First Admissions (1948) case of the UN that all the P-5 are held to a standard of good faith in their exercise of the veto as clearly required in Article 2(2) of the UN Charter. As far as “abstention” is concerned, a question arises in the Namibia (1971) case that ‘does a voluntary abstention of a permanent Member prevents the adoption of any decision of the SC in the same way as a veto?’ Following the principle of travaux préparatoires, Article 27(3) of the UN Charter has been interpreted by the ICJ that an abstention, which is not an explicit veto, does not defeat the adoption of the decision.

 

The P-5 have cast some 321 vetoes while more than 230 draft resolutions have been vetoed during open sessions of the UNSC in the period between 1945 and April, 2017. The real reasons for using veto-power are hardly clarified by the Members, and it is almost impossible to find any justification of using the “hidden veto”. Therefore, it is very problematic to create an exhaustive list of its uses and abuses. For this purpose, three prominent scenarios are narrated below:-

 

[1] Firstly, the P-5 used to exercise the veto-power to defend the States with whom they maintain agreeable economic and diplomatic relations from the imposition of economic sanctions. For illustration, the US, the UK, and France vetoed, between 1987 and 1988, the imposition of economic sanctions against the apartheid regime in South Africa, despite persistent human rights violations were committed by Israel.

 

[2] Secondly, the P-5 used to use the veto-power to prevent the “peacekeeping” or “peace enforcement operations”. One of the most recent instances is the threat of using veto by Russia and China in 2004 concerning the Sudanese region of Darfur, where the Arab militias committed large-scale killing and raping of civilians. According to the Human Rights Watch, the two countries were driven by pure commercial motive as both China and Russia were involved in “arms trade” with Sudan, and China itself owned 40% share of main “oil field” of Sudan. Thus, they blocked the UNSC’s direct intervention and thereby, nearly 400,000 people died in effect.

 

[3] Finally, the practice shows that the P-5 used veto against re-election of the Secretary General(s), e.g. Kurt Waldheim in 1981 and Boutros Boutros-Ghali in 1996, of the UN Secretariat during closed sessions of the UNSC. Consequently, the P-5’s exercise of veto-power promotes division among the States, prevents enforcement mechanisms, and portrays the UNSC as an ineffective organ of the UN as a whole.    

 

As regards the critical appraisals and proposed reforms of the veto power, it should be mentioned that the UN Charter’s framers probably thought that the UN cannot function properly without the support of the most powerful States. Additionally, Bernhard Graefrath pointed out that, the UN Charter’s framers intended to use the veto as a “check and balance” device against the powers of the UNSC. However, the past experiences of exercising the veto-power make it apparent that it has lost its balancing capability and thus, it cannot function as a check and balance mechanism.

 

The fundamental problem is that, spreading the veto-power among the P-5 creates it difficult for nations to cooperate even when only one Member objects. Surprisingly, despite the UN Charter has incorporated effective enforcement mechanisms, the “Cold War” rendered it stillborn with the US and Russia’s veto against each other’s proposals. On top of that, in this 21st century, its admission of Members to give this privilege is now questioned because Germany and Japan are the UN’s present largest financial contributors while the UK and France contribute very less funds to this organization.

 

Hence, two wide-ranging proposals have been made. Primarily, the African Union (AU), the Arab League (AL), and the group of Non-Aligned Nations (NAN) proposed to abolish the veto power. Instead, which one of the mechanisms, among a “simple-majority”, “special-majority” requiring a two-thirds concurrence, “composite-majority” requiring a majority of both the P-5 and non-permanent Members, and “double-majority” requiring a majority of the entire SC and a majority of the P-5, is well suited needs to be evaluated.

 

Together with the previous proposals, certain specific proposals, inter alia, for reforming the veto-power have been evolved. Firstly, Mexico and the group of NAN suggested to limit the scope of the veto-power to the “enforcement actions” and to extend its non-application to the: (a) “pacific settlement of disputes”; (b) admission and expulsion of Members; and (c) election of the Secretary General. Secondly, the AU along with Italy, Mongolia, Singapore, and Tunisia recommended for extension of the veto-power only to preclude the UNSC from adopting a resolution when the same is cast by two or more Members of the P-5 concurrently, to limit a single permanent Member’s power. Lastly, as a matter of common justice, Germany, Japan, India, Brazil, the AU, and the AL proposed to extend the permanent Members of the UNSC where all the permanent Members will be entitled to exercise the veto-power.

 

In fine, the veto power has indeed confined the UNSC to the hegemonic international law. Nevertheless, the current Rohingya issue should not be an instance of mockery of the UNSC veto power. There should not be any repetition of the 1980s’ event of exercising veto power by the US, the UK, and France against the apartheid regime in South Africa regardless of persistent human rights violations committed by Israel. Again, China and Russia should not replicate the incident of 2004 anymore that resulted in death of nearly 400,000 people of Sudanese region of Darfur. Instead, both Russia and China should come forward along with other three Members to resolve the Rohingya crisis by adopting a UNSC Resolution at its best.    

 

REFERENCES
1. ‘US Call for Arms Ban to Myanmar Faces UNSC Hurdle,’ The Sunday Times, (Sunday, 8 October 2017).
2. Schindlmayr, Thomas, ‘Obstructing the Security Council: The Use of the Veto in the Twentieth Century’ (2001) 3 Journal of the History of International Law 218.
3. Soderberg, Nancy, ‘Time to Bring the United Nations Security Council into the 21st Century’ (2015) 16 Georgetown Journal of International Affairs 39.
4. Bailey, S D & Daws, S, The procedure of the UN Security Council (England: Oxford Clarendon Press, 3rd ed., 1998) 1.

 

The writer is working as a Lecturer at the Department of Law, East West University. He is also a researcher of International Criminal Law and Justice


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