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Stripping Russia's veto power on the Security Council is all but impossible. Perhaps we should expect less from the UN instead

  • Written by Tamsin Phillipa Paige, Senior Lecturer, Deakin University

Ukrainian President Volodymyr Zelensky has lambasted[1] the UN Security Council yet again, saying in a speech this week that as long as Russia has veto power on the body, it will remain powerless to do anything to stop the war in Ukraine – or any other conflict.

Ukrainian soldiers are doing with their blood what the UN Security Council should do by its voting. […] Veto power in the hands of the aggressor is what has pushed the UN into deadlock.

Every time a member of the five permanent members of the UN Security Council – the US, Russia, France, the UK and China – engages in abhorrent actions, we see a wave of voices decrying the powerlessness and failure of the UN to stop conflict and atrocities.

Most recently, this has been focused on the Russian war in Ukraine. We also saw this criticism in relation to the US- and UK-led invasion of Iraq[2] in the early 2000s.

The central part of this criticism is that the five permanent members of the Security Council (commonly referred to as the “P5”) have a veto power, which can prevent UN action when they have engaged in wrongdoing. The other 10 rotating members of the Security Council do not.

This veto power is what has prevented Russia from being expelled from the UN, as Zelensky has repeatedly called for[3], because suspension or expulsion of a member from the UN requires action from the Security Council[4].

This criticism is entirely reasonable – the P5 shouldn’t be able to prevent the UN from acting against them. However, this isn’t a failure of the UN itself, but rather a design feature baked in to the whole UN system.

And reform of the UN is functionally impossible, which is why we need to stop expecting so much from the global body.

Some are more equal than others

Article 2(1) of the UN Charter says[5] the UN is based on the principle of sovereign equality. This, in principle, should mean all nations are equal under international law.

In reality, even when just considering the rest of the UN Charter, it is clear this is not the case. Yes, all nations in the UN General Assembly have one vote and all those votes have equal weight, but this is somewhat insignificant because the work of the General Assembly isn’t legally binding.

The only UN body that has the power to make binding international law is the Security Council. And this only happens when it is acting under Chapter VII[6] of the UN Charter for the maintenance of international peace and security.

In order for a resolution to pass in the Security Council, it must have the support of at least nine members – and, critically, no opposing vote from a member of the P5. This is what is meant by the P5 veto power.

Read more: Is international law powerless against Russian aggression in Ukraine? No, but it's complicated[7]

When the UN Charter was being drafted at the end of the second world war, the allied powers and France agreed to enshrine themselves into the document as the P5.

Notably, the group included the “Republic of China”, the government led by Chiang Kai-shek in Taiwan, which held the Security Council seat until the General Assembly expelled Taiwan and gave the seat to the People’s Republic of China in 1971. And when the Soviet Union disbanded in the early 1990s, Russia inherited its seat on the Security Council through the Alma-Ata Protocol[8].

The charter gave the P5 the ultimate responsibility for maintaining international peace and security, while also functionally removing them from scrutiny because they possess veto power.

This wasn’t a design oversight or failure, it was an intentional decision. This is clearly seen when you examine[9] the wording of Article 27(3). This article requires a Security Council member to refrain from voting on a matter if they are party to a dispute – but it does not apply to resolutions invoking Chapter VII (that is, a legally binding resolution).

The fact the charter includes a restriction on the veto but only in relation to non-binding resolutions demonstrates an intention to place the P5 beyond scrutiny.

John Negroponte, right, the US ambassador to the UN, vetoed a resolution in 2002 that would have condemned Israel for the killings of several UN employees. David Karp/AP

So, what about veto reform?

If the existence of the veto prevents any Security Council action from being taken against Russia for its invasion of Ukraine (or against any other P5 state when they engage in similar conduct), why don’t we just reform it?

Well, this can’t be done because the drafters of the UN Charter made reform incredibly difficult. Namely, the P5 ensured they have a right to veto any proposed reforms to the UN structure by requiring[10] all charter amendments to be ratified by each of them, in addition to getting a two-thirds majority in the General Assembly.

In essence, this means reforming the UN Charter is off the table because the P5 would be able to veto a reduction of their veto power.

Read more: Don't be too quick to condemn the UN Security Council power of veto[11]

The only avenue left for reform is to dissolve the UN Charter and reform the UN under a new treaty that limits or abolishes the power of the veto.

Given the state of global solidarity is very different today compared to the end of WWII when the UN was established, I’m loathe to test this approach. A P5 that is restrained by the Charter when it suits them is less dangerous than a P5 that opts out of international law entirely, leaving them completely unrestrained in their aggression.

The Security Council convening in New York this week. Justin Lane/EPA

Tempering our expectations

Yes, this means the UN is powerless to address Russian aggression in Ukraine, in the same way it was powerless to address US and UK aggression in Iraq. And yes, this seems to go against the initial purpose[12] of the global body, which was created to:

to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.

The Security Council, too, was given the mandate of maintaining international peace and security[13] when it was created, as Zelensky has repeatedly pointed out[14].

But in accepting that mandate, the P5 ensured they wouldn’t be subject to it. In creating the UN, they placed themselves above the law and above the power of the UN specifically so they could avoid scrutiny of their actions. They also ensured they could prevent any reform of the UN to limit their power.

As a result, maybe it is time we start treating the UN for what it is – a diplomatic congress aimed at making the world a little better through encouraging cooperation. Rather than what we hope it to be – a world government capable of effecting peace.

Read more https://theconversation.com/stripping-russias-veto-power-on-the-security-council-is-all-but-impossible-perhaps-we-should-expect-less-from-the-un-instead-213985

The Conversation

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