Debating Deadlock: Reconsidering the Security Council Veto Power
By Daniel Brinkman, Graduate Editor, N.Y.U. Journal of International Law & Politics
Discussions around the use of the veto power by the permanent members of the Security Council—longstanding as they have been—are recrudescent following the invasion of Ukraine. In April 2022, the General Assembly passed a resolution which requires a formal meeting of the Assembly whenever the veto power is exercised. The resolution is a small but significant step among the attempts of U.N. members to increase the accountability and transparency of the Security Council.
The resolution—which was captained by Liechtenstein—was under consideration for more than two years before it was adopted on April 26, 2022. Widespread discontent among members of the Assembly over the Security Council’s inaction in relation to the crisis in Ukraine provided the impetus for implementing the procedure. A couple months earlier, on February 25, 2022, Russia exercised its veto power on a draft Security Council resolution which, on its terms, would have required Russia to cease its use of force against Ukraine and withdraw its military forces. Given the exercise of the veto, the resolution was not passed. However, the matter was subsequently transferred to the General Assembly under the Uniting for Peace resolution, which provides that the Assembly can consider a matter and make recommendations in circumstances of lack of Security Council unanimity.
The resolution implementing the new veto scrutiny procedure is short, with only five operative paragraphs. Relevantly, it provides that the President of the General Assembly must convene a formal meeting of the Assembly within ten working days of a permanent Security Council member having exercised the veto. Meetings are held for the purpose of holding “a debate on the situation as to which the veto was cast.” On an exceptional basis, precedence can be accorded in the list of speakers to permanent members of the Council who cast a veto. The resolution also invites the Security Council to submit a special report on the use of the veto to the Assembly at least seventy-two hours in advance of the meeting.
When a draft of the resolution was first considered for adoption by the Assembly, Liechtenstein explained that a group of member States had been working on the initiative for some time “due to growing concern that the Security Council has found it increasingly difficult to carry out its work in accordance with its mandate under the Charter,” with the increase in veto use being “the most obvious expression of that difficulty.” Liechtenstein outlined that member States had conferred the primary responsibility on the Council for the maintenance of international peace and security, and that the membership as a whole “should be given a voice when the Security Council is unable to act in accordance with the Assembly’s functions and powers as reflected in the Charter.” In that regard, they stated that the veto power is linked with the responsibility to achieve the purposes and principles of the U.N. Charter at all times. Other members also expressed concern over the use of the veto. Gabon, for example, commented that the veto power is “highly questionable in terms of its effectiveness and representativeness,” and noted that it had been used a total of 295 times since 1946.
The resolution might seem modest—even mechanistic—in its ambitions. It only provides for the convening of meetings for debates over veto use. And the Security Council’s special reports submitted prior to the meetings are, frankly, unremarkable—limited to, in brief terms, a summary of the voting results on the particular draft resolution at issue. At the same time, however, it is an unprecedented resolution by the Assembly aimed at reigning in the exercise of the veto power. It places the exercise of that power in view of the wider U.N. membership, where the rationale for its use in particular circumstances is opened for debate. In that regard, it makes the exercise of veto power more public and may have the effect of exerting an informal presence over Security Council deliberations and decision-making.
The new debating procedure may also form part of the context which ultimately catalyzes action in the Assembly. Since the resolution was adopted in April 2022, the Assembly has held three meetings over the course of that year in June, July, and October, corresponding respectively to uses of the veto in relation to North Korea’s ballistic missile use, the humanitarian situation in Syria, and referenda held in certain regions of Ukraine. During the Assembly’s October meeting regarding the situation in Ukraine, the Assembly “automatically took up” the failed Security Council resolution for debate, which ultimately led to the adoption of a resolution with similar operative paragraphs to the resolution which was vetoed in the Council, denouncing the annexation of the Ukrainian regions and demanding the withdrawal of Russia’s military forces. During the course of that meeting, several speakers were critical of Russia’s use of the veto in the circumstances and its hindering effect on the Council’s ability to maintain international peace and security. Overall, this way, the scrutiny procedure complements the Assembly’s powers under the Uniting for Peace resolution.
While the new procedure may cast a shadow of accountability in relation to Security Council decision-making, its importance and effect should not be exaggerated. There are still no formal restrictions placed over the exercise of veto power, and there may well be merit in the fact that the procedure promotes more debate over veto use without any substantive outcomes.
In this regard, the new procedure should be placed within the broader context of the continuing discussion taking place over Security Council reform, which has encompassed dialogue over reform of the veto. This is something the Assembly debated relatively recently in discussions last November. A number of proposals to reform the Security Council were discussed, including, for example, one which would expand its permanent and non-permanent membership. France, for example, indicated that it views Council reform as “essential to strengthen its authority and representativeness while preserving its executive and decision-making nature,” and that the Council should be enlarged to twenty-five members from its current fifteen and, within this, increase the number of permanent members to nine. France was also supportive of the proposal to suspend the use of the veto in “situations of mass atrocities.” Other U.N. members have indicated support for a complete removal of the veto, or to have its use constrained where it is unable to be exercised impartially, e.g., where a permanent member has a conflict of interest. As some commentators have noted, however, agreement for reform is “fraught with procedural and political challenges” given the difficulties of amending the U.N. Charter, which requires the approval by two-thirds of its general membership, including all five permanent members in the Security Council. Increasing the membership of the Security Council may be possible—as there is historical precedent in this regard—but many view substantive changes to the use of the veto as purely hypothetical and unrealistic, a point which was in fact made while discussing the adoption of the new scrutiny procedure.
It remains to be seen whether the new procedure for scrutinizing veto decisions will create momentum for, or result in, meaningful reform in the Security Council. It does, however, create an opportunity for a more democratic discussion over its use. And for some member States, at least, that is a step in the right direction.