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Use of the ICJ Re the Veto

By: Bill Pearce

Bill Pearce QC was called to the bar in 1968 and has had a varied career as a barrister. He is currently retired and living in Victoria while continuing to serve as president for our Victoria chapter.

The recent misuse of the UN Security Council (SC) veto has prevented the SC from exercising its functions with respect to some of the gravest threats to international peace and security. Even the threat of the veto has far too often prevented the SC from exercising its functions. Rwanda, Syria, Georgia, Myanmar, Crimea, Yemen and most recently Ukraine come to mind. Since 2000 many initiatives have been put forward for countries to make a voluntary commitment to support decisive action to end crimes against humanity, war crimes, and genocide, but all have fallen short of gaining enough traction to be effective.

This article offers a solution in the form of an advisory opinion from the International Court of Justice (ICJ) as to the legality of the February 26th, 2022 Russian veto of the SC resolution for Russia to stop its invasion on Ukraine and withdraw its troops, based on the argument that Russia acted outside of the limitations imposed by the Charter upon Members of the UN to adhere to the Purposes and Principles of the Charter at all times.

Reform of the Charter to date has been hampered by Art. 27.3 of the Charter which provides that decisions of the SC must include the concurring votes of the permanent members. Various initiatives for voluntary change over decades have failed for the simple reason- the superpowers are not interested in relinquishing their power. There are only two options that are really open for change, one being a revitalization of the use of the UN General Assembly (GA) power to act when the SC is paralyzed (considered by myself in an article, which appeared in the last issue) and the other is a legal challenge to the veto. With respect to the latter, the Russia veto is the best case to take forward to the ICJ because the facts are so egregious and cry out for a remedy.

The starting point is to understand that every entity or person that is provided with a power of decision-making either through legislation or treaty (which is a contract) can only act within the power that is assigned to that body or person. If an entity or person acts outside that authority the acts are null and void as being ultra vires i.e. acts outside jurisdiction.

The main limitation on the SC power comes from their Art. 24(2) duty to “act in accordance with the Purposes and Principles of the United Nations” (which are set out in Arts. 1 and 2). To this, I would add all Members have the obligation to “fulfill in good faith the obligations assumed by them in accordance with the present Charter” (Art. 2(2)), one of which is to “refrain from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the Purposes of the United Nations”, (Art. 2(4)).

In Art. 1 first on the list is the purpose of maintaining peace and security “and to that end: to take effective collective measures for the prevention and removal of threats to the peace and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes…” (Art.1(1)).

Dapo Akande in his article “The International Court of Justice and the Security Council: Is There Room for Judicial Control of Decisions of the Political Organs of the United Nations” states that it is almost inconceivable there are no legal limits to the power of the SC when acting under Chapter VII, and that in particular the SC is constrained by jus cogens. The prohibition of genocide, crimes against humanity, and war crimes are jus cogen norms from which no derogation is ever permitted. The UN is a body under international law and subject to it. It follows that the SC is constrained by jus cogens.

The author gives us an example from the Bosnia Genocide case where Bosnia asserted that the SC resolution which imposed an arms embargo on Bosnia assisted the commission of genocide. Judge Eli Lauterpacht said that when the operation of that resolution began to make Members of the UN accessories to genocide it ceases to be valid and binding in its operation and such Members became free to depart from it. This was because the continuing embargo became a matter of doubt it required the further consideration of the ICJ. Even though the further hearing did not take place it demonstrates that SC decisions have to conform to international law.

Jennifer Trahan, Cambridge Professor, has written a book “Existing legal Limits to Security Council Veto Power in the Face of Atrocity Crimes” in which she advances the same argument in the context of SC vetoes being subject to jus cogens and in addition are subject to the Purposes and Principles of the UN quite independently of the jus cogens. This was recognized by Judge Weeramantry in the Lockerbie case as well as Judge Lauterpacht in the Bosnia case. I would even add that treaty obligations are also part of international law that permanent members must have regard to when exercising their veto powers.

For states that are party to the Genocide Convention they would have an obligation to “prevent” and to “ensure” respect for the Convention. The ICJ has held that “prevent” means everything in one’s power, depending on a state’s ability to influence. Trahan asks “Are the vetoes being used in line with these treaty obligations?” Clearly, they are not.

Russia’s veto to block a SC resolution directed at terminating Russia’s illegal invasion has the effect of facilitating Russia’s furtherance of the invasion and continuance of its illegal targeting of citizens beyond the aforesaid limitations to the exercise of Charter powers. Just as a hypothetical SC resolution that supported Russia’s invasion would be declared ultra vires, so too would the veto decision of one of its members having the same effect. There is not much debate as to the vires of the veto.

The real question is whether the ICJ can deal with the issue in the form of an advisory opinion with consequences, which are meaningful.

We must first ask: How does one engage the jurisdiction of the ICJ to deal with the issue? Here, Akande suggests that the broad language of Art. 96 which permits both the GA and the SC to request the ICJ to give an advisory opinion on “any legal question” permits the GA to request an advisory opinion respecting a SC decision and vica versa. That makes sense.

The next question is whether the ICJ would consider the issue to fall within its purview. In our domestic law, the question would be whether the question is justiciable. It would be argued that the Charter would not have come into being without a veto power given to the 5 permanent members (P5), who held most of the military power in the world (and would be the most called -upon nations to use military force to enforce the peace).

Since there were no restrictions placed on the veto power, since there was no requirement to provide any reasons for such a vote, and since none have been provided from the commencement of the Charter, the argument would be that the legality of a veto is off limits for the court to question.

This position is consistent with previous decisions where the ICJ has opted not to review decisions made by the SC under Art. 39 when declaring ”the existence of any threat to peace”. This is based on the grounds that the court has no right to substitute its opinion for that of the SC where the Charter has expressly given that discretion to the SC and the court has no right to substitute its judgment of the facts for that of the SC. The ICJ has stated in that regard that the court cannot review “political decisions on policy on which legal guidelines are lacking”.

The Purposes and Principles of the UN are expressed in the Charter and are easy to interpret and apply to the facts of most situations, especially the Ukraine crisis where it is obvious that Russia is trying to conquer the territory of a sovereign country. The fact of aggression and the fact Russia is intentionally targeting civilians are not questions that the Court will have any difficulty making a determination of fact upon, just as the court had no difficulty dismissing Russia’s pretext for entering eastern Ukraine on the basis that Ukraine was engaged in committing genocide on Russian-speaking peoples.

In other words, the legal guidelines are crystal clear and their application to the facts on the ground are not difficult questions and certainly not of a speculative nature. Furthermore, the question for decision is not a political question of a discretionary nature. The question to be decided is simply whether the exercise of the veto power was within the jurisdiction of the Court, a pure legal question.

In the Supreme Court of Canada case of Operation Dismantle v the Crown, the Court reviewed the statement of claim of Operation Dismantle which alleged that the Canadian government’s decision to permit the testing of the cruise missile constituted a violation of citizens’ section 7 Charter rights on the basis such testing would lead to use of the missile which would heighten the risk of nuclear war, and, that the decision to permit testing on Canadian soil would make Canada more likely to be a target for a nuclear attack.

The court found that the foreign policy decisions of independent nations were not capable of prediction on the basis of evidence to any degree of certainly approaching probability and that the nature of the reaction to the decision to testing of the missiles can only be a matter of speculation such that the appellant could never prove the causal link between the testing and the increased risk to the threat of nuclear conflict. In short, the court dismissed the claim on the basis that it did not disclose a reasonable claim and that the issues raised in the claim were non-justiciable.

In contrast, the issues presented on the legality of the Russian veto are not of a speculative nature and the ICJ is not presented with any issues of mixed fact and law that present any difficulty to decide.

Further, I would add that if the drafters of the Charter had the intention that the P5 should not be held to account for any breaches of the peace they committed, they would have made exceptions in the Articles referred to, that members of the P5 were not under such obligations to comply with the Purposes and Principles of the UN when voting as members of the SC.

In addition, Chapter VI of the Charter deals with Pacific Settlement of Disputes. Art. 33 obliges all members when engaged in any dispute “which is likely to endanger the maintenance of international peace and security” to first seek a solution through one or more of the dispute resolution mechanisms set out in that Article. When such mechanisms fail to settle the dispute the parties are required to refer the matter to the SC under Art. 37.

When the SC votes in such a matter parties to a dispute are required to abstain from voting (Art. 27(3)), the obvious purpose being to avoid a conflict of interest and permit the SC to make an impartial decision on a recommended course of action for the parties to the dispute. When Russia decided to invade Ukraine, it was not only in breach of the Principle requiring settlement of disputes by peaceful means (Art.2.3) but also the Principle to not use force against the territorial integrity or political independence of a state (Art.2.4). In addition, it was in breach of its obligation under Art. 33 to seek peaceful means to resolve the dispute with full knowledge that if such dispute was brought to the attention of the SC under Art. 27 in Chapter VI it would not have the power to exercise its veto.

In short, there exist compelling reasons for the ICJ to accept it has jurisdiction, in this case, to deal with the question as to the legality of the veto because to decline jurisdiction would encourage other like-minded P5 members to avoid Charter-mandated peaceful means to resolve disputes with other states, something that was clearly not contemplated by the Charter.

The other question that must be considered is what is the effect of an advisory opinion on the question of the legality of a veto vote by a permanent member? Art. 59 of the court statute provides that the decision would be binding on the parties to the case. In our hypothetical application for an advisory opinion, the parties would include Russia and the SC. This would allow the SC to treat the veto as being a nullity which would permit them to treat the resolution that was vetoed as having been passed. It would also allow the SC to follow up with another resolution to enforce the first without the concern that Russia could block it with another veto.

Most importantly though it would set a precedent which would likely greatly reduce the misuse of the veto going forward and it would rejuvenate the effectiveness of the SC to address peace and security issues without the necessity to make any modifications to the Charter.

In April of last year, I was in communication with Professor Trahan and she sent me an email response from Andras Vamos-Goldman, who was legal advisor to the Canadian Mission to the UN when Canada was on the SC, to a question whether the time was right to seek an advisory opinion and the pros and cons of same. In his response, Vamos-Goldman acknowledges that “there will never be a better moment for political will” but Russia and China will fight it tooth and nail and the P3 (the US, France and thr UK) may not like it either. “But, given that there is not likely to be a better chance for a while, I would encourage Canada—with others—to go forward.”

The end of the conflict does not seem to be close at hand. Even though it would have been much better for an application to have been made a year ago it is not too late to do so now because such opportunities do not often present themselves and a successful application would effectively reform the SC in a positive direction for generations to come.

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