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It came as no surprise to international lawyers when, on 25 February 2022, the day after Russia launched its invasion of Ukraine, Russia vetoed a UN Security Council (UNSC) draft resolution, backed by 11 UNSC members, calling for it to "immediately cease its use of force against Ukraine" and to "immediately, completely, and unconditionally withdraw all of its military forces" from Ukrainian territory. In the past, much attention has been given to the paralysis of the UNSC due to the fact that the five Permanent Members (P5) have often weaponised their veto right, as enshrined in Article 27 of the UN Charter, to advance their political interests. This includes instances when coordinated UNSC action could have ended, or in many cases prevented, mass human rights violations and atrocity crimes. The recent use of the veto by Russia further underscores the international community's concerns that the UNSC, through the P5's use and abuse of the veto, is failing to fulfill its primary responsibility to maintain international peace and security, and, more critically, to protect (potential) victims. However, there has been less focus on the fact that the veto is frequently (ab)used in situations involving violations of jus cogens: peremptory norms of international law that enjoy hierarchical superiority over all other norms and principles of international law.
The international community broadly agrees that Russia's invasion of Ukraine qualifies as an act of aggression, as it cannot be justified as an act of self-defence and has not been authorised by the UNSC. This is in conformity with the widely accepted definition of aggression adopted in UN General Assembly (UNGA) Resolution 3314 (XXIX):
'Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations'.
The ICC Prosecutor, Mr. Karim Khan, has also opened investigations into alleged crimes against humanity and war crimes committed in Ukraine. Generally, the prohibitions of aggression and crimes against humanity are accepted by regional, national, and international courts and tribunals as having the status of jus cogens. This means that, due to their hierarchical superiority in international law, these prohibitions are binding upon all States, even without their explicit consent. States cannot derogate from these obligations erga omnes except in situations where another jus cogens norm — such as the prohibitions of genocide, slavery, racial discrimination, and torture, as well as the right to (external) self-determination — is invoked. In his notorious speech on 23 February, President Putin did indeed accuse Ukraine of committing genocide against Russian-speaking civilians. However, since there is no evidence to support such claims, he could not reasonably invoke the jus cogens norm of genocide as a justification for violating the jus cogens prohibitions of aggression and crimes against humanity.
It is both highly problematic and somewhat paradoxical, that while Russia has violated one of the highest-ranking norms in international law, the prohibition of aggression, it is still able to use its veto as a Permanent Member of the UNSC to block any meaningful action that could put an end to its aggression. A few questions arise: Is the veto right really so absolute that it can be invoked in defiance of jus cogens? More broadly, does Russia's use of the veto highlight a fundamental lack of constraints on this power, preventing the UNSC from fulfilling its primary responsibility to maintain international peace and security, and thus protect human rights? To answer the questions posed, it is important to first ask whether there already exist limitations on the veto in cases where the UNSC could intervene to end or prevent further jus cogens violations, as well as restrictions on the UNSC itself.
Existing Limits on the Veto Power
One could, for instance, reference Article 41(2) of the International Law Commission's Articles on State Responsibility for International Wrongful Acts (ARSIWA), which states that no State 'shall recognize as lawful a situation created by a serious breach [of a peremptory norm], nor render aid or assistance in maintaining that situation.' The customary nature of said obligations is reinforced not only by UNSC Resolutions but also by wider international practice and decisions by the International Court of Justice. When a veto is exercised in the context of ongoing jus cogens violations, and a draft resolution is under consideration to address the situation, the veto could be deemed as contributing to the maintenance of that unlawful status quo. Accordingly, the P5 member exercising the veto could be seen as 'render[ing] aid or assistance' to the State responsible for the jus cogens violations. Whilst legitimate questions can be raised about whether vetoing a resolution aimed at remedying a violation of jus cogens actually amounts to 'recognizing as lawful' or 'render[ing] aid or assistance', these provisions do impose a general obligation on States to exert all possible efforts. For the P5, this includes the responsibility to exercise, or abstain from exercising, their veto power in ways that bring an end to jus cogens violations.
However, because Russia is directly responsible for the jus cogens violation, and is therefore not 'render[ing] aid or assistance' to another State, Article 41(1) of the ARSIWA may be more applicable in this case. This paragraph imposes a duty upon States to 'cooperate to bring to an end through lawful means any serious breach [of an obligation arising under a peremptory norm of general international law].' It is clear, therefore, that the P5 Member States are obligated to cooperate, and thus refrain from using the veto power, to end a situation involving a 'serious breach' of jus cogens. In the event that a threat to, or breach of, peace is identified under Article 39 of the UN Charter, along with the UNSC's primary responsibility to maintain international peace and security as per Article 24, P5 Member States are obligated to cooperate through the UNSC to resolve the situation. Therefore, the use of the veto — particularly when it is repeatedly exercised by any of the P5 members, leading to deadlock — undermines their duty to cooperate.
Furthermore, the argument that the P5 must refrain from using the veto in the face of jus cogens violations is reinforced by the UNSC's responsibility to comply with the Purposes and Principles of the UN set out in Articles 1 and 2 of the UN Charter. Article 1, for example, stipulates that:
'The Purposes of the United Nations are:
To maintain international 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 or situations which might lead to a breach of the peace'.
As stated in Article 24(2), the UNSC 'shall act in accordance with the Purposes and Principles of the United Nations', and must therefore act 'in conformity with the principles of justice and international law', such that the UNSC must adhere to jus cogens. Accordingly, given the significant influence of the P5 over the UNSC's actions, the use of the veto is unlawful if it compels the UNSC to act in a manner that is inconsistent with the Purpose and Principles of the UN.
Nevertheless, doubts do arise in relation to the veracity of said proposition, especially when considering that the concept of jus cogens was one that was only greatly developed and accepted after the adoption of the UN Charter, whilst the veto played an essential role in the establishment of the UN. These doubts can, however, be dispelled rather easily using the 'living instrument doctrine' (LID). First articulated and utilised by the European Court of Human Rights (ECtHR) in the case of Tyrer v. United Kingdom, the LID holds that the ECtHR must interpret the European Convention on Human Rights (ECHR) in 'light of present-day conditions', for it is an evolving, 'living instrument' (para. 31). As such, it could be argued that the text of the UN Charter should now be interpreted in accordance with the present day reality that jus cogens are an accepted category of international law that, due to its hierarchical superiority, takes precedence over the UNSC veto. However, considering that the LID is an ECtHR-developed doctrine used to interpret the ECHR, interpreting provisions of the UN Charter using it may be somewhat of a stretch. Still, due to the intrinsic relationship between jus cogens and human rights, and the fact that many human rights constitute jus cogens, the use of a doctrine developed and used by a human rights court to construe a human rights convention may actually be surprisingly appropriate. Moreover, according to Article 31 of the Vienna Convention on the Law of Treaties (VCLT), a treaty must be interpreted in its 'context and in the light of its object and purpose', and thus the UNSC and the P5 should now act in conformity with jus cogens.
Final Remarks
It is evident that international law already provides for limitations on the use of the UNSC veto in cases involving violations of jus cogens. However, Russia's blatant disregard for jus cogens and, more specifically, existing veto limitations, demonstrates the necessity for formal implementation of veto limits. Although there have been numerous initiatives from the international community to reform the UNSC, impose limits on the veto, and even abolish the veto altogether, these efforts have largely failed, given that the P5 possesses the power to veto any proposed amendments to the UN Charter. Accordingly, the notion that international law can stop Russia's war in Ukraine is, at least for now, far-fetched. Limiting the veto by harnessing the power of jus cogens remains a distant, theoretical possibility rather than a proximal practicality. However, if a sufficient majority of States publicly assert that existing veto limits are being ignored, and that Russia's (ab)use of its veto demonstrates a complete disregard for jus cogens, the resulting political pressure could bolster efforts to implement formal veto restrictions or even reshape the veto system entirely. Clearly, the international community must work together towards a UNSC that fulfills its responsibility to maintain international peace and security, and, more critically, to protect human rights and lives, by ending and preventing jus cogens violations, even when committed by veto-wielding, P5 members.
Robert Pixa is an LLB student at the University of Exeter. He is a passionate international law enthusiast as well as the founder and creator of MyLegalEye. The views expressed in this weblog are his own.
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