CGA Clinical Professor Jennifer Trahan provided an intervention at a recent meeting at the United Nations on "Perspectives on UN Security Council Reforms from Global South Think Tanks - The L-69 UN Security Council Reforms Event."
The event was streamed on UN Web TV and the video can be found here. Professor Trahan's remarks take place at 1:29:35. The full text can also be found below:
I commend the Permanent Mission of India for holding this important and timely discussion and am delighted to be invited to join. I am a Professor at NYU’s Center for Global Affairs and Convenor of the Global Institute for the Prevention of Aggression.
My scholarship has focused on two areas that could reform the UN Security Council that exists --- and make it a more effective Council also if enlarged.
It focuses on:
(1) veto use by the permanent members of the UN Security Council in the face of atrocity crimes; and
(2) obligatory abstention from voting as to Security Council resolutions under Chapter VI.
And, I note that in neither area would a UN Charter amendment be required.
As to the former topic, I have written a book: Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes. In it, I argue that vetoes cast while there is ongoing genocide, war crimes, or crimes against humanity when the Council is voting on a resolution that could prevent or stop the crimes, are contrary to international law.
The veto is not separate and apart from the system of international law, but sits within such a system. It must be read and used consistently with obligations to respect: (1) jus cogens; (2) the UN Charter, including its Purposes and Principles; and (3) treaty obligations, such as those found in the Genocide Convention and Geneva Conventions. This would lead to a Security Council that is less deadlocked, making it more effective, irrespective of its size and composition.
I am happy to provide more details on my legal arguments to states who are interested, as I have handouts to share.
States should: raise such legal arguments; consider acknowledging them in a General Assembly resolution; and consider having the General Assembly send a question to the International Court of Justice such as the following: Does existing international law contain limitations on the use of the veto power by permanent members of the UN Security Council in situations where there is ongoing genocide, crimes against humanity and/or war crimes? One might even consider adding to the question a veto in the face of ongoing aggression. We have seen too many vetoes that appear at odds with these legal obligations.
As to the second topic, obligatory abstention, I encourage focus on the language in Article 27(3) of the UN Charter that in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.
Hence, if the Council is voting on a resolution under Chapter VI, a party to a dispute must abstain from voting.
For example, Russia is clearly a “party to a dispute” in the situation of Ukraine. Russia, therefore, under this language, is obligated to abstain from voting on a resolution under Chapter VI that is on the situation of Ukraine.
Admittedly, the Council does not always make use of this language. It has been used approximately twelve times, and the issue of abstention has arisen approximately fourteen other times.
So, it sometimes is applied. Thus, it cannot be argued that this language has been waived.
If states would utilize this language, it could usher in a Security Council more able to act even when a permanent member is involved in the situation at issue.