The war in Ukraine and legal limitations on Russian vetoes

ABSTRACT

A veto exercised by a permanent member of the UN Security Council to shield that state’s own manifest and prima facie aggression from condemnation and collective action by the Council is legally flawed. The UN Charter can be reasonably interpreted as prohibiting such a veto and depriving it of legal force. This flows from Article 27(3) of the Charter, in conjunction with the prohibition of the abuse of rights, as a manifestation of the principle of good faith, and the obligation to respect the right to life, against the background that the prohibition has the status of jus cogens. These norms generate a legal responsibility of all Security Council members to treat such vetoes as abusive and therefore as an abstention.

KEYWORDS:

• UN Security Council
• aggression
• veto
• abuse of law
• good faith
• right to life

1. Introduction

In its war against Ukraine, ongoing since 2014, and reaching a new level of aggression since 2022, Russia has repeatedly vetoed draft UN Security Council resolutions that concerned its activities in the neighbouring state.¹ In this context, the US ambassador to the United Nations stated that ‘any Permanent Member that exercises the veto to defend its own acts of aggression loses moral authority’.²

This article argues that a veto exercised to shield that state’s own act of manifest and prima facie aggression not only lacks moral authority but is moreover legally problematic. The UN Charter can be reasonably interpreted as prohibiting such a veto and depriving it of legal force. This argument can be based on Article 27(3) of the Charter (section 2), in conjunction with the prohibition of an abuse of rights as an application of the general principle of good faith (section 3).

Additionally, two procedural strategies to end abuses of the veto have recently been espoused. First, over 100 states – including the three permanent members of the Security Council – have, in different variants, committed themselves not to exercise the veto in certain situations, notably in the face of mass atrocities (the ACT Code of conduct,³ the French-Mexican initiative,⁴ and the recent US-American pledge⁵). Second, the ‘veto initiative’ under General Assembly resolution 76/262 of 2022 introduced a mandatory General Assembly meeting in which the state that had cast its veto must explain it before the entire UN membership.⁶ These strategies are analysed elsewhere.⁷

2. Violation of the duty to abstain from voting

A veto cast to prevent collective action against the vetoing state’s own manifest prima facie act of aggression violates the Charter obligation to abstain from voting under specific conditions. Along this line, the delegate of Georgia deplored in a recent General Assembly debate ‘[t]he failure of the Council to adopt a draft resolution to stop Russia’s aggression’.⁸ Georgia reiterated ‘that a permanent member of the Council should have its veto right restricted when it is involved in the conflict or situation under consideration, in line with Article 27, paragraph 3, of the Charter of the United Nations, which clearly stipulates that the party to a dispute shall abstain from voting.’⁹ Already in 2016, the Ukrainian delegate in the Security Council had stated: ‘It is a disgrace that paragraph 3 of Article 27 of the Charter – that a party to a dispute shall abstain from voting – continues to be blatantly ignored. It is imperative that clear proceedings be introduced for operationalizing and properly implementing this Article.’¹⁰

Following this clue, the scope and content of the said Charter provision and its potential to remove the illegitimate blocking of the Security Council will be explored. Article 27(3) UN Charter foresees an obligatory abstention for all members of the Council when the decision is not procedural, when there is a ‘dispute’, when that state is a ‘party’ to the dispute, and when the decision falls under Chapter VI or VIII (not under Chapter VII).¹¹

The practice on Article 27(3) is inconsistent and scarce.¹² A recent example of non-application of the provision is the draft Security Council resolution of 15 March 2014 that sought to condemn the attempted annexation of the Ukrainian peninsula Crimea by Russia. The draft characterised the constellation as a ‘dispute’, and did not contain any reference to Chapter VII, which means that the resolution was proposed under Chapter VI.¹³ This draft resolution thus exactly fulfilled the requirements of the obligatory abstention as laid out in Article 27(3) of the Charter. Russia nevertheless exercised its veto, and no other member state protested against its veto use.¹⁴

Scholars have commented that decades of non-invocation of the abstention clause of Article 27(3) have ‘undermined the potency of obligatory abstention’ and that abstention has thus become ‘voluntary in practice’.¹⁵ This state practice might count as a ‘tacit agreement’ effacing the clause,¹⁶ or Article 27(3) of the Charter might have fallen into ‘desuetude’.¹⁷ The long-lasting non-abstentions might also count as subsequent practice in terms of Article 31(3) lit. b) of the VCLT that has manifested an interpretative agreement to construe the Charter provision in an excessively narrow fashion.

Assuming that such a reductive interpretation bordering on an informal amendment of the UN Charter had any legal force, it can again be changed: ‘the clock can be turned back’, as Enrico Milano has argued.¹⁸ It is in legal terms perfectly possible to return to states’ and scholars’ proposals to read the clause broadly and extensively, in order to avoid the paralysis of the Council against blatantly unlawful P5 behaviour, as it had indeed been widely assumed in the first decades of the life of the United Nations.¹⁹

Article 27(3) can be read broadly, relying on textual, systematic, and teleological interpretation. First, the wording of the provision allows some leeway, because the distinction between ‘dispute’ and ‘situation’ is fluid.²⁰ For example, the occupation and attempted annexation of Crimea by Russia was qualified as a ‘dispute’ over territory by the sponsors of the previously-mentioned (vetoed) Security Council resolution draft.²¹ Canada stated that the ‘Russian Federation is the party committing the aggression’ of 2022.²² Nothing prevents such disputes being tabled under Chapter VI of the Charter.

Second, the historical analysis demonstrates that the authors of this Charter provision intended to exclude from voting those states that were involved directly in a matter whose continuance might endanger international peace and security.²³ The voting procedure in the future Security Council, i.e. the content of what later became Article 27 of the UN Charter, was agreed upon at a conference of the heads of state of the ‘big three’ powers (USA, Soviet Union, and UK) in Yalta, Crimea, in February 1945. Here, the statesmen, inter alia, discussed the project of a new World Organization. The so-called ‘Yalta formula’ already encompassed the right of veto, except for procedural matters, and also the duty to abstain under certain conditions.²⁴ The sponsors of the Yalta formula (to which China and France later subscribed) highlighted their duty to abstain from voting as follows: they mentioned that the League Council had been stymied because parties ‘to a dispute’ was interpreted narrowly. Thus, the relevant League member did not have to abstain and was therefore always able to block a decision by the Council of the League. In their 1945 statement on the Yalta formula, the four sponsoring states mentioned the blockade of the League Council as a counterexample in order to demonstrate that their new (Yalta) formula would not lead to a similar blockade as in the era of the League of Nations.²⁵

Third, besides wording and historical motivation of the abstention clause, its object and purpose is relevant. The underlying rationale of the provision of Article 27(3) is the general principle that no one may be judge in their own cause. It is submitted here that this rationale should govern not only the narrow situation of litigation before a judge, but also conflicts before a body like the Security Council, which after all represents the world community and holds a world police-power.

Upon these considerations – the wording, the historic intention of the drafters themselves, and the provision’s purpose – the requirement of abstention can be broadly construed. The current situation between Russia and Ukraine (and its allies) is a ‘dispute’ broadly conceived.²⁶ In such a reading, Russia would be disqualified from voting on draft resolutions tabled under Chapter VI concerning its own aggression in Ukraine.

3. Abuse of rights and bad faith

The second line of argument is that the exercise of the veto to shield one’s own manifestly illegal action constitutes an abuse of right, and – relatedly – a violation of the general principle of good faith.

3.1. State practice

The abuse of a right and/or bad faith has been regularly invoked by states in the context of certain types of vetoing.²⁷ The US commented on the Russian veto against a Security Council draft resolution on cross-border humanitarian assistance in Syria that ‘[t]here is no question that, in vetoing a draft resolution authorizing humanitarian aid to the most vulnerable Syrians, one Council member abused its veto.’²⁸ The argument of abuse and the irreconcilability of specific vetoes with the UN Charter was also invoked explicitly or implicitly by several states in the context of a Security Council draft resolution to condemn intercontinental missile launches by the DRNK that was vetoed by Russia and China in 2022.²⁹ Norway deplored vetoes ‘preventing the Council from fulfilling its mandate for the maintenance of international peace and security’.³⁰ Germany stated: ‘If two Council members refuse to act on that responsibility, they do so in opposition to the purposes and principles of the United Nations.’³¹ Peru stated that ‘[a]ccording to a systematic interpretation of the Charter, the veto cannot be used in situations in which its exercise might have a negative impact on the maintenance of international peace and security.’³² Lithuania was ‘concerned that the misuse of the veto power by Russia and China – two permanent members of the Security Council – has prevented the Council from acting in fulfilment of its responsibility to maintain peace and security.’³³ And in the General Assembly debate on remedy and reparation for the war damage inflicted upon Ukraine, the Ukrainian delegate highlighted that the emergency special session of the General Assembly, within the Uniting for Peace framework, was ‘designed for instances just like this, when a country like Russia abuses its veto power.’³⁴ The legal merits of these political statements will be examined in the following sections.

3.2. Legal limits to the exercise of the Charter-based voting rights

The prohibition of the abuse of rights is one manifestation of the broader principle of good faith.³⁵ As the WTO Appellate Body put it:

One application of this general principle [of good faith], the application widely known as the doctrine of abus de droit, prohibits the abusive exercise of a state’s rights and enjoins that whenever the assertion of a right ‘impinges on the field covered by [a] treaty obligation, it must be exercised bona fide, that is to say, reasonably.’ An abusive exercise by a Member of its own treaty right thus results in a breach of the treaty rights of the other Members and, as well, a violation of the treaty obligation of the Member so acting.³⁶

The Appellate Body’s legal reasoning concerned the exercise of treaty rights under the GATT by WTO members. The same principle has been applied to other international treaties. For example, the 2023 arbitral award in the inter-state dispute over the Iraq-Turkey Pipeline Agreements held: ‘International law places good faith performance obligations on State parties to a treaty (…). Good faith also requires the parties to a treaty to act honestly, fairly, refrain from taking unfair advantage and to honour legitimate expectations’.³⁷ This finding is relevant for Russia in its role as a party to the UN Charter that it must apply in good faith.

The idea has been applied to the exercise of voting rights by UN member states in the Security Council, as we have seen (sec. 3.1). The participation in such voting is a treaty-based right granted to the members of the Security Council, including the P5, by the UN Charter. It may not be abused.

The proposition that good faith and abuse of rights limit the exercise of the veto does not deny that political and self-serving considerations may legitimately motivate a veto, but merely registers that the legal principle of good faith and the legal prohibition of an abuse of rights constitute relevant benchmarks to assess the lawfulness of political action. When voting in the UN (both in the General Assembly and in the Security Council), each state is ‘legally entitled to make its consent (…) dependent on any political consideration which seem to it to be relevant’, to quote the dissenting opinion of Judges Basdevant, Winiarski, Sir Arnold McNair, and Read in the ICJ advisory opinion on the UN membership admission conditions.³⁸ However, these political considerations are still governed by the legal principle of good faith. Voting in the United Nations allows the member states’ ‘taking into account of any factor which it is possible reasonably and in good faith to connect with the’ legal conditions laid down in the relevant charter provisions, to quote the judicial majority in the said ICJ advisory opinion.³⁹ The dissenting judges expressed this point in more legal terms: ‘In the exercise of this power [the voting power] the member is legally bound to have regard to the principle of good faith.’⁴⁰ Put differently, the legal principles of good faith and abuse of rights mark the (admittedly blurry) line between the lawful exercise of discretion and unlawful arbitrariness in voting, as Judge Lauterpacht once explained in another case.⁴¹

3.3. Abuse of the veto to shield one’s own aggression

When one of the P5 uses its veto power arbitrarily or excessively and obstructs a collective action, it does not act in good faith.⁴² This applies all the more when a veto is cast to shield own conduct that manifestly and prima facie constitutes the crime of aggression. Such use of the veto constitutes an abuse of rights.⁴³

The inadmissibility of such a veto flows from the law as it stands: All members of the Security Council, and especially the P5, are obliged to cooperate loyally towards the functioning of this organ of the United Nations. They must use best efforts so that the Council can fulfil its mandate which is to maintain international peace and security (Article 24(1) UN Charter). The Security Council is the fiduciary of the international community, and is therefore bound by fiduciary duties.⁴⁴ It ‘shall act in accordance with the Purposes and Principles of the United Nations’ (Article 24(2) UN Charter). One of those ‘Principles’ is the promotion and encouragement of respect for human rights (Article 1(3) UN Charter).

A P5 that is (like Russia) a state party to the ICCPR is bound both to fulfil its obligations under the UN Charter and its treaty-based human right obligations flowing from the Covenant. According to the interpretation of the ICCPR, as set out in the General Comment of the UN Human Rights Committee, ‘States parties engaged in acts of aggression as defined in international law, resulting in deprivation of life, violate ipso facto article 6 of the Covenant.’⁴⁵ The combination of legal commitments flowing from both the UN Charter and from the ICCPR generate the obligation not to violate the right to life and not to commit an aggression. The corollary is the obligation not to veto a credible Security Council draft resolution that demands the aggressor to cease this unlawful action.

A final consideration is the status of the prohibition of aggression as a peremptory norm (jus cogens).⁴⁶ The Security Council itself is bound by jus cogens.⁴⁷ States are also bound to respect jus cogens. The status as jus cogens signifies that the prohibition of aggression is ‘hierarchically superior to other rules of international law’ to use the terms of the ILC.⁴⁸ As a legal consequence, no Security Council decision and no vote leading to this decision may derogate from this norm, and these acts cannot modify the prohibition of aggression.⁴⁹ Concomitantly, also the absence of a condemnation of an act of aggression does not per se ‘derogate’ from the prohibition of aggression. However, such passivity of the Council risks to weaken the peremptory norm. Such weakening runs against the spirit of jus cogens and undermines the function of this special category of norms. Weakening should be contained or avoided by all legal means available. One such legal means is the identification of a veto as abusive.

What are the legal consequences of an abuse of the veto? Jennifer Trahan has suggested that an abusive veto is ‘void’.⁵⁰ We need not go that far, and can avoid thorny questions of legal doctrine about the legal nature of the veto by linking the questions of abuse and abstention. It would be in keeping with the rationales of Article 27(3) to treat the abusive veto as an abstention. And the elevated status of the prohibition of aggression as jus cogens offers an additional legal argument in favour of treating a veto shielding one’s own aggression as an abstention, in order to further the objectives of the provision of Article 27(3), as explained previously.

To conclude, the legal argument of abuse (a manifestation of bad faith), as regularly pleaded by states, is apt to bar a veto that employs the right to veto for a manifestly unlawful end, namely, to prevent a Security Council decision on the vetoing state’s own manifest prima facie aggression that violates jus cogens. Such an abusive veto, treated as an abstention, would thus be unable to prevent the adoption of a condemnation of an aggression, in a Security Council resolution tabled under Chapter VI.

The remaining question is who may decide whether a veto is indeed abusive. This power is incumbent on the UN General Assembly, especially under the Uniting for Peace procedures. It could also be decided by the ICJ in an advisory opinion. This has been recently suggested by the Council of Europe’s Parliamentary Assembly, specifically in relation to the Russian vetoes.⁵¹

4. Conclusion

This contribution has argued that the duty to abstain from participating in a decision concerning one’s own cause (Article 27(3) of the UN Charter), in conjunction with the principle of good faith/the prohibition of abus de droit, and taken together with the obligation to respect the right to life and the overarching requirement to respect jus cogens, generates a legal responsibility of all Security Council members to treat the Russian vetoes as abusive. When such vetoing occurs on draft resolutions tabled under Chapter VI (or Chapter VIII), the veto can, as developed here, persuasively be qualified as an abstention. This argument does not call into question the legal right of the P5 to exercise the veto at their discretion, for furthering their own interests, even if in tension with their responsibility to contribute to maintaining world peace. The very narrow point is only to call into question the legitimacy of a vote shielding a manifest prima facie aggression of the state casting the veto.

Practice in the Ukrainian crisis has not drawn the legal conclusions presented in this paper. There are many pragmatic and prudential reasons for not drawing them. The course of states not to plead what has been presented here as legally arguable is an expression of the ‘realism’ that pervades the international legal discourse, i.e. the belief that insistence on legal arguments might make political negotiations more difficult and may prevent peace, and that they should therefore not always take over. Legal scholars, too, are well advised to take note that the United Nations, including its most powerful organ ‘exists in a world of sovereign states, and its operations must be based in political realism.’⁵²

However, realism is only one possible posture towards the international world in which ideational and material factors come together, and where actors, structures, and coincidence bring about changes of the law. Another posture is idealism, a belief in the power of ideas. Both postures, in varying intensity, guide human conduct and institutions-building. Therefore, the workings of the United Nations are not only governed by realism: the organization is ‘also the repository of international idealism, and that sense is fundamental to its identity.’⁵³ It remains to be seen whether the legal arguments in this paper are picked up in a political momentum that strengthens rather than undermines this repository of international idealism.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

Notes

1 In 2014: UNSC Draft Res, UN Doc S/2014/189 (15 March 2014); vetoed by Russia (UNSC Verbatim Record, UN Doc S/PV.7138 (15 March 2014) 3). In 2022: UNSC Draft Res, UN Doc S/2022/155 (25 February 2022); vetoed by Russia (UNSC Verbatim Record, UN Doc S/PV.8979 (25 February 2022) 6). UNSC Draft Res ‘Maintenance of peace and security of Ukraine’, UN Doc S/2022/720 (30 September 2022); vetoed by Russia (UNSC Verbatim Record, UN Doc S/PV.9143 (30 September 2022) 4).

2 United States Mission to the United Nations, ‘Remarks by Ambassador Linda Thomas-Greenfield on the Future of the United Nations’ (8 September 2022) https://usun.usmission.gov/remarks-by-ambassador-linda-thomas-greenfield-on-the-future-of-the-united-nations/.

3 Accountability, Coherence and Transparency (ACT) Group, Submission to the United Nations, ‘Code of Conduct regarding Security Council action against genocide, crimes against humanity or war crimes’ (23 October 2015) UNGA/UNSC ‘Letter dated 14 December 2015 from the Permanent Representative of Liechtenstein to the United Nations addressed to the Secretary-General‘ Annex I, UN Doc A/70/621-S/2015/978 (14 December 2015).

4 ‘Political statement on the suspension of the veto in case of mass atrocities, presented by France and Mexico, open to signature to the members of the United Nations’, UNGA (15 September 2015) www.globalr2p.org/resources/political-declaration-on-suspension-of-veto-powers-in-cases-of-mass-atrocities/.

5 Thomas-Greenfield (n 2). The US ambassador’s statement does not specifically relate to mass atrocitities but is more generic. See generally on restraints on the veto Jennifer Trahan, Existing Limits to Security Council Veto Power in the Face of Atrocity Crimes (Cambridge University Press, 2020).

6 ‘Standing mandate for a General Assembly debate when a veto is cast in the Security Council’, UNGA Res 76/262, UN Doc A/RES/76/262 (26 April 2022) (adopted by consensus).

7 See on both procedures Anne Peters, ‘The War in Ukraine and the Curtailment of the Veto in the Security Council’ (2023) 4 Revue de droit européen 87–93.

8 UNGA Verbatim Record, UN Doc A/76/PV.79 (9 June 2023) 21.

9 Ibid (emphasis added).

10 UNSC Verbatim Record, UN Doc S/PV.7740 (19 July 2016) 4.

11 Charter of the United Nations (1945) 1 UNTS XVI (UN Charter) Article 27(3) (‘ … provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting’).

12 The practice is well documented in Security Council Report, ‘In Hindsight: Obligatory Abstentions’, Security Council Report Monthly Forecast (31 March 2014) www.securitycouncilreport.org/monthly-forecast/2014-04/in_hindsight_obligatory_abstentions.php.

13 UNSC Draft Res, UN Doc S/2014/189 (15 March 2015) para 2.

14 UNSC Verbatim Record, UN Doc S/PV.7138 (15 March 2014) 3.

15 John Chappell, ‘Must Russia abstain on Security Council votes regarding the Ukraine crisis?’, Lawfare (11 February 2022) www.lawfaremedia.org/article/must-russia-abstain-security-council-votes-regarding-ukraine-crisis.

16 Security Council Report (n 12).

17 Enrico Milano, ‘Russia’s Veto in the Security Council: Whither the Duty to Abstain under Art. 27(3) of the UN Charter?’ (2015) 75 Heidelberg Journal of International Law 215, 224.

18 Ibid, 231.

19 Paul Guggenheim, Traité de droit international public Tome II (Librairie de l’Université, 1954) 236; Georg Dahm, Völkerrecht, Vol. II (Kohlhammer, 1961) 227–8.

20 See for a nuanced assessment Liang Yuen-Li, ‘The Settlement of Disputes in the Security Council: The Yalta Voting Formula’ (1947) 24 British Yearbook of International Law 330, 352–3. See against an extensive reading of the term ‘dispute’ in Article 27(3) Andreas Zimmermann, ‘Art. 27’ in Bruno Simma, Daniel-Erasmus Khan, Georg Nolte, and Andreas Paulus (eds), The Charter of the United Nations: A Commentary (Oxford University Press, 4th edn 2024) especially paras 228–33. Zimmermann insists on a structural distinction between ‘dispute’ and ‘situation’ which runs through the Charter and which should not be blurred. According to Zimmermann, the wording of the provision is clear (limited to ‘disputes’), the drafting history is ambiguous, and the extension of a duty to abstain also to ‘situations’ would not make sense, because there are no ‘parties to a situation’ (ibid, para 230).

21 UNSC Draft Res, UN Doc S/2014/189 (15 March 2014) para 2 (also mentioned in n 1).

22 UNGA Verbatim Record, UN Doc A/ES-11/PV.15 (14 November 2022) 14 (emphasis added).

23 See for a detailed survey of the drafting history Sidney Bailey, ‘New Light on Abstentions in the UN Security Council’ (1974) 50 International Affairs 554, 562–4. Bailey documents that it is plausible (but controversial) that the omission of the word ‘situation’ in Article 27(3) was inadvertent and a drafting error (ibid). Against the broad reading, based on his reading of the travaux préparatoires, see Hans Kelsen, The Law of the United Nations, A Critical Analysis of Its Fundamental Problems (Stevens & Sons Limited, 1950) 261–2, footnote 5.

24 See ‘Statement at San Francisco by the delegations of the four Sponsoring Governments (China, the UK, the USA, and the USSR) on ‘The Yalta Formula’ on Voting in the Security Council’ (8 June 1945) 1945 UNCIO XI 710–4.

25 Ibid, Sec. I: ‘6. In appraising the significance of the vote required to take such decisions or actions, it is useful to make comparison with the requirements of the League Covenant with reference to decisions of the League Council. Substantive decisions of the League of Nations Council could be taken only by the unanimous vote of all its members, whether permanent or not, with the exception of parties to a dispute under Article XV of the League Covenant. Under Article XI, under which most of the disputes brought before the League were dealt with and decisions to make investigations taken, the unanimity rule was invariably interpreted to include even the votes of the parties to a dispute’ (emphasis added).

26 Cf the wording of the UNSC Draft Res, UN Doc S/2014/189 (15 March 2014) para 2 (on the occupation of Crimea by Russia).

27 Cf for the different constellation of mass atrocities triggering the responsibility to protect: International Commission on State Sovereignty and Intervention (ICISS), ‘Responsibility to Protect, Report of the International Commission on State Sovereignty and Intervention (ICISS)’ (December 2001) para 6.20 (on ‘capricious use of the veto’); Anne Peters, ‘The Security Council’s Responsibility to Protect’ (2011) 8 International Organizations Law Review 1, 27–30.

28 UNGA Verbatim Record, UN Doc A/76/PV.96 (21 July 2022) 6 (emphasis added). The draft resolution is UNSC Draft Res, UN Doc S/2022/538 (8 July 2022). The Russian veto of 8 July 2022 is documented in UNSC Verbatim Record, UN Doc S/PV.9087 (8 July 2022).

29 UNSC Draft Res, UN Doc S/2022/431 (26 May 2022).

30 UNGA Verbatim Record, UN Doc A/76/PV.78 (8 July 2022) 10.

31 Ibid.

32 Ibid (emphasis added).

33 UNGA Verbatim Record, UN Doc A/76/PV.81 (10 June 2022) 12 (emphasis added).

34 UNGA Verbatim Record, UN Doc A/ES-11/PV.15 (14 November 2022) 2 (emphasis added). See also the ‘Statement of the Foreign Ministry of Ukraine on the illegitimacy of the Russian Federation’s presence in the UN Security Council and in the United Nations as a Whole’ (26 December 2022) https://mfa.gov.ua/en/news/zayava-mzs-ukrayini-shchodo-nelegitimnosti-perebuvannya-rosijskoyi-federaciyi-v-radi-bezpeki-oon-ta-organizaciyi-obyednanih-nacij-u-cilomu (listing examples of Russian ‘abuse of the veto power’).

35 See in detail, and with references to the case law, Guillaume Futhazar and Anne Peters, ‘Good Faith’ in Jorge E Viñuales (ed), The UN Friendly Relations Declaration at 50: An Assessment of the Fundamental Principles of International Law (Cambridge University Press, 2020) 189–228, 200–3. See on abuse of rights as a general principle and as part of customary law, and as ‘an element of the good faith requirement’, with numerous references to the older case law, Yuval Shany, Regulating Jurisdictonal Relations between National and International Courts (Oxford University Press, 2007) 191–2.

36 United States ─ Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body [1998] WTO Appellate Body, AB-1998-4 WT/DS 58/AB/R, para 158 (citing Bin Cheng, internal footnote omitted). See more recently on the abuse of process Alleged Violations of the 1955 Treaty of Amity, Economic Relations and Consular Rights (Islamic Republic of Iran v United States of America) (preliminary objections) [2021] ICJ Rep, General List No. 175, para 95 (here, the ICJ applied the principle, but denied an abuse in the specific case).

37 Iraq v Turkey [2023] ICC, Case No. 20273/AGF/ZF/AYZ/ELU (final award) para 379.

38 Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter) (advisory opinion) [1948] ICJ Rep 57, dissenting opinion of Judges Basdevant, Winiarski, Sir Arnold McNair, and Read, at [1948] ICJ Rep 82, para 21.

39 Ibid (majority) 63 (emphasis added).

40 Ibid (dissent) 92, para 21 (emphasis added).

41 Voting Procedure on Questions relating to Reports and Petitions Concerning the Territory of South West Africa (advisory opinion) [1955] ICJ Rep 57, separate opinion of Judge Hersch Lauterpacht, at [1955] ICJ Rep 90, 120: ‘Both principle and practice would thus appear to suggest that the discretion which, in the sphere of the administration of Trust Territories or territories assimilated thereto is vested in the Members of the United Nations in respect of the Resolutions of the General Assembly, is not a discretion tantamount to unrestricted freedom of action. It is a discretion to be exercised in good faith. Undoubtedly, the degree of application of good faith in the exercise of full discretion does not lend itself to rigid legal appreciation. This fact does not destroy altogether the legal relevance of the discretion thus to be exercised.’

42 Alexandre Tavadian, United Nations Law, Politics and Practice (Irwin Law Inc., 2021) 112.

43 Jennifer Trahan, ‘Legal Issues Surrounding Veto Use and Aggression’ (2023) 55 Case Western Reserve Journal of International Law 93, 129, 131. But see critically Zimmermann (n 20) paras 252–7.

44 Devika Hovell, ‘On Trust: The UN Security Council as Fiduciary’ (2021) 62 William and Mary Law Review 1229.

45 UN Human Rights Committee, ‘General comment No. 36 – Article 6: right to life’ (3 September 2019), UN Doc CCPR/C/GC/36, para 70. See for a critical assessment Eliav Lieblich, ‘The Humanization of Jus ad Bellum: Prospects and Perils’ (2021) 32 European Journal of International Law 579.

46 ILC, ‘Draft conclusions on identification and legal consequences of peremptory norms of general international law (jus cogens)’, UN Doc A/CN.4/L.967 (11 May 2022) draft conclusion 23 lit a).

47 Ibid, draft conclusion 16. See also Kadi I [2005] ECR II-03649, EU Court of First Instance, Case T-315/01, paras 226, 230; Nada v Seco [2007] Swiss Federal Supreme Court (Bundesgericht), BGE 133 II 450, para 7; A v Seco [2008], Swiss Federal Supreme Court (Bundesgericht), Case 1A.48/2007, para 5.2; Al-Dulimi and Montana Management Inc. v Switzerland [2013] ECtHR, App No 5809/08, para 136; Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia (Serbia and Montenegro)) (provisional measures) [1993] ICJ Rep 3, separate opinion Judge Lauterpacht, para 100; Mohammed Jabar Ahmed and others v Her Majesty’s Treasury and Jani el Sayed Sabaei Youssef v Her Majesty’s Treasury [2010] UKSC 2, para 151 (Lord Phillips).

48 ILC (n 46) draft conclusion 2.

49 Ibid, draft conclusion 3.

50 Trahan (n 43) 140.

51 Council of Europe, Parliamentary Assembly, Resolution 2436, ‘The Russian Federation’s aggression against Ukraine: ensuring accountability for serious violations of international humanitarian law and other international crimes’ (28 April 2022) para 12.5.2. See also Trahan (n 43) 142.

52 ICISS (n 27) para 6.25.

53 Ibid.