Council at War: Russia, Ukraine and the UN Security Council

‘It is the responsibility of this body to stop the war’, Ukraine’s representative told the UN Security Council on Wednesday this week. He was interrupted by the current President of the UN Security Council who clarified ‘this isn’t called a war, this is called a special military operation in the Donbas’. In this moment, the Ukrainean representative was forced squarely to confront the Council’s Janus face. The Security Council President through whom the Ukrainean representative was required to direct his plea was none other than the Russian Ambassador to the United Nations.

What do we do when the world’s Council of war becomes a Council at war?

First, let us introduce a bit more clarity on the role of the UN Security Council. The United Nations may aim at world peace, but it is not a pacifist institution. The Security Council is the world’s only authorized enforcement agent, with power under Articles 39 and 42 of the UN Charter to take measures, including the use of force, to maintain or restore international peace and security. However, there is an important qualification to this power. Perhaps the UN’s primary aim – indeed, the Charter’s opening edict – is to save succeeding generations from world war, ‘which twice in our lifetime has brought untold sorrow to mankind’. As is well-known, the permanent members of the Security Council (Russia, China, the United States, the United Kingdom and France), otherwise known as the P5, each have the capacity to veto any proposed action by the Council. The balance of power installed in the Security Council between these (hitherto) ‘Great Powers’ is a deliberate one. The Security Council framework was not developed to displace power politics, but to institutionalize it. As the New York Times reported at the time of the San Francisco Conference at which the U.N. Charter was drafted, ‘[m]ost countries … reluctantly accepted the idea of a virtual world dictatorship by the great powers.’  Gerry Simpson has described the Council framework as a ‘legalised hegemony’, intended to harness the P5 to a multilateral framework in which they could protect their fundamental interests.

So, what is the position when a member of the P5 (mis)uses its position on the Council and associate veto-power as a shield behind which to pursue aggression? In circumstances where less powerful states would be given an automatic red card, do members of the P5 necessarily get carte blanche? Of course, the real shield on which the Russian Federation is relying is not its veto power, but its nuclear power. As Professor Talmadge has noted, the flip-side of the deterrence value in mutually assured destruction is that it can also make conflict more likely at the lower rungs of the escalation ladder. President Putin is doing nothing to hide this, as was clear from his speech on Russian state TV in which he warned that ‘[a]nyone who tries to interfere with us…must know that Russia’s response will be immediate and will lead you to such consequences as you have never before experience in your history’.

In such circumstances, the Security Council is necessarily (and I would argue appropriately) deadlocked. There is no obligation on Russia to abstain from casting its veto to prevent adoption of resolutions by the Council proposing Chapter VII measures in response to the situation in Ukraine. While Article 27(3) of the Charter imposes an obligation to abstain from voting if it is a party to the dispute, this does not apply to decisions taken under Chapter VII. Interestingly, the practice of obligatory abstention has been rarely used, even in relation to decisions outside Chapter VII. According to Security Council Report, the last Article 27(3) abstention dates back to 23 June 1960 and the most recent reference to the spirit of the provision in a Council meeting dates back to 13 May 2003. As Enrico Milano has noted, even in the 2014 debate over Crimea, ‘none of the states intervening in the debate, even those flatly condemning the ‘abuse’ of Russia’s veto on political grounds raised the issue’ of Russia’s requirement to abstain. The Security Council does not provide the best forum through which to dictate and apply measures against Russia. As Marko Milanovic has noted, the credibility of certain P5 members imposing measures against another remains too deeply undermined by their own misadventures to claim adequate legitimacy.

Yet this is not to say that the UN must effectively launder any P5 action, no matter how egregious or unlawful, through an implicit promise of Council inaction. While the Security Council structure necessarily institutes a balance of power in Council decision-making, the vesting of primary responsibility in the Council was not intended to create a mechanism through which P5 members could simply pursue their own fundamental interests. As provided in Article 24, in carrying out its duties, the Security Council is required to act on behalf of the overall membership. The text of Article 24 reflects that the final decision to vest responsibility in the Council was a trade-off between representation and effectiveness, ‘[i]n order to ensure prompt and effective action by the United Nations’, rather than between representation and Great Power interests. In the course of negotiating the Charter framework, it is clear that responsibility for the maintenance of peace and security shifted from the executive to the plenary organ and back again before the decision was finally made to vest primary responsibility in the Security Council.  The chosen voting formula, including the veto, was explained by a member of the Secretariat at the San Francisco Conference as stemming from the practical necessity of guaranteeing military weight behind Council decision-making, ‘devised to bring the bulk of the military forces automatically behind the Council’s decisions and at the same time to give scope for the operation of checks and balances on the part of the elected representatives of all the United Nations’.

In situations where a P5 member is implicated in a threat to the peace, breach of the peace or act of aggression, a balance of power in addressing the issue must be sought elsewhere. The General Assembly is the obvious candidate. This is of course the option envisaged in the Uniting for Peace resolution enacted in the beginning of, and in response to, the Cold War. It provides that an emergency special session of the General Assembly may be called if requested by the Security Council on the vote of any [nine] members or by a majority of the Members of the United Nations. Under the terms of this resolution, ‘[i]f the Security Council…fails to exercise its primary responsibility for the maintenance of international peace and security…, the General Assembly shall consider the immediately with a view to making appropriate recommendations to Members for collective measures’. This provides the appropriate mechanism through which to subject the Russian Federation’s actions to the full weight of global condemnation. States can consider the full range of measures, including collective sanctions, non-recognition and even establishment of a tribunal to prosecute those responsible for the crime of aggression.

Undoubtedly the coming days, weeks and months will see much mud-slinging at the UN and its machinery for Security Council inaction in the face of Russian aggression. International law and its institutions are accustomed to being defamed at times of political crisis. In the lead-up to the 2003 Iraq war, President George W Bush threatened that Security Council inaction would see the UN ‘fade into history as an ineffective irrelevant debating society’. Yet, hidden in President Bush’s insult, we find a fitting job description. Where global powers are divided, the United Nations must serve as a forum where all states – aggressors and victims alike – can meet to debate and one hopes eventually even negotiate the way to peace. And in the event aggressors do not choose the path of peace, it is up to UN member states collectively to develop measures for condemnation and retribution.