The United Nations (In)Security Council: Time for Reform in a Post-Ukraine War World?

Introduction

Already in 1949, the International Court of Justice (ICJ) recognized that intervention with affairs of another state as a manifestation of force cannot find a place in international law. The particular danger raised by the ICJ was that such a state-of-the-art would be reserved to the most powerful states and prevent the administration of international justice itself.^[1]

Some 73 years later, the war in Ukraine has left the world paralyzed, witnessing the rules governing the use of force in the United Nations system fail and proving the ICJ right. One of the purposes of the UN Charter is to maintain international peace and security and suppress acts of aggression or other breaches of the peace.^[2]

In thinking about the post-Ukraine war world, it is logical to wonder how such an elaborate system, built exactly for the purpose of acting in the face of a war to restore peace, has failed. If the UNSC system is not reformed, future armed conflicts involving directly or indirectly any permanent member will almost invariably not find a solution within the United Nations.

The United Nations Security Council and Its Response to the Ukraine Crisis: an (In)Security Council?

The Role and Importance of the United Nations Security Council

In the United Nations system, the Security Council (UNSC) is the organ to which UN members “confer … primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.”^[3] The UN Security Council is currently composed of 15 members, five of which are permanent^[4] and have a veto power for non-procedural matters.^[5]

In the exercise of its functions, the UNSC can take measures not involving the use of armed force,^[6] and measures involving the use of force,^[7] which are binding on all UN member states.^[8] In contrast, under the UN Charter, states individually are to refrain from the threat or use of force against the territorial integrity or political independence of another state.^[9]

The system set up by the United Nations, therefore, removes the power of individual use of force from states, with exceptions such as self-defense, and places the monopoly of the use of force in the UNSC. For this rule to remain central to the system, the exceptions such as self-defense are indeed restrictive. For instance, lawful self-defense requires an armed attack against a UN member, and can only be employed until the UNSC takes action.^[10] Furthermore, the exception of self-defense is subjected to conditions of proportionality and necessity. Therefore, self-defense would warrant only measures which are proportional to the armed attack and necessary to respond to it.^[11]

In the current conflict in Ukraine, there have been claims of self-defense by Russia. These are by no means novel to international law. The United States claimed to be involved in certain matters pertaining to the use of force in Nicaragua in the late 1970s and early 1980s. The International Court of Justice, however, ruled that the use of force could not be the appropriate method to monitor or ensure respect for human rights. The Court went further to assert that the protection of human rights, a strictly humanitarian objective, cannot be compatible with the mining of ports, the destruction of oil installations, or with the training, arming, and equipping of the armed groups.^[12] With these arguments in mind, the ICJ rejected the self-defense argument posed by the U.S. in the case.^[13]

The UNSC (Lack of) Response to the Ukrainian Crisis

Upon Russian troops entering Ukraine, the UNSC has been unable to tackle an appropriate response, because of the veto power exercised by Russia. A draft resolution was submitted by the United States and Albania, gathering the support of 11 of the UNSC members, together with the abstention of China, India, and the UAE. Russia, however, vetoed this draft from passing into resolution.^[14] Council representatives for the Russian Federation argued in favor of the veto that the resolution ran “counter to the interests of the Ukrainian people.”^[15] The veto power held by permanent members and exercised by Russia in this case is contrasted with the 141 member states that voted in favor of a resolution which reaffirms Ukrainian sovereignty, independence, and territorial integrity in the context of the UN General Assembly.^[16]

The unequal power of different states within the UN system has shown in the Ukrainian conflict its worst side. A large number of states, which in the UN system have less power, cannot overcome the will of one powerful state. In turn, this powerful state can both avoid liability and obstruct a response by the main system tasked with maintaining peace and security. The need to begin serious talks on a reform of the UN Charter has come.

Towards a Reform of the United Nations Charter

A reform of the United Nations Charter requires a two-step process. Initially, the UN General Assembly needs to adopt the reform by at least two-thirds of the members. Then, the modification must be ratified domestically by at least two-thirds of the UN members, including all five permanent members of the UNSC.^[17] The UNSC was reformed only once in history, to provide for additional non-permanent member seats in 1965.

While mindful of the difficulties posed by political will and the complexity of reform, this work analyzes different alternatives for reform of the UN Charter regarding specifically manners in which to avoid the blocking of the UNSC. Without prejudice of other reforms, the proposals under study are presented from greater to lesser degree of reform.

The Removal of Permanent UNSC Membership

The most radical change that can be thought of in the context of the UNSC would be the removal of permanent seats. This would result in a “democratization” of the organ, where all states are on equal footing: none having a veto power, none having permanent presence.

However, UNSC permanent membership was the result of the victory of the Allies in World War II. The life and property loss of the winning nations that was necessary for the establishment of the system may constitute a significant obstacle towards a radical reform, especially considering that the nations currently holding permanent seats (the U.S., China, Russia, the U.K., and France) continue to be leaders in the world economic and political order. While a long-term reform would ideally place all nations on equal footing, short-and-mid-term reforms should perhaps aim at some mid-way changes before achieving full equality among states in the UNSC.

Modification of UNSC Permanent Membership: No Veto Power

The following degree of reform would suggest that all five permanent members of the UNSC maintain their permanent seats but give away their veto power. This way, the WWII efforts and leading international roles allow permanent members to maintain their seats and vote. However, resolutions will be taken in accordance with the majorities indicated in the Charter, that is, the affirmative votes of nine members, with no possible veto power. In practice, this could result in negative votes of one or more permanent members without this barring a resolution, with nine or more affirmative votes, from being passed.

A system of this sort would have allowed the UNSC to appropriately respond to the Ukraine crisis. While the Russian Federation would have been able to vote as a permanent member, its negative vote would not have prevented the resolution (which had 11 affirmative votes and three abstentions) from passing, thereby permitting the UNSC to act promptly.

The problem that a reform of this sort would face is, like all others, the lack of political will. The system as it exists today allows the five permanent members to block the UNSC from taking actions in situations directly or indirectly affecting their interests.

Introduction of a UNSC Conflict-of-Interest Rule

The final level of reform of the UNSC would feature the introduction of a “conflict-of-interest” rule. While maintaining permanent seats and veto powers, the conflict-of-interest rule would exclude the possibility for a state to veto a draft resolution which concerns itself directly or indirectly. The specifics of defining what concerns directly or indirectly a state will necessarily determine the effectiveness of this reform. While some direct concerns may be easy to visualize, as is the case of a state’s army entering the territory of another state, other involvements such as financing or providing military support may be more diluted.

If a conflict-of-interest rule was adopted, the system would maintain rules on permanency and veto but would exclude from the exercise of the veto power the state or states that are directly or indirectly concerned in the draft resolution. In the context of the Ukraine crisis, this system would have also allowed the UNSC to deliver a proper and timely response, according to the vote outlined above, barring Russia’s veto. While the Russian Federation would have had its seat and veto power, the situation directly concerned it, and therefore the conflict-of-interest rule would have prevented it from exercising the veto power.

It is also relevant to note that this proposal may also consider a no-veto agreement rule, preventing political alliances from agreeing to veto a resolution at the request of the conflicted State. Although extremely challenging in practice, it may be relevant to consider that if political alliances create an escape rope from the conflict-of-interest rule, the entire system may again be paralyzed.

Currently, there is a rule related to conflict-of-interest in Rule 20 of the Provisional Rules of Procedure of the UNSC, which is not part of the Charter. This rule merely suggests the Presidency of the UNSC “not preside over the Council during the consideration of a particular question with which the member he represents is directly connected.”^[18] However, the veto rights are regulated in the Charter itself, and can therefore not be suppressed by rules of procedure. The Charter itself additionally only provides for an obligation to abstain from voting in Article 27(3) when a State is party to a local dispute for which the UNSC may encourage pacific settlement through regional arrangements or agencies.^[19] This rule is very specific and only applicable to domestic disputes.

Proposed Reforms to the UNSC

While the proposals above seek to modify, to a greater or a lesser degree, the genesis of the system, the actual proposed reforms have not gone in this direction. Germany, India, Brazil, and Japan proposed in 2005 to enlarge the UNSC with six additional permanent members and four non-permanent.^[20] To date, Germany is one of the states which continues to push for a reform of expansion. German Ambassador before the United Nations Christoph Heusgen voiced in an interview in 2021 that Germany, being the second biggest donor to the UN, should be part of an expansion of the UNSC to 25-27 members. In this regard, Mr. Heusgen explicitly stated that China and Russia “are blocking all our progress towards real negotiations.”^[21]

The UNSC has proved only to be effective when acting upon situations that do not directly concern permanent members. Hence, this type of reform does not address the genesis of the problem and, if anything, it has the potential to enlarge it: more permanent members with veto power mean, statistically, more chances of situations involving at least one permanent member directly and thereby potentially blocking the UNSC. While more States seem to want the “privileges” of permanent membership, they may be overlooking the fact that it is permanent membership and veto powers, in their current status, which is making the UNSC unable to maintain peace and security. The goal established after WWII is far from being achieved, as seen in the current Ukraine conflict.

Conclusion

The time has come to begin reshaping the UN Charter for a post-Ukraine war world. A greater conflict should not be needed for states to agree upon making the Charter more inclusive and equal. States will continue not to have equal de facto power, but should all aim at building a system which can work for the benefit of the international community as a whole in the most complex times.

[1] Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), International Court of Justice, Judgment - Merits, 9 April 1949, 35.

[2] U.N. Charter, 26 June 1945, art. 1(1).

[3] U.N. Charter, 26 June 1945, art. 24(1).

[4] U.N. Charter, 26 June 1945, art. 23(1): The permanent members as in the original text of the UN Charter are: The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America.

[5] U.N. Charter, 26 June 1945, art. 27(2-3).

[6] U.N. Charter, 26 June 1945, art. 41.

[7] U.N. Charter, 26 June 1945, art. 42.

[8] U.N. Charter, 26 June 1945, art. 25.

[9] U.N. Charter, 26 June 1945, art. 2(4).

[10] U.N. Charter, 26 June 1945, art. 51.

[11] Legality of the Threat or Use of Nuclear Weapons, International Court of Justice, Advisory Opinion, 8 July 1996, 41.

[12] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), International Court of Justice, Judgment - Merits, 27 June 1986, 268.

[13] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), International Court of Justice, Judgment - Merits, 27 June 1986, 292.

[14] United Nations Meetings Coverage and Press Releases, “Security Council Fails to Adopt Draft Resolution on Ending Ukraine Crisis, as Russian Federation Wields Veto,” 25 February 2022, https:// press.un.org/en/2022/sc14808.doc.htm.

[15] ““Security Council Fails to Adopt Draft Resolution on Ending Ukraine Crisis, as Russian Federation Wields Veto,” statements of Vassily A. Nebenzia on behalf of the Russian Federation.

[16] United Nations News, “General Assembly resolution demands end to Russian offensive in Ukraine,” 2 March 2022, https://news.un.org/en/story/2022/03/1113152.

[17] U.N. Charter, June 26, 1945, art. 108.

[18] United Nations Security Council Provisional Rules of Procedure (S/96/Rev.7), Rule 20.

[19] United Nations Charter, adopted on June 26, 1945, Article 27(3).

[20] DW staff, “Germany Starts UN Reform Resolution” DW, 2005, https://www.dw.com/en/germanystarts-un-reform-resolution/a-1585795.

[21] Betul Yuruk, Seeking Permanent Seat at UN Security Council, Germany’s UN Envoy Calls for Reform (Americas, 2021), https://www.aa.com.tr/en/americas/seeking-permanent-seat-at-un-securitycouncil-germanys-un-envoy-calls-for-reform/2275581.