A Broken UN Security Council is Changing International Law: Part 1
April 29, 2022 by Digital Editor
By Justin Malzac
Nothing reveals the broken condition of the international security regime better than Russia’s military adventurism in Ukraine. At the very time the Russian delegate was leading the UN Security Council in talks to deescalate the situation, Putin launched his egregious and unlawful invasion of a UN member state. But, of course, Russia had been in clear violation of the UN Charter long before there were rockets in the air. We must not forget that even threats against the “territorial integrity or political independence” of another state violate Article 2(4) of the Charter. The Russian government did not simply recognize separatist regions of Ukraine as independent, it launched a full war of aggression.
This first of two parts will examine how the Security Council is currently failing in respect to the original intent of the drafters of the UN Charter.
The Original Purpose of the Security Council
The United Nations was created in the aftermath of World War II, possibly the worst man-made humanitarian disaster until that time in history. A completely new foundation for international peace was necessary due to the failure of previous institutions—such as the League of Nations—and the lack of international law protections for civilians. The latter would not come until the Geneva Conventions of 1949, specifically Convention IV. The United Nations was founded to protect “succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind.” The mechanism established to maintain global peace and security was the Security Council.
Last year, in a series of posts on Just Security and an interview on the JIB/JAB Podcast, Professor Adil Haque of Rutgers Law School presented his research into the drafting history of the UN Charter, focusing on the creation of the Security Council. Among other things, his research showed the Council was intended to be the only global institution authorized to use force, with the exception of very limited cases of self-defense.
Article 2(4) of the UN Charter prohibits all member states from using force. Article 51 allows states to respond to “armed attacks” (or armed aggression in the French text), but only “until the Security Council has taken measures necessary to maintain international peace and security.” As Professor Haque points out, Article 51 is not an exception to Article 2(4). Indeed, there is only one exception to Article 2(4), and that is the Security Council itself. Article 51 is an exception to an exception. It fills the security gap contained in Chapter VII, allowing self-defense in that brief space before the Security Council has a chance to fulfill its mandate and restore peace. It was believed by the drafters that the Council would eventually intervene in any breach of the peace. Self-defense would not be an unlimited and enduring right.
There was relative unanimity among delegates that Article 51 specifically related to the Security Council, explained by its presence in Chapter VII and why attempts to make self-defense a separate and distinct section of the Charter were either ignored or failed. Professor Haque asserts that “states simply did not discuss Article 51 in relation to the prohibition of force.” One U.S. delegate stated that the issue “relates to action in the event of the absence or failure of enforcement [by the Council]. … the right of self-defense must be reserved to meet such a situation.”
Moreover, the true purpose of the Council as the UN’s enforcement mechanism can be gleaned from the text of the Charter itself. Articles 43 and 44 require the Council to have military forces readily available to respond to breaches of the peace. Article 24 shows the intent that the Council will take “prompt and effective action” to resolve global crises. None of these ideals have been fully realized, and they become more irrelevant each passing day.
A Broken Institution
The conflict in Ukraine has brought a level of destruction and mayhem not seen (or perhaps simply not recognized) by the global public in decades. The first five weeks of armed conflict produced more than four million refugees. Russian attacks on Ukrainian urban areas have been notoriously (and unlawfully) indiscriminate. The conflict began with a wrongful act of aggression by Russia, in blatant violation of the UN Charter and international law. However, the institution that was created to deal with just this sort of situation was completely impotent to respond. The fundamental flaw in the structure of the Council is, of course, the veto power. Russia has already used its permanent veto to prevent the Council from interfering with its unlawful actions in Ukraine. As currently constructed, the Council will be unable to do anything to curtail the tragedy unfolding in Eastern Europe.
Faced with a crippled global security infrastructure, states have been addressing the Ukraine situation by going around the Council entirely—acting unilaterally or utilizing other institutions. Many states have enacted unilateral economic sanctions against Russia, as has the European Union. There has also been movement to amend the Rome Statue to allow the UN General Assembly to refer cases of aggression to the ICC when normal jurisdiction does not apply to the offender. Currently, only the Security Council may do so. Pursuing another angle, Ukraine has taken its case to the ICJ, with some unique arguments relating to the Genocide Convention that resulted in a provisional order from the court directing Russia to cease its military operations. Unfortunately, the high hopes that this order would be enforced around Russia’s permanent seat on the Security Council have not yet materialized.
The Ukraine Conflict is just the latest example to reveal the Council’s handicaps. As the U.S. military mission in Afghanistan ended last August, the Council issued a resolution that called on the Taliban to facilitate safe passage for those wishing to leave and imploring them to uphold human rights. However, the text was watered down to appease veto-wielding members Russia and China. The Taliban have since been accused of summarily executing former Afghan military members and have increased restrictions on women.
In a world of cold war and strategic competition, most every country is aligned with one major power or another, and therefore, always has a veto-wielding big brother to come to their aid. This is as true for Syria and Russia as it is for Israel and the United States. Russia and China in particular wield their veto to protect blatantly unlawful conduct. For example, the UN’s own reports revealed China repeatedly violated sanctions against North Korea, and both Russia and China have blocked reports of sanction violations. How can there be any meaningful progress on these issues when two veto powers are complicit in the very behavior the Council is supposed to prevent?
The belief that the UN Security Council has failed to live up to its ambitious mandate is about as old as the institution itself. Ukrainian President Volodymyr Zelensky has suggested that if the Council is unable to address the Ukraine crisis, it might as well dissolve itself. Even the President of the UN General Assembly called the Council a failure in an official forum, while French President Emmanuel Macron suggested it “no longer produces useful solutions.”
The multiple failures of the Council—such as delays and weakness in preventing genocide in Sudan—are known and too numerous to note here. However, the amalgamated impact of those failures on the world, and particularly on the evolution of international law, is often missed. Few, if any, academics have addressed the correlation between the Council’s inaction and the evolution of international law today. In fact, the failure of the Council to properly fulfill its responsibility to maintain global security has led states to take security upon themselves. This impact can be seen in myriad legal debates, including the scope of self-defense and the doctrine of humanitarian intervention.
It is telling that the United States, one of the earliest proponents of the Council and limitations on self-defense, is now one of the vanguards for a broader definition and more options to use force. Ultimately, states create international law, and they will change it when it no longer suits their needs. Currently, states are filling in the security gap by relying on interpretations of customary law or reinterpretations of the UN Charter that are not in accordance with the original intent of the Charter, in order to justify uses of force and advocate for expanded intervention rights. Interpretation and custom have become a poultice over a gaping wound.
The second part of this article will examine how the failure of the Security Council to fulfill the responsibilities the Charter drafters envisioned has caused states to abandon their original interpretations.
Read part 2 of this article, focused on how international law has been affected by Council weakness.
Justin Malzac is the Senior Paralegal at a DOD joint command and has worked in the field of National Security Law for a decade. His work has been published by the Harvard National Security Journal, the American University National Security Law Brief, and several other publications. The views expressed in this article are those of the author and do not necessarily reflect the official policy or position of the Department of Defense or the United States Government. The author would like to graciously thank Lieutenant Colonel Emily Roman and Major Rafiel Warfield for their feedback on this piece.