In Hindsight: Ukraine and the Tools of the UN
As Russia moved from massing troops on the border of eastern Ukraine to attacking Kyiv and other cities by land, sea and air over the course of 29 days, the Security Council remained highly focused on the situation in Ukraine. It convened for seven public meetings, including on the humanitarian situation. It voted on an Albanian-US draft condemning Russia’s military operation on 25 February but failed to adopt it due to a Russian veto. And on 27 February, it adopted a resolution referring the situation to the General Assembly, acknowledging that the lack of unanimity among the Council’s permanent members over the situation in Ukraine had prevented the Security Council from exercising its primary responsibility for the maintenance of international peace and security. (For more information on the meetings, see our 31 January, 16 February, 22 February, 25 February and 27 February What’s in Blue stories.)
The UN Charter has taken centre stage in the Council’s recent deliberations on Ukraine. Council members have couched their interventions in the language of the Charter, particularly Article 2, which states that international disputes should be settled in a peaceful way and that all members shall refrain “in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations”. Before Russia invaded Ukraine, members focused their statements in the Chamber on the need to de-escalate and pursue dialogue and diplomacy, staying largely within Chapter VI tools for the pacific settlement of disputes.
Some members suggested that the buildup of troops on Ukraine’s border could be seen as a threat to international peace and security within the context of Article 39 of the Charter, which allows the Security Council to determine the existence of any threat to the peace. Although Article 39 falls under Chapter VII (the coercive instruments in the Council’s toolkit), these members couched their remarks in the context of prevention consistent with Article 33 of the Charter, which calls on parties to a dispute to seek a solution through negotiations and other peaceful means. However, no specific suggestions were made for direct Council involvement in resolving the situation through peaceful means.
As it became clear that Russia was about to deploy troops to the two breakaway regions in eastern Ukraine, members began to characterise Russia’s actions as a clear violation of the fundamental principles of the UN Charter. At the Council’s 21 February meeting, held immediately after Russian President Vladimir Putin signed a decree recognising the independence of the so-called Donetsk and Luhansk People’s Republics, the US said that an attack on Ukraine is “an attack on the UN, an attack on every sovereign member state and on the UN Charter”. Other members such as Kenya referred to the growing trend of powerful states violating international law with little regard, stating that “multilateralism lies on its deathbed tonight”.
In a 22 February statement, the Secretary-General declared that “the decision of the Russian Federation to recognize the so-called “independence” of certain areas of Donetsk and Luhansk regions is a violation of the territorial integrity and sovereignty of Ukraine”. He went on to stress that the principles of the UN Charter were not an “a la carte menu” that could be applied selectively. As the Council met on 23 February and the Secretary-General appealed to Putin to stop his troops from attacking Ukraine, Russia announced its “special military operation” and began its attack on Kyiv and other Ukrainian cities.
As members became aware that an attack had been launched, the tone of their interventions changed. The UK described the attack as “unprovoked” and “unjustified”, while Ireland said that “the path for diplomacy” was now closed. In notifying the Council of Russia’s latest actions, the Russian ambassador cited Article 51 of the UN Charter, which provides for “the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations”. Russia has cited defence of the two breakaway republics and self-defence in the light of threats against itself as grounds for applying Article 51. However, legal experts have doubts about the legal justifications for Russia’s attack on Ukraine based on Article 51.
In response to the Russian attack, Albania and the US produced a draft resolution with an explicit Chapter VII reference as well as language associated with Chapter VII. This draft, which was put in blue, condemned Russia’s aggression against Ukraine and its decision to recognise the independence of the so-called Donetsk and Luhansk People’s Republics. It seems that in response to China’s preference for a Chapter VI resolution, the draft resolution was revised in an apparent effort to convince China to abstain, rather than cast a veto with Russia. The determination that the situation in Ukraine constituted a clear breach of international peace and security and that Russia had committed acts of aggression, as well as the reference to the Council acting under Chapter VII, was removed.
In addition, while retaining language from the UN Charter, the revised draft softened the Council’s response. It “deplored” rather than “condemned” Russia’s “aggression against Ukraine in violation of Article 2 (4) of the UN Charter” and its recognition “of certain areas of Donetsk and Luhansk regions of Ukraine as a violation of the territorial integrity and sovereignty of Ukraine and inconsistent with the principles of the Charter of the United Nations.” It seems that these changes succeeded in convincing China to abstain rather than veto the resolution. It may also have persuaded at least one other member to abstain, ultimately leaving Russia as the only member voting against the resolution. While the original Albanian-US draft did not contain any enforcement measures, a Chapter VII resolution is often the gateway towards adopting measures such as sanctions or the use of force. Eleven members voted for the text, while China, India and the United Arab Emirates (UAE) abstained.
During the explanation of vote, Norway said that in the “spirit of the Charter, Russia should abstain from voting”. This was an oblique reference to Article 27(3), which states that on decisions under Chapter VI, and under paragraph 3 of Article 52, “a party to the dispute shall abstain from voting”. Over the years, there have been at least 10 cases of “voluntary abstention” where a country has chosen to abstain or not to participate in a vote because of its involvement in a dispute. But this provision of the Charter, which in practice appears to be voluntary rather than obligatory, has not been used in 62 years. The last case of a country recusing itself from a vote, in keeping with Article 27 (3), was in 1960. With what appeared to be a Chapter VI resolution on the table, it seems members could have raised the issue of Russia’s participation in the vote, invoking this Charter article. But there appears to be little appetite, particularly among the permanent members, to go down this route, possibly for both political and procedural reasons. This current matter is not dissimilar to the Russian veto on a 15 March 2014 draft resolution that declared the referendum in Crimea invalid and urged a “peaceful resolution of this dispute”. Article 27(3) was not raised in the Council; however, in a General Assembly meeting on 27 March 2014, the representative of Liechtenstein argued that Russia should have abstained on that vote under Article 27 (3), saying that “It is important that the question finds the attention of the wider membership” (A/68/PV.80).
While all of the recent meetings on Ukraine have been open, Russia had originally suggested that the 21 February meeting be a private meeting. The meetings have been held under three different agenda items: “Threats to Peace and Security” (31 January); “Letter dated 28 February 2014 from the Permanent Representative of Ukraine to the United Nations addressed to the President of the Security Council (S/2014/136)” (21, 23, 25 27 and 28 February) and “Letter dated 13 April 2014 from the Permanent Representative of the Russian Federation to the United Nations addressed to the President of the Security Council (S/2014/264) (17 February). All three are existing agenda items. The latter two agenda items have been regularly used since 2014, when meetings were called for by Ukraine and Russia following Russia’s annexation of Crimea. In recent years, the agenda item “Threats to international peace and security” has been used largely in the context of counter-terrorism.
Russia had been opposed to the 31 January meeting, apparently on the grounds that it had not threatened to invade Ukraine and to the use of “megaphone diplomacy”, and requested a procedural vote on the proposal to hold the meeting. The agenda was adopted with ten votes in favour, two against (China and Russia) and three abstentions (Gabon, India and Kenya), allowing the meeting to go ahead. (Votes on an agenda of the Council are considered procedural matters; based on Article 27 (2) of the UN Charter, such a motion requires at least nine affirmative votes to pass, and the veto does not apply.)
Rule 37 of the Council’s provisional rules of procedure featured prominently over the course of these meetings. Rule 37 provides for the participation of member states when the Security Council considers that their interests are especially affected. The 31 January meeting under Norway’s presidency saw participation from Belarus, Lithuania, Poland, and Ukraine. During the meetings under Russia’s presidency (that is, in February), only Germany and Ukraine participated under Rule 37, although it seems Latvia and Poland wrote to Russia, as the Council president, asking to be allowed to participate. It appears that in these instances, Council members chose not to challenge the President’s decision not to allow the participation of these members.
Ukraine raised rule 20 of the provisional rules of procedure in two of the meetings. This refers to a situation where, if the President of the Council is directly connected to a question that is being addressed, he should not preside and that the presidential chair should move to the member in the next alphabetical order. Ukraine also raised Article 6 of the UN Charter, which states that a member of the UN which has “persistently violated the principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council”.
Council members of varying political views can be expected to continue to cite the UN Charter as the basis for their actions as they grapple with the rapidly changing crisis in Ukraine. The UN Charter remains the cornerstone for Council members at a time when their primary responsibility for the maintenance of international peace and security is especially crucial.
