Challenges to a Peaceful Rules-based Order

On February 23, 2023, the eve of the first anniversary of Russia’s invasion of Ukraine, the UN General Assembly adopted its sixth resolution concerning the conflict (UN General Assembly 2023) and called, once again, for an end to the war. At the outset of the session, the Assembly President stated that the world was facing a “new chapter of history” that called for “stark choices about who we are as an international community” and that these would either “set us on a path of solidarity and collective resolve to uphold the tenets of the UN Charter or a path of aggression, war, normalized violations of international law and collapsed global action” (Kőrösi Reference Kőrösi2023). Indeed, this is far from the first time that world events have brought into sharp relief the obsolescence of the power structure that was crystalized at the close of World War II and that has since held us hostage to the interests and whims of its victors. However, it might well be the first time the use of force has the potential to actually transform this enduring status quo. From the perspective of the postwar international legal order, Russia’s invasion of Ukraine is a unique event by which a permanent member of the Security Council is abusing this privileged position by using force to expand its boundaries, bringing with it a global impact on food security, energy, finance, the environment, and nuclear security and safety unknown to the world since 1945. Going far beyond a simple violation of the UN Charter, Russia’s aggression is a bid to return the world to a pre-United Nations era when this kind of conflict was common and accepted (Brunk and Hakimi Reference Brunk and Hakimi2022). In this sense, although I necessarily admit that other wars have stretched the legal norms of the use of force in the absence of Security Council consent, there was always a prima facie legal case we could consider more or less convincing (Johnstone Reference Johnstone2022). Russia’s breach of the very foundations of international law, on the contrary, is so flagrant and its purported justifications so weak that this is not another simple threat to the UN Charter paradigm: it could bring about a paradigmatic shift in which the more or less peaceful rules-based order established after World War II is replaced with one of openly aggressive power politics. In other words, the belief that great power conflict is relegated to the past and no longer a central feature of interstate relations could be superseded by the opposite view currently being put into practice by Russia and upheld by some of its allies – China’s threatening behaviour toward Taiwan being another case in point. In this emerging new world order, war appears once again to be the governing principle of international politics.

Thus, this article arises from the idea that, resistance or not, there is currently a new world order being effectively constructed on the basis of Russia’s brutal invasion of Ukraine and that there is no other option than to find ways of adapting our peacekeeping international institutions to this new reality. Indeed, the different systems of governance of international affairs the world has conceived of have never come into being because they sounded like a good idea, but because certain catastrophes showed that the existing framework had failed to avoid them (Traub Reference Traub2022). This could be one such moment in history that will force the international community to finally address its failures (Manulak Reference Manulak2022). I do not suggest, of course, that we give up on the United Nations nor that we encourage an outright defiance of its norms. The inaction of the Security Council, especially on the basis of a permanent member refusing to condemn its own violation of the Charter, can hardly be representative of a rejection by the international community of the value of international law restrictions on the use of force and the need for a centralized collective security system. On the contrary, what I argue is for the survival of this Organization by offering an appropriate legal interpretation of the UN Charter that will set us on the path toward a more efficient collective type of problem-solving (Pons Rafols Reference Pons2022). The alternative, as the General Assembly President has warned us, is the collapse of global action and, with it, the terrible prospect of the renormalization of war.

Expelling a Permanent Member or Similar Alternatives

The unfortunate paralysis of the UN Security Council could firstly be resolved by removing the permanent member that is blocking any response toward its own aggression from the United Nations. In effect, here lies the main desirability of expelling such a member: it is the most efficient way to avoid its continued abuse of its permanent seat in order to carry out acts that are contrary to the most basic principles of international law, which, quite absurdly in light of its own violations, it has been legally mandated to uphold and apply to the rest of the international community. It is obvious in such a case that UN membership is not acting as the intended constraint on its behavior. Expulsion, on the other hand, could serve not only to allow the Security Council to act but also as an important “non-participation” sanction by which the lawbreaker is denied the benefits of international cooperation. This tactic is a well-known means of intimidation that might pressure the “pariah state” into giving up its abominable ways (Buscemi Reference Buscemi2022). Furthermore, both reactivating the Security Council and marginalizing those who disrespect the most basic principles of peaceful relations can, in turn, help to revive the credibility and relevance of the United Nations.

The Charter of the United Nations provides for expulsion in Art. 6 as follows: “A Member of the United Nations 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.” One way of getting around the ever-present veto issue would be to argue that a Security Council resolution recommending expulsion is procedural in nature and, as such, not subject to the veto pursuant to Art. 27(2). However, this is mostly out of the question because Art. 18(2) of the Charter clearly lists “the expulsion of members” as an “important question,” which can therefore not be considered merely procedural. But another solution does come to mind when faced with a permanent member of the Security Council attempting to block its own expulsion. To begin with, one could argue that the general principle of law that nobody can be a judge in their own case has not been expressly derogated by the Charter in cases of expulsion. Furthermore, I see no reason why the Security Council cannot adopt decisions under Chapter VI concerning a myriad of disputes between the permanent member and the other state/s it has attacked and exclude the former from the vote pursuant to paragraph 3 of Article 27 UN Charter: “in decisions under Chapter VI, […], a party to a dispute shall abstain from voting.” If, at the same time, the President of the Security Council were to determine that the question of expulsion of the permanent member was closely connected with one of those disputes, it would as a consequence also be required to abstain from voting on its own expulsion. This outcome seems more reasonable and less absurd than allowing the permanent member to continue sabotaging the international community’s ability to react to its outrageous behavior, which runs counter to the very purpose of the Charter. In this sense, we might also refer to the particular purposes of inserting an expulsion provision into such a legal text. In effect, the possibility of expulsion not only exists for the purpose of providing a sanction for the serious breach of the treaty in question, but also to protect the Organization against obstruction by a treaty-breaking state (Jenks Reference Jenks1935). Thus, not only does this interpretation offer a way to avoid an absurd result in the application of the law, but it also protects the objectives of the Charter, as neither the general purpose of forbidding the use of force nor the abovementioned purposes of the expulsion clause could be fulfilled if a permanent member could obstruct a decision regarding its own expulsion.

There are other alternatives to the complete expulsion of a permanent member from the United Nations in case the abovementioned option did not prosper, or the costs were too high. One cannot ignore that while expulsion would send a powerful signal that such a fundamental violation of the UN Charter is unacceptable, it would come with increased risk, notably an escalation of tensions and a hindrance to any negotiations toward ending or freezing the war. Thus, when balanced against such risks, the following, less radical options may be preferable. Curiously, Art. 5 of the Charter does not recognize the power to suspend UN membership in the case of violation of its principles, as we have seen it does for the case of expulsion. On the contrary, suspension requires there to have been a previous resolution by the Security Council taking preventive or enforcement action against that member, which seemingly limits this option to cases that fall under Chapter VII. Thus, there seems to be no way to avoid a permanent member’s veto in the case of suspension of membership (Barber Reference Barber2022). However, a similar way of softening the blow would be to approve a Chapter VI decision as explained above but one that accepted that it is not the permanent member state involved in the dispute that is being deprived of membership but only its government that is being excluded from the Organization. In such a case, the moment the government mends its ways or a new government ceases to act unlawfully, the state would again be permitted to return to the United Nations without going through a full process of admission.

Finally, if we must accept the absurd legal result of any intervention by the Security Council being entirely ruled out when a permanent member abuses those very powers it has been entrusted with to preserve peace and security, there remains the possibility of suspending or expelling them from other UN subsidiary organs and specialized organizations that do not require full expulsion from either the United Nations or Security Council authorization. In this sense, the General Assembly has already proven its worth by voting – with 93 nations in favor, 24 against, and 58 abstentions – to suspend Russia from the Human Rights Council on the grounds that it has committed gross and systematic violations of human rights (UN General Assembly 2022). This rare decision has shown that the UN General Assembly can fill the gap left by the impotence of the Security Council and offer a united international response to grave violations of international law. Further action could be taken by the General Assembly in excluding a member persistently violating the UN Charter from its committees, starting with those most relevant to the protection of the international security regime and international law in general, such as the First Committee on disarmament and international security and the Sixth Committee on legal issues. Although it is beyond the scope of this article to study the rules governing expulsion from all the subsidiary and principal organs of the UN system as well as from its sixteen specialized agencies, the general idea is to bypass the permanent member’s ability to block its expulsion from the United Nations by removing it from all of those UN organs and organizations at which is does not have an unwaivable right to sit. After all, it is assumed that the expulsion of a state from the United Nations would result in an automatic expulsion from all of these bodies. Thus, this disaggregated method of expulsion would serve some of the same purpose, that is, to avoid it corrupting the Organization while reviving its legitimacy (although, unfortunately, not of the Security Council), as well as pressuring it into giving up its unlawful actions through marginalization and the removal of the many rights and privileges of membership. At the same time, and despite this case being an example of UN membership blatantly failing to constrain a state’s behavior, it is still worth noting that this “semi” expelled nation would continue to be bound by its obligations under the Charter – whereas if it were to be fully expelled from the UN, this would unfortunately not be the case. Still, we should also recall that the prohibition against the use of force is a jus cogens norm that is fully binding on the entire international community, regardless of the condition of UN member or non-member state.

Tacit Withdrawal of a Member as a Result of Its Own Acts

Exactly the same results (with a similar need for a careful consideration of the risks) stemming from expulsion could be achieved by withdrawal, but, unfortunately, we are dealing with cases in which a direct notification of withdrawal from the United Nations is not likely to be forthcoming. Nonetheless, we might consider certain actions by a member of this Organization to constitute its tacit intention to withdraw. In this context, when the League of Nations expelled the Soviet Union in response to its invasion of Finland in 1939, both the General Assembly and the Council’s resolutions phrased their decision in terms of an automatic end of membership of the USSR resulting from its own acts. According to these documents, by the acts of the Soviets against the Finnish State, they had placed themselves outside the League of Nations by which it followed that the Soviet Union was no longer a member of the League (League of Nations 1939). The use of this formula of merely purporting a statement of fact that the country, by its own acts, had placed itself outside the Organization – and the Organization was thus bound to simply record the event that had already occurred – is more a recognition that the nation had tacitly withdrawn than that it had been effectively expelled. Thus, when one of its members is not only failing to meet its duties by actively hindering the Organization’s performance but is also defying the core principles of UN membership, one might question whether this means it is placing itself outside the United Nations and its Charter. In other words, a permanent member’s continued and deliberate defiance of the fundamental rules and requirements of UN membership might equate to an expression of their intention to no longer apply the Charter and thus its conduct could qualify as notification of withdrawal for the purpose of Art. 65 VCLT. As is known, the UN Charter does not carry an express provision to the effect of withdrawal, but it is generally assumed on the basis of certain declarations adopted at San Francisco that every member of the Organization has the right to leave (Glos Reference Glos1960). Russia’s current decision to no longer fulfil what is considered the highest duty of a UN member, which is to cooperate with the Organization in the interest of international peace and security, could therefore be taken as its sovereign will to withdraw – and the remaining members should react accordingly. Given that there is no procedure for withdrawal set out in the Charter, the general rules of the Vienna Convention should be followed. As Art. 67(1) VCLT requires a notification provided for under Art. 65(1), i.e., a notification of withdrawal, to be made in writing, we cannot expect in this case for a UN state to lose its membership ipso facto as a consequence of a violation of its obligations under the Charter. Rather, such a state could lose membership after said Organization finds that such a violation exists and that the state in question has somehow manifested in writing that it no longer consents to be bound by the treaty’s rules. Returning, again, to the case at hand, the Permanent Representative of the Russian Federation to the United Nations sent the Security Council a formal letter dated February 24, 2022, notifying its clear intention to take military action against Ukraine (UN Security Council 2022). As mentioned, this was followed by a number of resolutions adopted by the General Assembly in direct response to that letter and to the subsequent Russian aggression, condemning them as being in violation of Art. 2(4) of the Charter. Following the logic set out above and given the continued refusal by Russia to comply both with the Charter as well as with said resolutions, these documents could suffice to consider Russia as having activated its withdrawal procedure from the UN. Thus, this second option consists of the remaining UN members reacting to this tacit notification of withdrawal. Of course, I assume other members, allies of the state at fault, would raise objections to this legal interpretation. Nonetheless, this formula could still work as an important expression of the majority of the international community of their outrage and intention to dissociate from the recalcitrant state and serve in this sense to threaten it into giving up its unlawful actions.

A Greater Role for the General Assembly

Ever since it became apparent that the Security Council was unable to fulfil many of its duties in the area of conflict management, states have begun looking to the General Assembly as a natural substitute. In fact, it was as early as 1950 that the General Assembly recognized its competence to step into the Security Council’s shoes when it failed to exercise its functions. In response to the Soviet Union vetoing Security Council action on the Korean War, the General Assembly passed resolution 377(A) V under the title “Uniting for Peace” by which it resolved that

As we can see, the objective of the resolution is to improve the machinery of the United Nations for preserving peace by organizing the possibility of collective action through the medium of the General Assembly in case the Security Council fails to exercise its responsibilities. Nonetheless, this resolution has never been used by the General Assembly to recommend the use of force outside a context of self-defense, making it so far useless when it comes to authorizing military action – self-defense does not actually require any authorization pursuant to Art. 51 Charter (Johnson Reference Johnson2014). The problem with putting “Uniting for Peace” to better use is mainly that certain states consider it violates the provisions and spirit of the Charter by superseding the Security Council and its enforcement system. In essence, it is argued that the resolution abandons the fundamental working principle of the United Nations, which is to function through the unanimity of the permanent members of the Security Council. Under this view, therefore, the resolution implements an unlawful amendment of the Charter. However, the view taken here is that the resolution is not an unlawful amendment but a step in the evolution of the law of the UN, in the sense that evolution is inherent in every new regulation, without necessarily being against existing provisions or the spirit of the law in question (Andrassy Reference Andrassy1956). We might want to heed Sohn’s warning in this sense that ‘the less flexible the constitution, the less likely it is to last’ (Sohn Reference Sohn1964). Furthermore, opposing the resolution as contrary to the Charter implies that it is the Security Council that is exclusively entitled to take enforcement action for the maintenance of peace. However, Art. 24 of the Charter does not give the Security Council the absolute responsibility in this area but “the fact the framers went out of their way to qualify what would otherwise have been an unqualified responsibility and then proceeded to describe it as merely ‘primary’ clearly indicates that a secondary responsibility was contemplated” (Reicher Reference Reicher1981). It is safe to assume that it is the General Assembly that has the secondary responsibility in this regard given how it is “abundantly clear […] that the General Assembly is also to be concerned with international peace and security” (International Court of Justice 1962). Furthermore, Art. 24, paragraph 2, establishes that, in discharging its duties, the Security Council shall act in accordance with the purposes and principles of the United Nations – a phrase that necessarily has in mind Chapter I of the Charter entitled “Purposes and Principles.” Among these, we can find the aims of maintaining international peace and security by effective collective measures to be taken for the prevention and removal of threats to the peace, and for the suppression of acts of aggression. Thus, when the Security Council fails to take decisions on measures that have become necessary, it is not acting in accordance with the purposes of the United Nations (Barber Reference Barber2018). This begs the question of whether it is resolution 377 (V) that goes against the spirit of the Charter or the constant failure of the Security Council to maintain peace and security when the national interests of the permanent members make it unable to act. Given that there is no way the Council can be effective when the breach of peace is perpetrated by one of its permanent members and that the maintenance of international peace and security through collective measures is not only the purview of the Security Council but also a purpose of the United Nations writ large – and thus also a duty of the General Assembly – it is more than incumbent upon this other major UN organ to act on its secondary responsibility. In fact, both of these UN bodies were established to realize the main aim of the Charter, that is, to maintain international peace and security. Thus, if the General Assembly does not fully act upon its 377 (V) resolution when required, it too could be held responsible for its failure to fulfil its services of peace and be found to be contradicting the spirit as well as the letter of the Charter.

It is positive in this sense that the 11th General Assembly emergency special session that began just a few days after the beginning of the war in Ukraine is being held in line with the “Uniting for Peace” resolution, which is still the decision that gives the General Assembly the power to take up matters of international peace and security when the Security Council is at a stalemate. Likewise, as I have already explained, the General Assembly has so far adopted six resolutions calling for Russia to restore peace. However, it has not attempted to use its powers to step in and recommend military action, a competence that should desirably fall upon this organ given that no other international body is better placed than the General Assembly to take over from the Security Council when it commits such a devastating dereliction of its duties. The undesirable alternative is to give up on the revolutionary ideal of being able to turn to an international guarantor of the legality of the use of force, which, ultimately, is designed to save us from the scourge of war (Tardy Reference Tardy2007). What is more, and as Franck pointed out a while back, unlike the Security Council, the General Assembly states still tend to vote in a principled way in responding to the use of force (Franck Reference Franck1984). This has definitely been highlighted by the widespread condemnation of the Russian attack already professed by the 140 something states that have approved the abovementioned General Assembly resolutions. Thus, it is time we urge the General Assembly to reconsider its fundamental role under the changing international scene brought about by the Ukraine war and to unleash the full potential of its crucial “Uniting for Peace” resolution. In this sense, it must reconsider taking on its lawful task of authorizing, when the required two-thirds majority is reached, a military intervention cynically thwarted by the Security Council permanent member involved in using force. Finally, it is worth noting that this solution also avoids facing an uncomfortable reality – that is, the possibility of other permanent members using their veto to continue blocking Security Council action in a show of support for the aggressor if they have somehow been expelled or neutralized according to the other proposals set out above (in the case at hand, we are all of course thinking of China).

A United Nations 3.0

Russia’s military operations inside the sovereign territory of Ukraine are on a scale that has not been seen in Europe in decades, and, in the words of the General Assembly’s resolutions echoing the sentiment of the United Nations Charter, urgent action is needed to stop the deplorable and dire consequences of war. Failure is not an option. If Russia is to remain a vetoing member of the Security Council and no solution is offered, this inaction would not only be setting a dangerous example for other states willing to embark on illegal warfare, but our future would be one where our international institutions for peace are captured by a state that no longer believes in the absolute prohibition of force (Fazal Reference Fazal2022). Surely, we cannot permit the legal constraints the world imposed on the use of force (after the last century was devastated by two global wars that resulted in the deaths of over sixty million people) to not be upheld and enforced. It is fundamental that we continue to believe that regulation is possible, that states are not condemned to wage war with one another, and that we must preserve our hard-won peace and the institutions and mechanisms of collective security set up for its protection. It is thus not enough to accept that we cannot act against a permanent member of the Security Council however atrocious their behavior and whatever the magnitude of their breach of international peace. Such international complacency toward permanent member state impunity could prove to be the last mortal blow to the United Nation’s already dying legitimacy. The stakes, therefore, are high enough to warrant one last while more radical step if the other solutions proposed were to fail.

One final way for the law abiding members of the international community to redeem their institutions and allow them to resume their imperative peacekeeping tasks that are being unlawfully sabotaged is to set up a new United Nations 3.0. The fact that it would be a United Nations 3.0 is precisely due to this option having already been carried out before, when the League of Nations was deemed unfit for purpose and replaced with the United Nations or “League of Nations 2.0.” The strategy followed then was to dissolve the hapless League and set up a new Organization between the fifty members – mainly those that had declared war on Germany and Japan – of the San Francisco Conference. Thus, the rest of the states did not see their memberships in the League of Nations automatically transferred, but, on the contrary, in order to be admitted into the new United Nations they had to fulfil the conditions for this new membership. The procedure, in essence, entailed the new General Assembly and Security Council judging that a state wishing to join the United Nations was a “peace-loving state” willing and able to carry out their Charter obligations (Art. 4 Charter). At that time, the effect was mostly to exclude the axis powers and their war allies until peace treaties were duly signed. In this case, we might start by constructing a new United Nations 3.0 around the members voting in favor of the General Assembly resolutions condemning Russia’s war on Ukraine. These would then be entitled to consider the applications of those wishing to join later on the basis of a change of stance with regards to their views on the absolute unlawfulness of war. Thus, this solution provides a means to pressure not only the aggressor but also all those other countries that have not openly demonstrated their support for international peace and security by either abstaining or voting against the international community’s condemnation of Russian actions. To put it into marital terms, these states would be required to renew their international vows. Finally, this opportunity would not only serve to restate the international community’s commitment to enforcing legal restraints on the use of force and isolate those states that are unwilling to reaffirm their pledge to uphold the same principles, but it could also be taken as a chance to finally embark on the long-awaited reform of the United Nations and its Security Council, providing an even better adaptation of our peacekeeping institutions to the new international scene. But that is a proposal for another day.