The United Nations has long been seen as an Orwellian debating society, where rogue member states, such as Zimbabwe, Venezuela, Cuba and Russia introduce numerous resolutions and “white papers” that serve to diminish the effectiveness of U.N. peacekeeping operations and sanctions on member states. On March 15, 2014, based on Russia’s veto in the Security Council, the United Nations failed to adopt a draft resolution that urged countries not to recognize the results of the referendum in Crimea.
If you can’t pass a straightforward resolution, reaffirming a core U.N. principle embedded in Article 2.4, then what useful purpose does the U.N. serve? Article 2.4 states: “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.”
As a consequence of the inability of the Security Council to pass any resolutions condemning Russia’s actions in Crimea, on September 18, 2014, Polish President Bronislaw Komorowski called for a rule change in the United Nations Security Council to override Russian vetoes. “My main message will be that perhaps the United Nations should be reformed to make the institution capable of addressing the threats that really exist today. I think blocking the Security Council on Ukraine is a token, a symptom, of the general weakness of the U.N.” proclaimed Mr. Komorowski.
On February 14, Russia cynically introduced a surprise draft resolution at the Security Council, just before the latest Minsk 2 ceasefire agreement was to start, endorsing the new agreement and calling on all parties involved to fully carry out its provisions. Russia’s draft included a reference to the “sovereignty and territorial integrity of Ukraine.”
The Minsk 2 agreement, signed February 12, does not acknowledge Russia’s role as a party to the conflict, or the presence of Russian weaponry and military personnel on Ukraine’s territory. Russia wanted to cement the Minsk 2 agreement with a resolution in the U.N., which does not fault Russia for any of the turmoil, and indirectly cedes Crimea to Russia. The U.S., the U.K., China and France went along with the resolution, knowing full well that this was the ultimate aim of the resolution.
In the “Alice in Wonderland” world that is now the U.N., Russia writes the resolutions on Ukraine, which are accepted by the U.S. and then passed by the Security Council. It’s a pact with the devil, and there does not seem to be any way to get out of this artificial diplomatic merry-go-round. Both Russia and China are permanent members of the U.N. Security Council, with a pernicious absolute veto power that over the past seven decades has relentlessly thwarted all attempts at securing the founding principles of the United Nations.
More than any time since Munich in 1938, we live in an Orwellian age of diplomatic platitudes, buttressed by the numerous U.N. formalities of self-deception. Ceasefire treaties are solemnly negotiated and immediately ignored (think Minsk 1 and 2). Security treaties are signed and broken before the ink has dried.
Diplomats shuttle to and fro, in a delusional belief that diplomacy is the answer to all of our problems. “It is better jaw-jaw than war-war,” proclaimed Winston Churchill at a speech in the White House in 1954. This, from the man who fearlessly saved both Britain and Europe by confronting Adolph Hitler and emphatically rejecting the “jaw-jaw” politics of Neville Chamberlain.
On February 18, Ukraine decided to request the United Nations Security Council to authorize a peacekeeping contingent or police mission that would discourage further advances of Russian and proxy forces in Ukraine’s east. This request was reinforced on February 23 by Ukraine’s Foreign Affairs Minister Pavlo Klimkin in a speech before the U.N. Security Council.
Mr. Klimkin asked the U.N. to deploy a peacekeeping operation in the country because the Organization for Security and Cooperation in Europe was not able to control the Russian-Ukrainian border, nor effectively manage the ceasefire. U.N. Secretary General Ban Ki-moon told Mr. Klimkin in a phone conversation that the United Nations would stand guided by any decision the Security Council would make on the peacekeeping operation. Therein lies the crux of the problem: the Security Council cannot make a responsible decision about Ukraine over Russia’s veto.
An immediate response came from the head of the Foreign Affairs Committee of Russia’s lower parliamentary house, Alexei Pushkov, who wrote on his Twitter page: “Given the Russian veto in the U.N. Security Council, Kiev [sic] will not be able to impose a solution.”
In his speech, Mr. Klimkin strongly criticized Russia’s actions. “The Russian Federation has blatantly violated [the] sovereignty, independence and territorial integrity of Ukraine. It used all means from interference into Ukraine’s internal affairs to direct military aggression and partial occupation of the Ukrainian sovereign territory, from political and economic coercion to a massive propaganda assault. Without exaggeration, Russia unleashed a hybrid war on Ukraine.”
“It is horrifying that these flagrant violations have been committed by a permanent member of the United Nations Security Council that bears a special responsibility for maintaining international peace and security,” he continued. “Russia ignores the provisions of the U.N. Charter and does not respect its political and legal obligations emanating from other international agreements, including the Budapest Memorandum on Security Assurances to Ukraine. To justify its brutal actions, it hides behind bare-faced misinterpretation of the relevant documents and its related commitments.”
Mr. Klimkin went on to lay out three conditions for the U.N.: first, uphold the Purposes and Principles of the U.N. Charter; second, elaborate on mechanisms to ensure verification of compliance with the U.N. Principles against clear benchmarks; and third, ensure that the states which violate the U.N. Principles are brought to justice. The concept of international responsibility should be reinforced with a clear set of sanctions on the infringers.
Mr. Klimkin was also alluding to a fundamental problem with the way the U.N. Charter is structured, and called for the reform of the system which allows Russia to remain on the Security Council as a voting permanent member, despite creating the very violations that come before the Security Council for resolution. Why is Russia allowed to even vote on these matters before the Security Council, when it itself is perpetrating the violations of the U.N. Charter? At a minimum, Russia should be forced to abstain from such matters, and not be allowed to introduce resolutions that thwart actions which promote basic tenets of the U.N. Charter.
Mr. Klimkin was also referring to the extra-legal way in which the Russian Federation became a permanent member of the U.N. Security Council, in place of the USSR, not having gone through the proper procedures, as did Serbia, after the fall of Yugoslavia (Resolution 55/12 of the General Assembly of November 1, 2000), or the Czechoslovak Federal Republic (Resolution 47/221 and Resolution 47/222 of January 19, 1993).
One does not have to be a lawyer or legal scholar to recognize some self-evident truths that any rational layperson can understand. The doctrine of jus cogens (from Latin: compelling law; English: peremptory norm) comes to mind. It refers to certain fundamental, overriding principles of international law, from which no deviation is ever permitted. For example, there is an absolute duty to prevent war crimes and genocide.
Like other political constitutions, the U.N. Charter contains provisions for its own amendment. Amendments to the Charter come into force when they have been adopted by a vote of two-thirds of the members of the General Assembly and ratified by two thirds of the U.N. member states, including all the permanent members of the Security Council. The five permanent members of the Security Council (P5) are the only ones with the power of a veto. That means that Russia can veto any amendments that threaten its veto power.
So, there exists a conundrum of circular U.N. reasoning and procedural cul de sacs that can only be broken by resorting to the rational legal doctrine of jus cogens, which is recognized by the International Court of Justice. Every P5 veto should be measured against the existing relevant peremptory norms. Regrettably, while the doctrine has been discussed in the chambers of the U.N., as part of the deliberations of special committees, it cannot overcome the hurdles of Russia’s veto.
The U.N. has set up a Special Committee on the Charter of the United Nations, of which Ukraine is a member. Its agenda included the reform of the Security Council – the main U.N. body responsible for international peace and security. Ukraine has made efforts to introduce changes to the Charter, to no avail.
Ukraine has a right to self-defense, and Article 51 of the U.N. Charter says as much: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
There is one perfectly sensible and legitimate way to deal with Russia’s blatant violations of both the U.N. Charter and the Budapest Memorandum. It couples the doctrine of jus cogens with the provisions of Article 52 of the U.N. Charter, which allows for regional security measures that are consistent with the U.N. Principles: “Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.”
In other words, NATO can step in, without Security Council approval, especially since Russia, the U.S. and the U.K. have not upheld the terms of the Budapest Memorandum of 1994 in which they all guaranteed to protect Ukraine’s sovereignty and territorial integrity from outside aggression. NATO should, as a minimum first step, help arm and train Ukrainian forces as part of the principles within Article 51. Article 52 provides the framework for a broader regional approach to security. But, these steps, as with all others, depend on the leadership of German Chancellor Angela Merkel and U.S. President Barack Obama, both of whom are very reluctant warriors.
And we are back where we started, on the diplomatic merry-go-round that is known as the U.N.