International law and global institutions: effective means in the fight against Putin?
The suspension of Russia from the UN Human Rights Council constitutes another international response to Putin’s war crimes. But Russia’s veto power continues to hinder the UN Security Council. Does international law only include symbolic value, a lack of consensus and no legally binding power?
On Thursday the 7th April, the United Nations General Assembly voted with the necessary two-third majority to suspend Russia from the UN Human Rights Council. The vote delivers another strong message in a series of resolutions condemning the Russian invasion of Ukraine. Admittedly, doubt in the power of international law increases every time a violation is being acknowledged by a global political or legal institution. Urges addressing Putin to stop the invasion remain unanswered. Different jurisdictions, legally unbinding doctrines and failure of unanimous votes in powerful councils suggest international law to only entail symbolic meaning. Are the global law measures only effective in peace times as threats and in war times merely “empty words” with no effect?
The hands of the United Nations are tied
Already on 2nd March, 141 of 193 member states of the UN General Assembly voted in favour of a resolution demanding Russia to immediately withdraw from Ukraine. Without effect.
Two days later, the UN Human Rights Council urged Russia to prevent further human rights violations. No success. Twelve days later, the International Court of Justice ruled 13-2 that Russia must “immediately suspend the military operations”. Ignored by Putin. Because the UN highest court at The Hague has no means of enforcement, not a single Russian representative even appeared at the trial. On top, Russia used its veto right in the UN Security Council to stop a resolution for an immediate end of the invasion. Although 11 out of 15 members voted in favour, the work of UN’s possibly most powerful organ was blocked by the accused country in question itself as it is one of 5 permanent members. For this reason, Ukrainian President Zelensky recently demanded the UN Security Council to expel Russia so “it cannot block decisions about its own war” anymore. But would an exclusion of Russia from the UNSC even be possible?
Exclusion from the UN Security Council?
On an EU level, the Council of Europe has already expelled Russia. Now, the UN General Assembly suspended Russia from the Human Rights Council. Nevertheless, it seems more difficult in the matter of the only UN body authorized to issue binding resolutions.
A procedure to remove a member from the Council does not exist. The word itself “permanent” member clarifies this. But according to Article 6 of the UN Charter a country can be expelled from the UN for “persistent violation” of the Charter principles. The horrendous images of the Bucha massacre provide evidence for a possible prosecution of Putin regarding war crimes. But it is questionable if it would also amount to a Charter violation, especially since the sanction has never been activated in the past 77 years.
However, even if those violations were sufficient, the General Assembly must vote upon the recommendation of the Security Council. But as mentioned before, in the Council Russia has a veto right. To bypass this hinderance, the Charter would have to be amended. But again, for an amendment Article 108 UN Charter demands all 5 permanent members to vote in favour. A vicious cycle. The veto power would furthermore prevent the implementation of a new provision to exclude any member to vote on resolutions concerning its own actions. Besides, China and the US would certainly not vote in favour of such changes in the light of their own past use of their status as permanent members.
Denying Russia’s membership
The Ukrainian UN Permanent Repesentative Sergiy Kyslytsya suggests to solve the veto blockage by claiming that the Russian Federation was never a permanent member at all. In fact, when examining the wording of Article 23 UN Charter, “the Union of Soviet Socialist Republics” is listed as a permanent member, which does not exist anymore since 1991. As there was no amendment and no vote by the General Assembly for the Russian Federation after the dissolution of the USSR, denying Russia’s membership could theoretically work. In international law Russia could be classified as a “successor state”, rather than a “continuing state”, meaning a new country was formed with no ongoing liabilities or rights from the old state. However, the membership has never been questioned once in 31 years. Sticking to the literal meaning now would undermine the long-standing practice of the UN. Additionally, China would refuse such a method, because the same issue could be raised for its own membership when taking into account the question of Taiwan.
Collective support for Ukraine and Human Rights
While the veto power of Russia is a tremendous obstacle, the condemnation of Putin’s leadership by the UN institutions shows great international unity. As US ambassador Linda Thomas-Greenfield argued, “you can veto this resolution, but you cannot veto our voices; (…) our principles; (…) the Ukrainian people; (…) and you will not veto accountability.” The investigations to hold Russia and/or Putin accountable before the International Court of Justice, International Criminal Court, European Court of Human Rights, European courts under the universal jurisdiction doctrine or perhaps even an independent tribunal in Nuremberg-style are at full speed. Neither the Russian veto right nor the denials of such crimes can stop the ongoing procedures. Shining a light on Russia’s atrocities ensures that they are undeniable. It could also enable the Russian people to acknowledge the problem, despite the many efforts of the propagating Russian government to seal the truth.
Even if Russia does not comply with the UN resolutions and international court orders, every action against Putin is weakening his status in the world. President Zelensky acknowledges the effort to support Ukraine with the words “a global anti-Putin coalition has been formed and is functioning. The world is with us.” Combined with the economic sanctions imposed, Russia is slowly but effectively weakened. Acting without violence is in fact a slow but sustainable and desirable process. Nonetheless, to collectively succeed in war times and against climate change, member states need to transfer more of their sovereign powers to the UN (and/or EU).
The veto right debacle reveals the necessity to update international treaties such as the UN Charter. Long-standing, unwritten practices require change. Moreover, members and non-members have to acknowledge legally binding power of the judiciary on global matters in the future. But this process cannot be completed overnight during an on-going war. Until then, the removal of Russia from the Human Rights Council was not only a symbolic anti-Putin move. It was also a strong confirmation of nearly 100 countries that the protection of human rights is of indispensable importance - something the world needs to be reminded of as often as possible. After all, standing united for the right values will prevail in the long run.