THE UNITED NATIONS (IN)SECURITY COUNCIL: TIME FOR REFORM IN A POST-UKRAINE WAR WORLD?

• Author: Levy, Ivan

INTRODUCTION

Already in 1949, the International Court of Justice (ICJ) recognized that intervention with affairs of another state as a manifestation of force cannot find a place in international law. The particular danger raised by the ICJ was that such a state-of-the-art would be reserved to the most powerful states and prevent the administration of international justice itself. (1)

Some 73 years later, the war in Ukraine has left the world paralyzed, witnessing the rules governing the use of force in the United Nations system fail and proving the ICJ right. One of the purposes of the UN Charter is to maintain international peace and security and suppress acts of aggression or other breaches of the peace. (2)

In thinking about the post-Ukraine war world, it is logical to wonder how such an elaborate system, built exactly for the purpose of acting in the face of a war to restore peace, has failed. If the UNSC system is not reformed, future armed conflicts involving directly or indirectly any permanent member will almost invariably not find a solution within the United Nations.

THE UNITED NATIONS SECURITY COUNCIL AND ITS RESPONSE TO THE UKRAINE CRISIS: AN (IN) SECURITY COUNCIL?

The Role and Importance of the United Nations Security Council

In the United Nations system, the Security Council (UNSC) is the organ to which UN members "confer... primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf." (3)

The UN Security Council is currently composed of 15 members, five of which are permanent (4) and have a veto power for non-procedural matters. (5)

In the exercise of its functions, the UNSC can take measures not involving the use of armed force, (6) and measures involving the use of force, (7) which are binding on all UN member states. (8) In contrast, under the UN Charter, states individually are to refrain from the threat or use of force against the territorial integrity or political independence of another state. (9)

The system set up by the United Nations, therefore, removes the power of individual use of force from states, with exceptions such as self-defense, and places the monopoly of the use of force in the UNSC. For this rule to remain central to the system, the exceptions such as self-defense are indeed restrictive. For instance, lawful self-defense requires an armed attack against a UN member, and can only be employed until the UNSC takes action. (10) Furthermore, the exception of self-defense is subjected to conditions of proportionality and necessity. Therefore, self-defense would warrant only measures which are proportional to the armed attack and necessary to respond to it. (11)

In the current conflict in Ukraine, there have been claims of self-defense by Russia. These are by no means novel to international law. The United States claimed to be involved in certain matters pertaining to the use of force in Nicaragua in the late 1970s and early 1980s. The International Court of Justice, however, ruled that the use of force could not be the appropriate method to monitor or ensure respect for human rights. The Court...