How to Strip Russia of Its Veto Power in the UN Security Council on Ukraine

The Failure of the Security Council: Precedents of Veto Use

The most glaring example of the UN Security Council’s failure at the outset of Russia’s full-scale invasion is the consideration of resolution “S/2022/155,” whose core demands were an immediate cessation of aggression and the withdrawal of troops.

Had that resolution been adopted by the UN Security Council, Russia would have faced two options:

1. Submit to the international community and end its bloody war;
2. Continue military operations — in which case Russia would have had to expect a serious response from the UN Security Council for non-compliance with the resolution, as well as various sanctions from the international community.

Since Russia is a permanent member of the UN Security Council, it exercised its veto right and blocked the resolution. This became the key reason for the protracted full-scale war, which has now lasted four years and has cost the lives of more than 50,000 Ukrainians.

The veto right allows permanent members of the UN Security Council to block decisions. Russia has repeatedly used its veto to block decisions on Ukraine-related matters, including:

1. “S/2014/189” on the legal non-recognition of the referendum on the status of the Crimean peninsula;
2. “S/2015/562” on the establishment of an international tribunal regarding flight MH17;
3. “S/2022/155” on the immediate cessation of military aggression against Ukraine;
4. “S/2022/720” on the immediate cessation of military aggression against Ukraine and the non-recognition of the so-called referendums held there.

The UN Charter provides the Security Council with various measures under Articles 33, 41, 42, and 48 for the peaceful settlement of disputes and for taking action in response to threats to the peace, breaches of the peace, and acts of aggression. Such measures would have been directed toward assisting Ukraine. Yet, as reality shows, Russia neither accepts nor will accept decisions aimed at helping Ukraine or imposing sanctions upon itself.

To address this problem, I propose examining a mechanism for stripping Russia of its veto right with respect to Ukraine in the UN Security Council.

Step 1. Defining the Nature of the Conflict as a Dispute

As a first step, I propose distinguishing the nature of the conflict between Ukraine and Russia. According to the decision of the Permanent Court of International Justice in 1924 in the Mavrommatis case, the following definition was given: “A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons (in this context — subjects of international law).”

During attempts at peaceful negotiations between Russia and Ukraine, Russia put forward the following demands for conflict settlement: Ukraine’s neutrality; the absence of reparations from either side; Ukraine must adopt laws regulating the status of the Russian language; Ukraine must not contest Russia’s “constitutional” claims over five Ukrainian regions; the Armed Forces of Ukraine must withdraw from all five Ukrainian regions claimed by Russia.

The Ukrainian side disagrees with the claims advanced. Moreover, Russia’s demands contradict international law, for instance:

1. The current Articles 1 and 2 of the Budapest Memorandum of 1994, which directly contradict Russia’s claims;
2. Article 2(4) of the UN Charter: “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…” — which directly contradicts Russia’s claims.

Accordingly, we have established that the conflict between Ukraine and Russia involves a disagreement over facts, rights, interests, and legal views. We can conclude that a dispute exists between Russia and Ukraine.

Step 2. Requesting an Advisory Opinion from the ICJ Through the GA

The next step in implementing this mechanism would be to draft a document for a vote in the UN General Assembly requesting an advisory opinion from the International Court of Justice. The document should incorporate and apply the following argumentation:

1. Russia initiated and is actively continuing to wage war against Ukraine;
2. A dispute exists between Russia and Ukraine;
3. Russia has violated the UN Charter, specifically Articles 2(3) and 2(4);
4. Russia has violated international agreements it had accepted, specifically:
   1. Articles 1, 2, 4, and 6 of the Budapest Memorandum (December 5, 1994);
   2. Articles 3, 4, 5, and 6 of the Agreement on the Establishment of the Commonwealth of Independent States (December 8, 1991);
   3. Articles 1–7 and 10 of the Final Act of the Conference on Security and Cooperation in Europe (August 1, 1975);
   4. Articles 1, 2, and 4 of the Treaty between Ukraine and Russia on the Ukrainian-Russian State Border (January 28, 2003);
   5. Articles 26 and 53 of the Vienna Convention on the Law of Treaties (May 23, 1969);
5. Russia has violated the Declaration on Principles of International Law (October 24, 1970) as well as general principles of law;
6. Russia has violated peremptory norms of jus cogens, specifically: the prohibition of aggressive war and the use of force contrary to the UN Charter, the prohibition of genocide, the prohibition of crimes against humanity, and the prohibition of torture and other cruel, inhuman, or degrading treatment or punishment.

We consider it necessary, in order to restore and preserve international peace and security and human lives, to declare Russia’s veto in the UN Security Council void with respect to any matters related to the dispute of Ukraine against Russia, on the basis of one of the foundational and general principles of law: Nemo judex in causa sua (No one may be a judge in their own case).

Steps 3–4. Voting in the GA and Proceedings Before the ICJ

The next step is a vote in the UN General Assembly. A request for an advisory opinion from the ICJ requires the support and votes of a majority of states in the GA. Taking into account the support of the international community, the legal soundness of the argumentation, and the track record of GA votes on matters supporting Ukraine, we can conclude that a decision favorable to Ukraine and directed as a request to the International Court of Justice is highly likely to be adopted.

The ICJ, having received a request for an advisory opinion to satisfy it, will apply the means provided in Article 38 of the Court’s Statute. Although Article 38 provides for the application of these means directly for the resolution of disputes submitted to the Court, Article 68 permits the Court to be guided by the provisions of the Statute when performing its advisory functions as well. Accordingly, the Court will rely on Article 38 in satisfying this request.

Thus, based on the above argumentation in the request to the Court, the following conclusions may be drawn:

1. Point (a), if applied by the Court, based on the prevailing factual and legal argumentation, is more likely to be applied in our favor.
2. Point (b), if applied by the Court, based on the prevailing factual and legal argumentation, is more likely to be applied in our favor.
3. Point (c), if applied by the Court, based on the prevailing factual and legal argumentation, is more likely to be applied in our favor.
4. Point (d), if applied by the Court, based on the support of the international community and legal doctrines, is more likely to be applied in our favor.
5. Given that the veto right of a permanent member — which Russia is — is enshrined in Article 27(3) of the UN Charter, if applied by the Court, this operates against our favor.
6. Taking into account Article 27(3) of the UN Charter, which limits the voting restriction to decisions under Chapter VI and Article 52(3), if applied by the Court, this also operates against our favor.

In summary, from the standpoint of international law, and given the preponderance of argumentation on our side, the ICJ is more likely to issue a ruling that satisfies Ukraine.

Steps 5–6. Bringing the Opinion to the UN Security Council

In the event of an unfavorable ruling by the Court, Ukraine must continue to argue its case and use available mechanisms of international law to restore and preserve international peace and security and human lives — for example, UN General Assembly Resolution 377 A (V).

In the event of a ruling that satisfies the request set out in the document, Ukraine must bring this opinion to the attention of the international community and the UN Security Council.

The next point is the submission of the document to the members of the UN Security Council. The Ukrainian delegation must present the Court’s opinion to the Security Council together with a document for a vote — for instance, on the international non-recognition of Russian-occupied Ukrainian territories — in order to immediately test compliance with the Court’s advisory ruling.

And this stage is the most critical for achieving our initial objective. There are two possible outcomes of such a session:

1. The presiding officer, with the support of other Security Council member states and relying on the Court’s opinion, identifies Russia’s veto as void, and the resolution is adopted — this outcome is favorable. Our initial objective is achieved and the problem identified is resolved.
2. An outcome in which Russia casts its veto and the presiding officer recognizes Russia’s vote as valid — this outcome is unfavorable.

Step 7. UN General Assembly Resolution 377 A (V) as a Fallback Mechanism

In the event of unfavorable outcomes at steps 5 and 6, the only legal path remaining is the application of UN General Assembly Resolution 377 A (V), which — given the prior argumentation regarding Russia’s unlawful actions and its systematic blocking of decisions on the dispute between Ukraine and Russia — has every basis to replace the Security Council paralyzed by the Russian delegation and to adopt decisions at the already-convened 11th UN Emergency Special Session.

By invoking Resolution 377 A (V), the international community — and Ukraine in particular — can adopt decisions that, owing to the potential complete collapse of the Security Council, could not have been adopted previously. In light of the above argumentation, as well as the potentially directed advisory opinion of the ICJ, the international community must adopt decisions on the restoration and maintenance of international peace and security that Russia had previously blocked.

Conclusion

The UN Security Council has demonstrated its inability to impose sanctions on a permanent member state when that very state is the aggressor.

This essay proposes one path toward stripping an aggressor of the veto right — a right wielded to serve its own interests and evade sanctions — through such international bodies and institutions as the UN General Assembly, the International Court of Justice, the UN Security Council, and UN General Assembly Resolution 377 A (V). As we previously reported, the student essay contest “Is It Possible to Expel Russia from the UN?” received submissions from across Ukraine, and the winners were announced in Kyiv.

This mechanism is entirely viable given its legal foundation, and Ukraine and the international community will hope that one day justice, international peace, and security will be restored and will no longer be violated.