The Russian Invasion of Ukraine and Article 51 of the U.N. Charter
On February 24, the President of the Russian Federation, Vladimir Putin, stated that “[t]he people’s republics of Donbass have asked Russia for help. In this context, in accordance with Chapter 7, Article 51 of the United Nations Charter..., I made the decision to conduct a special military operation."
But what is Chapter 7, Article 51 of the United Nations Charter and is it applicable here? An analysis of said article must begin with Article 2(4) of the UN Charter. Article 2(4) is one of the central tenants of the United Nations Charter and states that “[a]ll 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.” Ukraine and Russia both joined the United Nations on October 24, 1945. As active members of the United Nations, Article 2(4) is fully applicable to both, and Russia is in clear violation of it. However, the United Nations Charter, in Chapter 7, Article 51, recognizes one exception to the use of force prohibited by Article 2(4).
Article 51 states that “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence 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.” The International Court of Justice (“ICJ”) expanded and clarified the requirements for the applicability of Article 51 in Nicaragua v. United States of America. For a member state to be able to justify its actions based on Article 51, there must be: (1) an armed attack, (2) attributable to a state, (3) the victim of the attack requests help, (4) the response is necessary, and (5) the response is proportional. In Nicaragua v. United States, the ICJ found that the United States could not justify its actions of intervening in Nicaragua as being collective self-defense on behalf of El Salvador, Honduras, and Costa Rica because El Salvador did not act like it was a victim of an armed attack, and Honduras and Costa Rica made no mention of requesting help from the United States.
Even assuming, for the sake of argument, that there has been an armed attack and that the regions of Donetsk and Luhansk asked Russia for help, Russia cannot fulfill the other requirements of Article 51. The United Nations Charter was drafted for and by states. Consequently, a state must be the one that requests help relying on Article 51. The Montevideo Convention on the Rights and Duties of States establishes that “[t]he state as a person of international law should possess the following qualifications: a permanent population; defined territory; government; and capacity to enter into relations with the other states.” It further states that “the political existence of the state is independent of recognition by the other states.”
Assuming that the two regions can fulfill the first three requirements, they do not qualify as states because they cannot enter into relations with the other states. This last requirement implies independence; the independence to enter into relations with another state. The regions of Donetsk and Luhansk do not have such independence. For one, the overwhelming majority of the states do not recognize these regions as states, meaning that they do not have the ability to enter into diplomatic relations with those states since they are not recognized as states. Second, Ukraine still claims and is disputing parts of the regions. Third, the regions are not politically independent of Russia. Russia has given the residents of Donetsk and Luhansk Russian citizenship and introduced Russian textbooks and currency. Additionally, a reported 16,000 residents of Donetsk and Lugansk are members of Russia’s ruling United Russia Party. Moreover, Russian politicians are taking positions in the governments of Donetsk and Luhansk. Consequently, the lack of independence demonstrates that the regions do not have the capacity to enter into relations with other states, and thus, do not qualify as states under international law. Because these regions are not states under international law, Russia cannot rely on Article 51 to come to their defense.
Even if the regions of Donetsk and Luhansk were victims of an armed attack, solicited the help of Russia, and were recognized as states under international law, the Russian response was in no way proportional. Even further, assuming that the regions of Donetsk and Luhansk were attacked, solicited the help of Russia, can be recognized as states, and benefited from a proportional response by Russia, Article 51 does not grant the ability to use force against another state indefinitely. Article 52 only allows the use of force in self-defense “until the Security Council has taken measures necessary to maintain international peace and security.” Article 51 puts the ultimate responsibility for maintaining international peace and security on the United Nations Security Council, not on states acting in collective self-defense relying on Article 51. It is evident that Russia’s actions do not fall under Article 51, and even if they did, Russia has a duty to allow the United Nations Security Council to resolve this and any other crisis.
