Outcasting the Aggressor: The Deployment of the Sanction of “Non-participation”

Abstract

This Essay explores the sanction of “non-participation,” which has been used against Russia following the start of the war in Ukraine. After mapping out the multifaceted instances of Russia's exclusion from international organizations, the analysis considers the legality of measures adopted that do not have an explicit basis in institutional rules. The Essay concludes with broad reflections on the use of international organizations as platforms to stigmatize and isolate the violator and outlines some consequences and functions that the sanction of “non-participation” has today.

After Russia’s invasion of Ukraine in 2022: Can we still cooperate with Russia in the Arctic?

“…If particular cooperative activities relevant to the Arctic are undertaken under a treaty framework, the advice would be that Russia may not be suspended or excluded from such cooperative activities without the other treaty parties demonstrating that Russia has materially breached the same treaty and that the unanimous agreement of the parties other than Russia had been obtained. In the case of ICES, the decision to temporarily suspend Russian participation in all its activities was taken by a majority decision of 18 in favour, one against and one abstention (Buscemi, 2022), which is possible under the Rules of Procedure of ICES. If this case were to be legally justified as a suspension of Russian right under the treaty, such measure must have satisfied the high threshold provided in the VCLT, as described above.…”

“…Consequently, the 30 March ICES decision, albeit "temporary," would legally be characterised as a suspension of participatory rights of Russia under the treaty (Shibata, 2022). At the same time, as will be discussed below, since the majority decision-making is allowed under ICES Rules of Procedure, such an institutional decision to temporarily suspend the participation of a member was actually taken according to such procedural rules (Buscemi, 2022). The authors of this article have not been able to obtain ICES's official legal opinion on this point.…”

“…According to VCLT, suspending a treaty operation in regard to a particular party would be allowed in conformity with an explicit provision of the treaty or by consent of all the parties (Art.54). For example, the cessation of Russian membership in the Council of Europe decided on 16 March 2022 was in accordance with the explicit provision and procedures provided in the treaty establishing the Council (Council of Europe, 2022;Buscemi, 2022). VCLT also provides a legal possibility of suspending the operation of a treaty in regard to a state party that has committed a material breach of the treaty (Art.60).…”

Russia, Ukraine, and the Future World Order

“…Martina Buscemi argues that a range of global international organizations have suspended Russia or otherwise limited its participation in meetings or decision making, even when the legal basis for doing so is unclear. 56 In her view, the "paralysis" of the UN Security Council during the war has helped to produce more powerful international organizations. 57 Buscemi's assessment is consistent with what Elena Chacko and Katarina Linos find with respect to the EU, which has centralized its authority over foreign policy, energy, and migration during this war.…”

Long Live Article 2(4) of the UN Charter? Four Ways to Save the Peaceful Rules-Based International Order after Russia’s Invasion of Ukraine

“…Expulsion, on the other hand, could serve not only to allow the Security Council to act but also as an important "non-participation" sanction by which the lawbreaker is denied the benefits of international cooperation. This tactic is a well-known means of intimidation that might pressure the "pariah state" into giving up its abominable ways (Buscemi 2022). Furthermore, both reactivating the Security Council and marginalizing those who disrespect the most basic principles of peaceful relations can, in turn, help to revive the credibility and relevance of the United Nations.…”