Ginger Without Borders

Last week, the United Nations General Assembly held a “special emergency session” under its “Uniting for Peace resolution” power. Unfortunately, while this event was widely covered in international news, the news didn’t always get the details right. So, as the UN nerd that I am, I decided to set the record straight:

The Basics

UN Charter article 20 allows the General Assembly to convene “special sessions as occasion may require.” However, the Uniting for Peace Resolution power is not based in this article. Instead, the General Assembly passed the “Uniting for Peace Resolution” (A/RES/377A) in November 1950 (around the beginning of the Korean War, when the US and the Soviet Union refused to agree on anything).

The Uniting for Peace resolution gives the General Assembly the power to meet in emergency special sessions within 24 hours of a special request from the Security Council, or a majority of the UN members if the Security Council is deadlocked because of the use of a veto. To protect abuse of these powers, though, the agenda of special sessions is closely controlled by the majorities that called for them. The most important takeaway, though, is Uniting for Peace resolutions maintain the same legal authority as Security Council resolutions – meaning they are legally binding and States must comply with the requirements set out in the resolution. If States don’t comply, they are violating international law.

As of 2021, the General Assembly has held 32 “special sessions” [via UN Charter article 20] and 11 “emergency special sessions” [via the Uniting for Peace resolution power] – the most recent of which was called to address the situation in Ukraine.

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Background

The Uniting for Peace resolution was adopted at the beginning of the Korean War, when the Security Council was essentially useless because the permanent five members [the United States, United Kingdom, France, China, and Russia] exercised their veto power liberally.

Nevertheless, the Uniting for Peace power has rarely been used. The last time the Security Council called for such a session was 1983; its use having decreased after the end of the Cold War, and the increased influence of the US to shelter Israel from UN condemnation.

The key portion of the Uniting for Peace resolution states:

“. . . if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security, the General Assembly shall consider the matter . . . with a view to making appropriate recommendations to members for collective measures.”

As we can see, part of the purpose of “Uniting for Peace” resolution was to allow the General Assembly to “make appropriate recommendations to Members for collective measures” when the Security Council fails to address an important situation. In this context, the General Assembly could theoretically even authorize enforcement action (i.e., forcing a State to comply with international law).

The UN used this enforcement power in the 1950s when the Security Council was deadlocked over the Korean war. However, in practice, author Dominik Zaum explains that the power has “failed to strengthen the UN as an instrument of collective security.”

How has the “Uniting for Peace” resolution actually been used?

Historically, the “Uniting for Peace” resolution power has been used to address situation where the Security Council is paralyzed due to the threat of a permanent member’s veto. However, instead of being used for the “collective security” of member States or to issue enforcement measures, the General Assembly has used this power to establish Peacekeeping Missions (PKOs).

This is not without controversy – France and the Soviet Union objected to the use of the General Assembly to take what they saw was “coercive action”, which is outside of the scope of the General Assembly’s powers. Thus, the UN had to ask the International Court of Justice (ICJ) for an Advisory Opinion on the matter, leading to the “Certain Expenses of the United Nations” case in 1961. In that case, the ICJ held that the General Assembly could exercise this power since participation in peacekeeping operations is optional, therefore no state is “coerced” into action.

The use of the resolution in 1983 was to address the situation in Afghanistan. In early January 1980, the Soviet Union vetoed a Security Council resolution calling for the withdrawal of Soviet forces from Afghanistan. As a result, the Security Council used a type of resolution called a “procedural vote” (which doesn’t allow permanent members to veto the resolution through a “no” vote) to invoke the “Uniting for Peace” resolution, therefore allowing the General Assembly to address the issue. The General Assembly then passed a resolution “strongly deploring” the recent intervention in Afghanistan, and calling for the “immediate, unconditional and total withdrawal” of any and all foreign troops from the nation. This is eerily similar to the situation in Ukraine.

In 2011, in response to the Syrian crisis, the Arab states attempted to invoke the “Uniting for Peace” resolution, since the Security Council was gridlocked by Russian and Chinese vetoes. However, these efforts were discouraged by the US, UK and France, and ultimately the vote was never taken.

So what is happening with Ukraine?

For the first time since 1983, on February 27, 2022, the Security Council passed a resolution invoking the “Uniting for Peace” resolution: Security Council resolution 2623. And just like the resolution in 1983, the Security Council used a procedural resolution so that Russia could not veto the resolution with it’s “no” vote.

The resolution is short, consisting of only three paragraphs. The key clause is this:

Decides to call an emergency special session of the General Assembly to examine the question contained in document S/Agenda/8979.

Through these few words, the General Assembly was given the power to pass a legally binding resolution to address the Russian invasion of Ukraine. This is only the 11th time that this power was used in the 77-year history of the UN.

On March 2, 2022, the General Assembly passed resolution A/ES-11/L.1 –“Aggression Against Ukraine”–with 141 votes in favour to 5 votes against (Belarus, Democratic People’s Republic of Korea, Eritrea, Russian Federation, and Syria), with 35 States abstaining from the vote. The resolution is clear – Russia must ends the hostilities in Ukraine, and Belarus must stop assisting in the Russian invasion. As UN Secretary-General Antonio Guterres said, the General Assembly’s message was “The message of the General Assembly is loud and clear . . . End hostilities in Ukraine – now. Silence the guns – now. . . . [A]s bad as the situation is for the people in Ukraine right now, it threatens to get much, much worse. The ticking clock is a time bomb.”

Now, so far, Russia is refusing to comply with this resolution. So what can the UN do? Well, that is a much more complicated question. So much so that there are multiple books written on the topic. But the short version is: States may take Russia to the International Court of Justice, or they may use Russia’s failure to comply with the resolution as justification for imposing extreme economic sanctions or taking actions that would otherwise be contrary to international law.

OK – so will Russian be sanctioned?

Has Russia been sanctioned? Yes. Was it based on this resolution? No. Has a case based on the invasion been taken to the ICJ? Yes. Was it based on this resolution? Also no. Does that matter? No. The fact that Russia is not complying with the resolution means there are more corrective, inherently strict measures that States may take to punish Russia for its actions. Moreover, while the current ICJ case is not based on this resolution, another case could be filed based on Russia’s noncompliance. Will that really matter to Russia in the long-run? No, probably not. But the more times Russia is held in violation of international law, the more actions States may take against the State [seizure of assets, breaks in relations, severe sanctions, etc. etc.] And unfortunately for Russia, in the globalized world we live in, it is almost impossible for a State of Russia’s size to function without the import and export of goods (especially food and oil) to other States.

Conclusion

The key takeaway here is – yes, Russia isn’t complying. No, this does not mean that international law is dead. In fact, it means that international law is alive and well, given the responses we are seeing from States.

International law is not designed to make the world perfect. The UN is not designed to prevent all wars [remember the Korean? And the Vietnam War? And the Gulf War? And the many, many other wars that have happened? Not to mention the genocides.] The United Nations is designed to exist as a platform for States to talk amongst each other and approach difficult topics in a united way. And that is exactly what it is doing.

A great example of this? The Ukrainian delegates’ bro-hug with the Singaporean delegate after a [very well done] speech expressing Singapore’s support of Ukraine (at 6 minutes 45 seconds):