24 February 2023

On the Side of International Law

The General Assembly’s Emergency Special Session on Ukraine

This Wednesday, the United Nations General Assembly resumed its Emergency Special Session on Ukraine, amidst a turbulent week that witnessed US President Biden’s surprise trip to Kyiv, Russian withdrawal from the New START Treaty, and Chinese top diplomat Wang Yi’s visit to Moscow, amongst other things. On Thursday, the Assembly adopted resolution ES-11/6 (draft here) with 141 votes in favor, seven against, 32 abstentions and 13 countries not voting. If the Russian aggression last year was a watershed moment for the United Nations, then the organ to watch these days is the General Assembly, and not the Security Council, as the Council is deadlocked, and any substantive action will be blocked by the Russian veto (there was a session this week in the Council on the North Stream 2 explosions, with rather questionable expertise, and another session will be held this Friday, but no outcome is expected). The General Assembly is thus the most important political body within the United Nations that can take action regarding the conflict in Ukraine and while it might not be able to prescribe coercive measures, its resolutions should not be considered less valuable for the assertion and evolution of international law – and member states should not be shy to emphasize this.

The Emergency Special Session was not legally required, but politically important

The Emergency Special Session of the General Assembly on Ukraine was first convened last year, following a deadlocked Security Council and a veto by the Russian Federation on a Council draft resolution condemning Russia’s aggression in Ukraine. The Security Council, citing the “lack of unanimity of its permanent members [that] prevented it from exercising its primary responsibility for the maintenance of international peace and security”, decided to convene this session, for the first time since 1982, when it had requested an Emergency Special Session on the Golan Heights. It could do so because voting on the Security Council resolution referring the matter to the General Assembly is considered a procedural vote, precluding the use of the veto.

Over the almost 80 years of the UN’s existence, there have only been 11 Emergency Special Sessions, including the current one. Their legal basis is the famous “Uniting for Peace” resolution. Primary responsibility for international peace and security lies with the Security Council according to the UN Charter, but the Uniting for Peace resolution provides that the General Assembly can step in “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”. Emergency Special Sessions were originally a means to convene the General Assembly when it was not in session. There was no procedural need to convene an Emergency Special Session on Ukraine – the General Assembly could have addressed the matter by adding an agenda item to its then-ongoing 76th session (the General Assembly is nowadays in session almost year-round). Neither is it necessary that the Security Council convene an emergency special session – such sessions can also be convened at the request of a UN member if a majority of member states support the request. But the fact that the Security Council explicitly acknowledged its failure to achieve agreement is politically significant, and so is convening an emergency special session: it highlights that this is an unusual matter for the General Assembly, not a routine item.

What the General Assembly can (and cannot) do

Since the Emergency Special Session was first convened on February 28, 2022, the General Assembly has adopted six resolutions (including yesterday’s resolution). Some of these resolutions have had clear legal consequences, perhaps most notably the resolution suspending Russia’s membership rights in the Human Rights Council. Other resolutions have denounced Russia’s aggression and recalled obligations under the UN Charter to refrain from the use of force, seek the peaceful settlement of disputes, respect the territorial integrity and sovereignty of states, and respect international humanitarian law and international human rights law. All resolutions contain important statements on the illegality of Russian action: the General Assembly has clearly stated that the referendums in Donetsk, Kherson, Luhansk, and Zaporizhzhia were illegal and that the Russian Federation must be held to account for any violations of international law in or against Ukraine, including through reparations. But what is the legal value of such resolutions?

It is well-known that the General Assembly “may make recommendations to the Members of the United Nations” whereas decisions by the Security Council are legally binding upon UN member states. It thus seems clear: while statements by the General Assembly are nice to have, they are not legally binding – unlike resolutions by the Security Council, which would have legally binding effect, but are not available due to the veto. This distinction seems both clear and immensely significant. But a closer look leaves a much blurrier picture. For one, the Security Council also adopts recommendations, and whether a resolution of the Security Council is a decision with legally binding force upon its members needs to be determined in each individual case. Secondly, while the General Assembly is not able to prescribe coercive measures, it can recommend them – as Rebecca Barber has convincingly shown last year, this theoretically includes recommending unilateral coercive measures, including sanctions, and arguably even the use of force. Lastly, even if the Council unequivocally takes a decision, it is not clear that such a decision would usher in significantly different consequences.

Let’s take the case at hand. The very first resolution adopted by the General Assembly in its Emergency Special Session took up almost by the letter the text of the draft resolution that had failed in the Security Council. The General Assembly did add several clauses, especially in the preambulatory part, and updated others, but incorporated the whole draft from the Security Council – with one important difference: whilst the Security Council draft resolution had aimed for the Council to decide that “the Russian Federation shall immediately cease its use of force against Ukraine and shall refrain from any further unlawful threat or use of force”, “that the Russian Federation shall immediately, completely, and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders”, and that it “shall immediately and unconditionally reverse the decision related to the status of certain areas of Donetsk and Luhansk”, the General Assembly, lacking the competence to make binding decisions, demanded these steps. Otherwise, the wording is identical. In fact, it is an affirmation of an already existing obligation of Russia to refrain from the use of force – an obligation that finds its source both in the UN Charter and in customary international law. Seen from that point of view, even if the Security Council had adopted the resolution instead of the General Assembly, it would not have created new obligations under international law, but rather have concretized already existing obligations. If that is so, then the only reason why we give a resolution of the Security Council more weight is some form of perceived greater authority of the Council. But it is at least questionable whether the primary responsibility to maintain international peace and security is sufficient to accord the Council such greater authority, especially in a case where it has failed to assume this responsibility and the residual responsibility in matters of peace and security of the world organization’s only plenary organ kicks in.

Of voting and politics at the General Assembly

While the legal value of a General Assembly resolution and a Security Council decision might thus be formally different, in practice, the difference between resolutions emanating from both organs is not so big. What matters, then, is acceptance of the resolutions coming out of the Emergency Special Session, and one important indicator here has been how member states have voted on the resolutions. There have been considerable differences: the first resolution deploring Russia’s aggression and demanding the withdrawal of Russian troops from Ukraine’s internationally recognized territory received 141 affirmative votes, with only five votes against, and the resolution declaring the so-called referendums in Donetsk, Luhansk, Kherson, and Zhaporizhzhia illegal even received 143 affirmative votes. In turn, only 93 member states voted in favor of suspending Russia’s membership rights in the Human Rights Council and 94 member states approved of the idea to establish reparation mechanisms – less than half of the UN’s membership. This has led commentators at the UN to assert that while “the bulk of U.N. members have demonstrated sympathy for Ukraine, many want to avoid imposing concrete penalties on Russia through the General Assembly”. If this is true, the General Assembly is far from recommending coercive measures, even if this might be legally permissible.

Yesterday’s resolution, titled “Principles of the Charter of the United Nations underlying a comprehensive, just and lasting peace in Ukraine” marks “one year into the full-scale invasion of Ukraine” (language that Belarus had sought to remove from the draft, but failed). It reaffirms the General Assembly’s commitment to the sovereignty, independence, and territorial integrity of Ukraine within its internationally recognized borders, and largely reiterates prior demands: that Russia withdraw its military forces from Ukranian territory, full adherence to international humanitarian law and international human rights law, an immediate cessation of attacks on critical infrastructure, and the need for accountability and independent investigations. Nothing new then, one might think – and yet, the regular reiteration of core demands and statements affirming legal opinions not only of states but also of organs of international organizations is no small feat. Rather, it helps consolidate a legal stance – if supported by a broad coalition. This is precisely what Ukraine was seeking, according to Foreign Minister of Ukraine Kuleba: a clear commitment to fundamental principles of the UN Charter, to “take the side of international law”. Did Ukraine succeed?

A close look at the voting record and the debate paints a mixed picture. The resolution was introduced by Ukraine and sponsored by a large coalition of various regional groups, with one important absence: only one country from the African group, comprising no less than 54 member states, appeared on the official sponsor’s list of the resolution (Niger). The African Group was also largely absent from the Speaker’s list during the debate: as far as this author is aware, only Tunisia delivered a formal statement, in which it emphasized the importance of dialogue. Several African states, including Nigeria, Angola, and South Africa, delivered statements explaining their votes, in which they voiced discontent with the negotiation process. Nigeria put on the record that, even if it was going to vote in favor of the resolution, it opposed specifically the clause on accountability, a matter it felt precluded constructive peace talks. South Africa, India, and China abstained, citing as the main reason that the resolution does not propose specific steps that would lead toward an end of the war.

Let’s not forget about other parts of the UN system!

Despite the abovementioned reluctance of some parts of the General Assembly to fully endorse this week’s resolution, the Emergency Special Session sends an important signal that large parts of the international community are supporting Ukraine and that very few states side with Russia in this war. It also serves as a reminder that the UN is more than just the Security Council. In fact, it is also more than the General Assembly. This blog post has focused on the General Assembly, but many other parts of the UN system are active in Ukraine. Many UN programmes and funds are active on the ground, providing humanitarian assistance, and the Black Sea Grain Initiative has secured food exports out of several Ukrainian ports, at least partly averting a global food crisis. The Human Rights Council established an Independent International Commission of Inquiry on Ukraine, complementing the Human Rights Monitoring Mission in Ukraine which had been established in 2014. These mechanisms are crucial in securing evidence of human rights violations committed in the war. Only this week, the Head of the Human Rights Monitoring Mission in Ukraine released data according to which at least 8,000 non-combatants had been killed in the war (emphasizing that this is a rather conservative estimate and real numbers are likely much higher). The International Court of Justice, the UN’s principal judicial organ, is seized in two cases, one case initially filed in 2017 on the Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination, the other one filed immediately after Russia’s aggression, on Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide, in which the Court ordered Russia to “immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine”. And there remains the open question of whether the General Assembly will endorse the establishment of a Special Tribunal – this is one possible outcome of a further resumption of the Emergency Special Session. None of these steps have had, or are likely to have, an immediate effect on Russia’s war in Ukraine. But they are all steps in reaffirming the current international legal order as one that holds the prohibition of the use of force in the highest regard. In the decentralized legal order that is international law, it matters less what formal value a document has – what matters is the repeated assertion of legal principles in all venues and fora that are available.