What can the UN General Assembly do about Russian Aggression in Ukraine?

Yesterday Devika Hovell wrote an excellent post on this forum, rightly noting that the Security Council was not the body to deal with Russian aggression in Ukraine. Hovell pointed to the General Assembly as the most appropriate alternative, and suggested that the Security Council should pass a ‘Uniting for Peace’ (U4P) resolution, referring the matter of Ukraine to the Assembly.

This post picks up from where Hovell’s left off. It examines, firstly, whether there is any need for the Security Council to refer the matter of Ukraine to the General Assembly pursuant to the U4P Resolution; and secondly – briefly – what the Assembly could practically do.

The Uniting for Peace Resolution

The U4P Resolution was passed by the General Assembly in 1950, in order to circumvent the Soviet veto in relation to the Korean war. It states that:

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 in any case where there appears to be a threat to the peace, breach of the peace or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures.

The Resolution stated that if not in session at the time, the General Assembly ‘may meet in emergency special session’, and that such session may be requested by a majority of the Security Council. That request by the Security Council would be of a ‘procedural’ nature, and as such, not subject to the veto.  

In essence, the U4P Resolution described a procedural framework by which the Assembly could consider and make recommendations on matters of international peace and security, provided three criteria were met: (i) lack of unanimity amongst the Security Council’s permanent members; (ii) failure of the Security Council to exercise its responsibility for international peace and security, because of that lack of unanimity; and (iii) the existence of a threat to the peace, breach of the peace or act of aggression. Obviously in the case of Russia/Ukraine, these conditions are satisfied.

It is perhaps worth noting, in case of any lingering doubt, that the International Court of Justice (ICJ) has implicitly affirmed the legality of the U4P Resolution. In its 2004 Wall Advisory Opinion, requested by the General Assembly in an emergency special session convened pursuant to the terms of the U4P Resolution, the ICJ did not question the validity of the U4P Resolution, but instead considered whether the preconditions described in the Resolution had been fulfilled (it found that they had). Subsequently in its 2010 Kosovo Advisory Opinion, the ICJ described the U4P Resolution as ‘provid[ing] for the General Assembly to make recommendations for collective measures to restore international peace and security in any case where there appears to be a threat to the peace, breach of the peace or act of aggression and the Security Council is unable to act because of lack of unanimity of the permanent members’.

It is occasionally argued that the General Assembly could not convene an emergency special session now, because it convened one in relation to Israel/Palestine in 1997, and that session has never been closed. There is nothing in either the Assembly’s rules of procedure or the U4P Resolution itself, however, which says that the Assembly cannot convene an emergency special session if a previous one is still ongoing.

Does the General Assembly need a referral from the Security Council in order to act on Ukraine?

The General Assembly does not need to invoke the U4P Resolution in order to consider and make recommendations regarding Russia’s aggression in Ukraine. The UN Charter empowers the Assembly to consider and make recommendations on any matter within the scope of the Charter (art 10), and – in particular – to make recommendations on matters of international peace and security (art 11(1)). The Assembly must not make recommendations on a matter ‘while the Security Council is exercising’ its functions in relation to that same matter, but as observed by the UN Legal Counsel in 1968, the Assembly has consistently interpreted this restriction to mean only that it cannot make recommendations on a matter at the same moment that the Council is also making recommendations on that same matter. In the case of Russia/Ukraine this is really a moot point, because the Security Council is not ‘exercising its functions’ at all.

The General Assembly is also prohibited from making recommendations on a matter in relation to which ‘action’ is necessary (UN Charter, art 11(2)). ‘Action’, as used here, has been interpreted by the ICJ as meaning ‘enforcement by coercive action’. Thus, many scholars have taken the view that if the Assembly wishes to recommend anything less than the use of armed force – and some even argue, anything less than the ‘obligatory execution of coercive measures’ (see, eg, here at p.567; here at pp. 473, 501; here at 134 ) – it is free to do so.

Thus, if the Assembly wishes to condemn Russia’s aggression, or recommend sanctions, or make any other recommendations in relation to Ukraine within the scope of its powers, it may do without waiting for a referral from the Security Council, and without invoking the U4P Resolution to justify its involvement. The General Assembly’s 76th session is ongoing, and additional items may be added to the agenda at any time. There is no procedural need for an ‘emergency special session’.

While a referral from the Security Council to the General Assembly pursuant to the U4P Resolution is not required, however, it could be politically advantageous. A Security Council resolution explicitly pronouncing on the failure of the Council to fulfil its responsibility for international peace and security, and referring the matter of Ukraine to the Assembly, would be a way for the Council’s concerned majority to put its dissatisfaction with the Council on record. It would be a way for the Council to do at least something, and the states voting in favour of the referring resolution could at least say they’d done all they could. A referral from the Council could also increase pressure on the Assembly to step up and assume its own residual responsibility.

What could the General Assembly do?

The most obvious thing the General Assembly could – and presumably would – do in a resolution on Ukraine would be to condemn Russia’s aggression in the strongest possible terms. This might not achieve much, but it would be a way for the Assembly to formally put on record the opinion of the international community that Russia’s invasion is, unequivocally, an illegal act of aggression. The Assembly has passed numerous resolutions in the past characterising state conduct as an act of aggression – see, eg, General Assembly resolutions on Korea, Namibia, Guinea Bissau, Angola, Israel/Iraq, and Palestine.

More substantively, the General Assembly could recommend to states that they impose unilateral sanctions. It could recommend whatever sanctions it could get majority agreement on – asset freezes and travel bans targeting senior government officials, sanctions targeting Russian financial institutions, or any of the various other measures already imposed or being considered by many western states.

The General Assembly has recommended to states that they impose unilateral sanctions on numerous occasions in the past. To cite just a few examples: in support of the struggle for self-determination and independence in the Portuguese Territories in the 1960s, the Assembly urged member states to, inter alia: break off diplomatic relations with Portugal; close their ports to Portuguese vessels; prohibit their ships from entering Portuguese ports; refuse landing and transit facilities to Portuguese Government aircraft; and boycott trade with Portugal. In relation to the self-determination struggle in Southern Rhodesia in the 1960s and 1970s, the Assembly called upon states to, inter alia, ‘sever immediately all economic and other relations’ with the ‘illegal, racist, minority regime’. In relation to South African apartheid and aggression in the 1960s-1980s, the Assembly – in terms similar to those used for the Portuguese Territories – called on states to break off diplomatic relations, close ports to South African vessels, prohibit ships from entering South African ports, boycott trade and refuse landing and passage to South African aircraft; and later to impose ‘comprehensive mandatory sanctions’ and to ‘adopt legislative and other comparable measures’ to ensure South Africa’s ‘total isolation’. In response to Israeli aggression in the 1980s, the Assembly called upon states to cease providing ‘arms and related material of all types which enable [Israel] to commit acts of aggression’; and later to ‘put an end to the flow to Israel of any military, economic, financial and technological aid, as well as of human resources, aimed at encouraging it to pursue its aggressive policies against the Arab countries and the Palestinian people.’

Making sense of the General Assembly’s position on sanctions

One issue that arguably stands in the way of the General Assembly recommending sanctions in relation to Ukraine is that since 1996, the Assembly has adopted annual resolutions asserting that ‘unilateral coercive measures’ are ‘contrary to international law’ (an assertion clearly belied by state practice). This incongruity in the Assembly practice – recommending to states that they impose unilateral sanctions in particular cases, while simultaneously describing them as illegal – is explored in a recent article by this author. Suffice to note here, that when the Assembly’s resolutions on unilateral coercive measures are closely scrutinised, and read together with related reports of the Office of the UN High Commissioner for Human Rights and Special Rapporteurs – it appears that the Assembly has not actually meant that all unilateral coercive measures are illegal (although, one could be mistaken for interpretating the resolutions as saying just that). In fact, close examination of the Assembly’s resolutions on unilateral coercive measures suggests that the Assembly has in fact taken the view that unilateral coercive measures are illegal if they: coercively encroach upon a state’s domaine reserve; fail to respect established principles of due process; negatively impact human rights; apply extra-territorially; and/or amount to a blockade. If the Assembly were to recommend sanctions in response to Russian aggression in Ukraine, it would be advised to ensure that its recommendations reflected this position. It is worth referring here to the Draft General Assembly Declaration on Unilateral Coercive Measures and the Rule of Law, prepared by the Special Rapporteur on the Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights, which stipulates conditions with which unilateral coercive measures should always comply.    

If the General Assembly were to recommend sanctions in response to Russian aggression, states would not be required to comply, and one might argue that many of the states inclined to impose sanctions are preparing to do so anyway, with or without the imprimatur of a General Assembly resolution. But in weighing the value of a General Assembly resolution, it bears recalling that – according to the International Law Commission (ILC) at least – states have an obligation to cooperate to bring to an end any serious breach of a peremptory norm of international law. The ILC has said that this obligation has ‘particular consequences for cooperation within the organs of the United Nations’; and that ‘where an international organisation has the discretion to act, the obligation to cooperate imposes a duty on the members of that international organisation to act with a view to the organisation exercising that discretion in a manner to bring to an end the breach of a peremptory norm of international law’. In the face of Russia’s aggression in Ukraine, the obligation to cooperate surely requires member states to fully exploit all tools in the General Assembly’s toolbox, that have even the faintest prospect of bringing the aggression to an end.