Posted 01/03/2022 by Dr Shannon Maree Torrens
In the escalating situation due to Russia’s invasion of Ukraine, the international community is turning to the United Nations (UN) to respond to the crisis. Key violations of international law, can be responded to through the UN which was established in 1945 in the aftermath of the Second World War.
This Flagpost will review the role of the UN Security Council and the UN General Assembly (UNGA) in responding to violations of international law.
UN Security Council Powers
The UN Security Council can call on states to settle their disputes peacefully pursuant to Chapter VI, Article 33(2) of the UN Charter. In the event of escalating tensions, the UN Security Council can authorise interventions under Chapter VII of the UN Charter. Article 42 of the UN Charter enables the UN Security Council to authorise the use of force ‘by air, sea, or land forces as may be necessary to maintain or restore international peace and security’ if non-military measures ‘would be inadequate or have proved to be inadequate’. The UN does not have its own armed forces and therefore the Security Council can authorise the use of force by a peacekeeping operation, multinational forces, or regional organisations (Articles 43-47 of the UN Charter).
To authorise an intervention under Chapter VII, there must be ‘an affirmative vote of nine members [of the Security Council] including the concurring votes of the permanent members’ (Article 27(3) of the UN Charter). Russia is a permanent member of the UN Security Council and therefore has the power to block certain resolutions of the UN Security Council through the veto power as was evidenced this past week. Russia also currently holds the Presidency of the Council. The use of the UN Security Council veto can impede international responses on critical issues, for example in 2014 Russia and China vetoed a UN Security Council resolution that would have referred the situation in Syria to the International Criminal Court.
Pursuant to Article 27(3), as a party to a dispute, Russia has an obligation to abstain from decisions with respect to Chapter VI (Pacific Settlement of Disputes), and under paragraph 3 of Article 52 (Regional Arrangements). This restriction however does not affect Chapter VII decisions.
It should be noted that even if Russia vetoed or abstained from voting on a UN Security Council resolution, other permanent members of the Security Council could still veto the resolution. China, France, Russia, the UK, and the US are all permanent members of the Security Council. Note that while Australia is a member of the United Nations it does not currently hold a seat on the UN Security Council.
Draft Ukraine UNSC resolution
Pursuant to Article 24 of the UN Charter, the UN Security Council has ‘primary responsibility for the maintenance of international peace and security’. The UN Security Council has therefore met three times in the past week at emergency sessions to respond to the situation in Ukraine.
At the first emergency meeting of the UN Security Council on the night of Monday 21 February delegates rejected Russia’s recognition of Donetsk and Luhansk. The US said that Russia’s ‘action defies the Charter of the United Nations and international law’. The UK similarly said that Russia’s ‘actions demonstrate contempt for international law’. Germany said that it would ‘take firm and adequate measures in response to Moscow’s breach of international law’.
At the second meeting on Wednesday 23 February UN Secretary-General António Guterres who attended the meeting as part of his role as Secretary-General (Article 98 of the UN Charter), urged Russia to: ‘Give peace a chance. Too many people have died.’ While the meeting was taking place Russia announced its ‘special military operation’ into Ukraine.
On Friday 25 February at the third emergency session of the week, Russia vetoed a draft UN Security Council resolution on ending Russia’s military offensive in Ukraine. 11 of the 15 members of the Security Council voted in favour of the text of the resolution. China, India, and the United Arab Emirates abstained.
The draft was submitted by Albania and the United States and deplored in the strongest terms Russia’s aggression as being a violation of article 2(4) of the UN Charter, which prohibits the threat or use of force against another state. The draft outlined that Russia should immediately cease its use of force against Ukraine and withdraw its military.
The draft also deplored Russia’s recognition of Donetsk and Luhansk in violation of the sovereignty and territorial integrity of Ukraine. The parties were also called upon to abide by the Minsk agreements and to work within international frameworks. The parties were called upon to facilitate humanitarian assistance and the Council urged continued efforts by the UN Secretary General, UN member states and other organisations in de-escalating the situation as well as UN efforts in providing humanitarian assistance.
UN General Assembly
This week a dedicated UN General Assembly session on the Ukraine situation was held on Wednesday 23 February. The 193 members of the UN including both Russia and Ukraine are also members of the UN General Assembly, however in this forum no states have a veto.
UN Secretary General António-Guterres told the General Assembly that ‘[i]t is time for restraint, reason and de-escalation’. He called for a ceasefire, dialogue, and negotiations. He then called on all parties to make use of Article 33 of the UN Charter which focuses on pacific settlement of disputes through methods such as negotiation, mediation, and conciliation.
General Assembly President Abdulla Shahid similarly urged states to ‘deploy the tools that we have to resolve disputes … give priority to diplomacy, good offices and mediation … [and] give peace all the chance it deserves’.
Guterres also highlighted that the actions of Russia were inconsistent with the Declaration on Principles of International Law Concerning Friendly Relations which was adopted by the UN General Assembly on 24 October 1970. This Declaration outlines that ‘States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State’ and that ‘[e]very State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States’.
Emergency Special Session
Ukraine requested an ‘emergency special session’ of the General Assembly pursuant to General Assembly Resolution 377(V) of 3 November 1950. Entitled ‘Uniting for Peace’ this resolution states that when the UN Security Council fails to act to maintain international peace and security due to a lack of consensus among the permanent 5 members, the General Assembly shall consider the matter immediately and can issue recommendations for collective measures including armed force to maintain or restore international peace and security. An emergency special session is distinct from other sessions of the UNGA as it is intended as a measure of urgent action. Further, the UN Security Council is normally tasked with maintaining international peace and security but when the Council cannot act due to the veto of a permanent member, the General Assembly can step in through this mechanism. Resolutions by the General Assembly are not binding on states, but rather a recommendation carrying political weight.
The UN Security Council therefore voted on Sunday to call for an emergency special session of the UN General Assembly. The UN Security Council vote was a procedural one so none of the permanent five members could veto the resolution, although Russia voted against it. Eleven of the fifteen UN Security Council members voted in favour of the resolution, Russia opposed, and the UAE, China and India abstained. Only nine votes were required.
Emergency special sessions of the General Assembly are rare and there have only been ten in the history of the United Nations. This will be the 11th. The session began on Monday 28 February in New York with countries addressing the General Assembly and condemning Russia’s actions. The General Assembly will likely vote on a draft resolution on Ukraine on Wednesday 2 March.