On 25 February 2022, one day after the Russian invasion of Ukraine, the Security Council met. After a substantive and emotional debate, the Council rejected an Albanian-American draft resolution which would deplore, in the strongest terms, Russia’s aggression as being in violation of Article 2 (4) of the Charter – the obligation to refrain from the threat or use of force against the territorial integrity or polistical independence of any state. The draft also demanded that Russia should immediately cease its use of force against Ukraine, withdraw all its military forces immediately, completely, and unconditionally, and reverse its decision to recognise the autonomous areas of Donetsk and Luhansk as independent republics. Furthermore, the draft called upon parties to abide by the Minsk agreements of 2015 following the Crimean war and to work constructively in relevant international frameworks, including in the Normandy format (France, Germany, Russia and Ukraine) and the Trilateral Contact Group (Ukraine, Russia and OSCE).

The draft resolution garnered support from 11 out of 15 members, with China, India and UAE abstaining, and Russia casting a njet by which, despite an ample majority in favour, the draft resolution could not be adopted.

However, the Security Council succeeded in adopting on 27 February 2022 Resolution 2263 (available here), by which it called for an emergency special session of the General Assembly. The voting result was the same: eleven to one, with three abstentions, but as a procedural matter this resolution was not subject to a veto by a permanent member. This resolution triggered the highly interesting but somewhat controversial Uniting for Peace Procedure, which was introduced in 1950 during the Korean crisis (UNGA Res. 377-A, 1950) (available here). It provides that in case the Security Council fails to exercise its primary responsibility for the maintenance of peace and security, because of a lack of unanimity of the permanent members, the General Assembly can take over from the Council by convening in an emergency special session and it can make appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or an act of aggression and the use of armed force.

It goes without saying that this a most interesting procedure which means nothing less than that the Council admits its inability to act within the framework of collective security and subsequently empowers the Assembly to take up an international conflict which falls within the scope of Chapter VII of the UN Charter.

The Uniting for Peace Resolution was adopted in 1950 against the background of the Korean crisis. Initially, the Soviet Union and its allies questioned the legal grounds of the Uniting for Peace procedure as being contrary to the UN Charter and condemned it as illegal and dangerous: Disuniting for War rather than Uniting for Peace. These opponents viewed the resolution as an encroachment upon the powers of the Security Council and they took the view that various Charter articles (particularly, 11, 12, 14 and 24) prevent the Assembly from recommending action as foreseen under Chapter VII under the auspices of the Council. In contrast, the supporters view Uniting for Peace as an authentic interpretation of the UN Charter, namely interpretation in such a way as to allow for effective achievement of its aims (effet utile).

Quite ironically, both in 1956 in respect of the Suez crisis and in 1967 with respect to the Six Day Arab-Israeli War, the USSR supported the invocation and employment of the Uniting for Peace procedure. One could argue that Russia is hence prevented from questioning the legality of Uniting for Peace by virtue of acquiescence or estoppel.

Practice under this innovative legal instrument is rather scarce. Since 1950, only eleven emergency special sessions of the Assembly have been convened, including the one on Ukraine which was firstly convened in March 2014 in connection with the situation of Crimea. It is notable that, so far, the General Assembly - rather prudently in my view - never used its facility to recommend military enforcement action.

The Resolution which the Assembly adopted on 2 March 2022 is along the lines of the rejected Security Council resolution. It builds on the Charter articles on the obligation of peaceful settlement in good faith, the prohibition to use force ('no territorial acquisition resulting from the threat or use of force shall be recognised as legal'), the definition of aggression, the Helsinki Final Act, the obligation to adhere to international humanitarian law and the need for urgent action “to save this generation from the scourge of war”. Furthermore, the Assembly also condemns Russia’s decision to increase the readiness of its nuclear forces. The Resolution (UN doc. A/RES/ES-11/1, 2 March 2022, available here) got 141 votes in favour, only 5 against (Belarus, Eritrea, North Korea, Russia, Syria), with 35 abstentions and 12 states not participating in the vote.

It is important to consolidate as well as solidify this majority against the aggressive acts of Russia. We should not jeopardise this impressive majority by offensive unilateral actions, however necessary and perhaps even proportional they may be such as a unilateral no fly zone.

There can be little doubt that Russia’s massive military intervention in Ukraine is squarely contrary to the most fundamental principles of international law, as aptly stated by the two oldest and most prominent learned global societies of international law, namely the Institut de Droit international (available here) and the International Law Association (available here).

In the long run, the international community will have to work on intensive repair work of the severely damaged multilateral order as well as the rehabilitation of Russia in due course. Fundamental issues to discuss after the war, if not dramatically once again prompted by this war, include: the composition of the Council; the modalities of the veto power; the parallel responsibility of the UNGA to that of the Security Council; the relationship with regional arrangements such as the OSCE and NATO; the notable weak monitoring and enforcement mechanisms of peace agreements such as the Minsk agreements; and the interaction between the political organs and the International Court of Justice as the principal judicial organ of the United Nations.

Therefore, the topic of my brief address today is: Uniting for Peace in Response to Disuniting for War.

Nico Schrijver, professor emeritus Public International Law, Leiden University, and Dutch Council of State.