(Ця стаття також доступна українською мовою тут.)

Russia’s invasion of Ukraine (with Belarus’s complicity) has violated one of the core principles of the United Nations Charter: the prohibition of the use of force against the territorial integrity of another member State (Article 2(4)). The invasion has been almost universally condemned by governments of the world, as well as by the UN Secretary-General.

With this strength and unity of support, what legally available options does the United Nations have to address the situation? What options would be futile or not worth the diplomatic effort?

In this article, I outline several opportunities – including the UN General Assembly helping establish a war crimes tribunal for the crime of aggression, which could complement current efforts in the Hague that can’t reach that offense. And I outline several rabbit holes – including challenges to Russia’s seat at the United Nations.

Background: The current situation at the UN

The Security Council had previously met on the threats to peace posed by Russian military maneuvers and statements, uncomfortably with Russia presiding for the month of February according to the monthly rotation rule for presidents. On Friday night, the 25th, Russia used its veto to prevent a draft resolution from being adopted. The draft resolution, which obtained 11 votes in favor with 3 abstentions (China, India, United Arab Emirates), among other things, deplored the Russian aggression against Ukraine and decided that Moscow shall immediately cease its use of force against Ukraine.

As a consequence of that veto, members invoked the “Uniting for Peace” resolution of 1950 by which the Council, on a procedural vote not subject to the veto, requested that the General Assembly meet in emergency special session to consider the issue, because the Security Council had failed “to exercise its primary responsibility for the maintenance of international peace and security, because of lack of unanimity of the permanent members” (using the words of the Uniting for Peace resolution) in a case where there appeared to be a threat to the peace, breach of the peace or act of aggression.

The resolution (S/RES/2623(2022)) was adopted on Sunday, Feb. 27, 2022 by a vote of 11 to 1 with 3 abstentions (China, India, United Arab Emirates), and the General Assembly met the following day with a view to making appropriate recommendations to Members for collective measures.* As of this writing, it has not yet concluded.

Even as the process plays out in the General Assembly under the Uniting for Peace process, it may be useful to examine a few options which have been put forward and note which ones are “rabbit holes” to be avoided and which ones offer some feasibility of meaningful action on the part of the Organization.

Viable option no. 1: General Assembly Actions Under “Uniting for Peace”

In 1950, the United States and its allies in the Korean War devised a way to get around vetoes that were being cast by the USSR in the Security Council, thus blocking Council action. The General Assembly adopted resolution 377 of 1950 (“Uniting for Peace” referred to earlier) spelling out that the Assembly could act when the Council was prevented from taking decisions in certain circumstances because of a veto. Besides a heavy procedure specifying a way to bring the General Assembly back into session (no longer needed for that purpose as the body is now in constant session), the resolution provides a clear but carefully crafted circumstance under which the General Assembly can act that fits perfectly with the current situation.

The General Assembly needs to find that there “appears to be” a threat to the peace, breach of the peace or an act of aggression. Hard to argue the present situation does not constitute a breach of the peace and an act of aggression. In such a case, according to “Uniting for Peace,” the General Assembly can recommend to members “collective measures” which may even include the use of armed force when necessary but only in the case of breach of the peace or act of aggression, not a threat to the peace.

By virtue of the Security Council resolution adopted on Feb. 27, “Uniting for Peace” has been invoked and the General Assembly is meeting in emergency special session under that umbrella.

As far as the use of force is concerned, the General Assembly cannot replace the Security Council in deciding on binding enforcement or coercive measures. And it cannot recommend that States violate Article 2(4) of the Charter. The most it can do concerning use of force is recommend that States come to the aid and assistance of a State which has been the victim of aggression or a breach of the peace, as in the case of Korea. In other words, recommending that States engage in “collective self- defense,” which they can do in any case for Ukraine even without such a resolution.

As to non-use of force measures, the Assembly can recommend all sorts of actions. That has happened in the past, sometimes under the Uniting for Peace format and sometimes not. Recommendations are exactly that and no more—States are not required to take the recommended measures but they may provide a certain degree of moral or “community” legitimacy that unilateral action does not have. In the past, the General Assembly has recommended that States take non-use of force measures such as: severance of diplomatic relations; trade embargoes; economic sanctions; and interruption of means of communication.

The General Assembly also has important legally available options on “accountability” front. The General Assembly has recommended the establishment of a criminal tribunal on the basis of an agreement negotiated by the Secretary-General and the government concerned (the Extraordinary Chambers in the Courts of Cambodia) and approved by the General Assembly (resolution 57/228 of May 13, 2003). The Assembly has also established an “International, Impartial and Independent Mechanism” (IIIM, resolution 71/248 of 21 December 2016) to assist in the investigation and prosecution of persons responsible for the most serious crimes under international law committed in Syria.

There are thus tools that the General Assembly can utilize to facilitate accountability for the persons responsible for international crimes during the ongoing Russian invasion of Ukraine. This action would be legally on solid ground if requested by the Ukrainian Government. It would also provide unique advantages complementing other current tracks being pursued by Ukraine and UN member states. Ukraine has already made a declaration that provides the International Criminal Court (ICC) jurisdiction over war crimes and crimes against humanity from Feb. 2014 onward. On Sunday, Ukraine initiated proceedings against Russia in the International Court of Justice under the Genocide Convention.

While the ICC’s Office of the Prosecutor may investigate “atrocity crimes” within the jurisdiction of the Court occurring on the territory of Ukraine, it cannot investigate the crime of aggression under the amended Rome Statute given the requirements specified in that amendment. What might be of interest to the Ukraine Government is to establish some form of hybrid investigative mechanism or criminal tribunal which could deal specifically with the crime of aggression as this case presents a prima facie case for investigation and possible prosecution of that crime. The action would be solidly based were the General Assembly to make it clear in its forthcoming resolution under Uniting for Peace that it is the view of the vast majority of Member States that the invasion of Ukraine by Russia constitutes an act of aggression.

Such a hybrid tribunal would have two additional attributes. First, as an international tribunal it is clearly able to pierce the veil of head of state immunity. Second, in one respect, it may more easily draw US support compared to the ICC. The United States has previously registered concerns about the Court exercising jurisdiction over non-state parties (e.g., the United States in Afghanistan).

What is not known at this writing is what decisions will be taken by the UN Human Rights Council when it meets on Thursday, March 3 upon the request of Ukraine for an “urgent debate.” Hopefully coordination takes place within and between delegations so that actions taken in the Human Rights Council do not overlap or interfere with those to be taken by the General Assembly.

Besides making findings, condemning and demanding action by Russia, the Assembly if it so wishes is on solid legal ground to make concrete and meaningful recommendations to Member States that they take certain actions or that accountability mechanisms be explored with a view to adoption.

Viable option no. 2: The Secretary-General’s good offices

Without addressing any issues of the build up to the invasion and actions which were or might have been taken prior to that point, the Secretary-General can still offer his good offices to try to mediate or provide a platform for discussion. Good offices or Secretary-General initiatives on his own authority normally require that both parties request or at least consent to any such initiatives. That may be difficult given the Secretary-General’s statement that Russian actions violated the territorial integrity and sovereignty of Ukraine and were inconsistent with the principles of the Charter. There can hardly be any argument against that clear and unequivocal statement of law and principle. But the Russians may have difficulty agreeing to the Secretary-General serving as a “neutral” interlocutor, at least for the moment. In fact, in a statement made in the Security Council on Feb. 23, the Russian Permanent Representative unsurprisingly objected to the Secretary-General’s statement saying the latter had chosen to follow the West.

While it should be remembered that this option of deploying the Secretary-General’s good offices remains theoretically open, it will probably require a change in political circumstances to become viable.

Rabbit hole no.1: Expulsion or Suspension

Russia could have its rights and privileges of membership suspended (Article 5 of the UN Charter) or it could be expelled from the Organization entirely (Article 6), under the conditions specified in those provisions of the Charter, on a decision of the General Assembly. But both require a recommendation to that effect from the Security Council which would be subject to the veto. Thus, no need to waste our time — with one caveat.

Caveat: If the goal is to make a political statement by showing – if possible – member State support for suspending or expelling Russia and force the Russians to veto the measure, then so be it. But that’s the most one can get out of it.

Rabbit hole no. 2: Raising points of order re Security Council procedure (to prevent Russia from presiding in the Security Council or to prevent it from voting in the Council)

A few members of the Security Council chastised the Russians for presiding over the Council when it is a party to the dispute/conflict, citing rule 20 of the Security Council’s provisional rules of procedure. This issue is largely moot now due to the turnover of the presidency on March 1. It is worth discussing, however, as some may still invoke what happened without seeing the rabbit hole.

Rule 20 basically says that if the President deems that it is a conflict to preside over a given issue, he or she can leave the chair to the “next in line” to preside over that issue. But it is totally “self-policing” and not subject to Council oversight unless a point of order is made to force the President to leave the chair; but even if that succeeds, as a member, he or she can still vote. Another procedural fault noted in the Security Council debate was that the Charter provides that in decisions under a specific Chapter and Article of the Charter, a P5 party to a dispute “shall abstain from voting.” This entails deciding implicitly or explicitly that there is a dispute and that a P5 is a party to it. So if a P5 does not agree or voluntarily abstain, is it possible for the Council to decide that a P5 could not vote? Is that a procedural or substantive issue subject to a veto itself? Both these procedural challenges would have provoked chaos and confusion, which may sometimes be a valid policy choice, but if the goal is to get to a decision, vetoed or not, this only adds to delay and consternation. Besides, it is doubtful the P5 would move to enforce such an outcome against another P5 —because they may be on the “receiving end” next time they intend to vote on an issue others believe is a dispute to which they are a party.

Rabbit hole no. 3: Declare Russia is not a bona fide member of the Organization, there having been no decision admitting it as a member after the demise of the USSR

This rabbit hole was introduced by the stirring and “Adlai Stevenson”-like statement of the Ukrainian Permanent Representative in the Security Council on the evening of Feb. 23. And repeated by the Ukrainian representative yesterday in the first meeting of the General Assembly’s emergency special session. In the latter case, he said the “while the Russian Federation has done everything possible to legitimize its presence at the United Nations, its membership is not legitimate, as the General Assembly never voted on its admission to the Organization following the fall of the Soviet Union in December 1991” (GA/12404).

As this argument has gained some traction by commentators and even some academics, it is worth spelling out why the argument does not hold water. It runs straight into what lawyers call a “laches” or “estoppel” problem or what lay people might call a “Speak now or forever hold your peace” problem.

The issue, for the uninitiated, is how can Russia be a member of the United Nations after the former USSR dissolved in December 1991 and other bits and pieces of the former Soviet Union had to apply and be admitted to membership (though not Ukraine). Where are the resolutions of the UN admitting Russia to membership? How was it allowed to “sneak” into the Organization without following proper admission procedures or even a resolution deciding it could continue the seat of the former USSR?

Note that of course the same might be said of Ukraine. There are no resolutions or decisions admitting the newly independent Ukraine in 1991 when “Ukraine” continued the membership of the former “Ukrainian Soviet Socialist Republic,” a founding member of the Organization in 1945 for reasons not addressed here.

In a nutshell, in 1991 there was no “sneaking” around. The Russians made a claim; it was distributed to the entire membership and there were opportunities for any Member to speak up, question, object, comment on, make proposals or more. It is true that there is no “positive” decision taken on the issue, but there was no “push back” or challenge either. With no objection, the claim stood. But it was a major subject of discussion behind closed doors and in consultations. No Government thought it advisable to openly challenge or question the claim or even discuss it publicly. What’s more, Ukraine at the time supported the Russian’s holding the UN Security Council seat.

I was a Principal Legal Officer in the Office of the Legal Counsel at that time.

In 1991, it was the Russia of Boris Yeltsin not Vladmir Putin

The main factor that influenced how the issue was handled in the UN was the basic policy decision of the other P4 (China, France, the United Kingdom and the United States), including first and foremost the US government, which was that it was in everyone’s interest that the USSR be dissolved peacefully and orderly, which could be accomplished if the other republics agreed among themselves on various matters including the former USSR seat and the veto. The republics of the former USSR, including Ukraine, agreed to Russia maintaining the seat of the USSR including in the Security Council. If they agreed, who would object? On what grounds would anyone have objected to Russia continuing the seat of the USSR in 1991? Maybe to get rid of a veto? If so, it was up to a Member to speak up and make the case.

Members were notified that Russia claimed it was not a “successor State” but a “continuing State” with the support of the former republics of the USSR, and there was no opposition

On Christmas Eve 1991 the Soviet Permanent Representative Yuli Vorontsov came to the UN Secretariat with a box in his hand with a new flag of something called the “Russian Federation” and a letter to the Secretary-General signed by Boris Yeltsin, “President Russian Soviet Federative Socialist Republic” (RSFSR). It said “ the membership of the Union of Soviet Socialist Republics in the United Nations, including the Security Council and all other organs and organizations of the United Nations system, is being continued by the Russian Federation (RSFSR), with the support of the countries of the Commonwealth of Independent States, by the Russian Federation.” Note it says “continued” not succession. In the law of succession, he was claiming that parts of the territory of his country had separated, leaving behind the rump which continued the international legal personality of the former larger State, whose name happened to change as well. Same country, just smaller, different borders and a new name and flag. The Russian Federation was the “continuing State” whereas all the bits that spun off were “successor States”—except for, ironically, Ukraine and Belarus which had been deemed as founding members of the Organization in 1945 for reasons not dealt with here. The letter also asked the Secretariat to change the name of the country from “the Union of Soviet Socialist Republics” to “Russian Federation” wherever it appeared.

For our purposes, the key phrase is “with the support” of the Commonwealth of Independent States. Who were they? Eleven former ex-Soviet Republics, excluding the Baltics but including Ukraine, signed various agreements at Alma Ata on Dec. 21 1991, including one which specified:

“The States of the Commonwealth support Russia’s continuance of the membership of the Union of Soviet Socialist Republics in the United Nations, including permanent membership of the Security Council, and other international organizations.”

They also expressed satisfaction that Belarus and Ukraine would continue to participate in the UN as sovereign independent States. So the UN in fact had 3 continuing members: Belarus, Russia and Ukraine.

It is not for any Secretary-General to decide what is a State and what isn’t, what continues a State and what does not. That is for the members of the club itself – UN Member States. Secretary-General Pérez de Cuéllar, who was ending his term in a few days, sent a note verbale to all Members and other UN organizations circulating the Yeltsin letter. And he waited for any formal reaction. There was none. Without any objections, questions, requests that anything be done such as convening a body or inscribing an item on an agenda, or the like, the Secretary-General would follow the request and change the nameplate from USSR to Russian Federation, change the alphabetical listing of members and replace the old flag with the new, including in any bodies that the USSR had been a member of such as the Security Council. Any member can change its name and flag anytime it wants.

As mentioned, I was a Principal Legal Officer in the Office of the Legal Counsel at that time and do not have any recollection of any legal opinion offered by that Office opining on the validity of the Russian claim, nor I suspect would there have been one along those lines. Advice was probably sought on what the implications would be of such a claim. As any legal opinion, it would have provided, confidentially, policy makers the view of Legal Office on the applicable international law on succession of States to membership, reviewed relevant past practice and decisions of the organization (such as India/Pakistan, Pakistan/Bangladesh and others). I suspect it would have concluded that it was a matter for the membership to react to the Russian claim as they deemed fit.

The most relevant and definitive case involved Pakistan separating from “colonial” India in 1947. In an opinion adopted by the UN member States in its Legal Committee—with no Secretariat involvement—the Legal Committee concluded that as a general rule it was in conformity with legal principles to presume that a Member does not cease to be a Member simply because its constitution or its frontiers have changed. “The extinction of the State as a legal personality recognized in the international order must be shown before its rights and obligations can be considered thereby to have ceased to exist” (A/C.1/212, Oct. 11, 1947). That “general rule” adopted by member governments had never been challenged and had presumably guided later continuity/succession cases; it was more than a mere precedent.

Rumors were circulating at the time that some members were considering the following:

  1. Convening a special meeting of the General Assembly: The matter was too important to leave to the Russians alone or even the P5 as a group, it was argued; it deserved a broader discussion in the General Assembly plenary among the entire membership as it affected a major piece of the structure of the Organization – permanent membership in the Security Council and the veto. And it was of course an international law question of major importance. The P5 were apparently not amused and this idea was vigorously opposed behind the scenes. While it was perfectly possible to do so, no Member State nor the-then President of the General Assembly made any formal proposal to have the matter discussed in the General Assembly .
  2. Requesting an advisory opinion of the ICJ: The matter raised a classical question of public international law on which an advisory opinion of the International Court of Justice should be sought by the General Assembly. This did not last long either (maybe 2 seconds) when the practical question arose what do you do with the decision-making process in the Security Council during the time waiting for an ICJ opinion? How is the Security Council supposed to function not knowing if one of its members – and a purported permanent member at that – can vote or not?

Members said nothing at the first meetings at which “the change” was reflected.

Although no objections or questions about the claim came in writing, the first time UN bodies met after “the name change” would offer an opportunity to raise the matter in a meeting. Any delegate could raise a point of order from the floor asking “What is that sign ‘Russian Federation’ and who is sitting behind it?” — and thus open up the issue for debate and discussion. The first meetings scheduled after the “change” were not in the General Assembly but rather in the Council. On Dec. 31, the Security Council met for the first time after the “change.” But it was the last day of the month which had heretofore been presided over that month by Ambassador Vorontsov as the USSR representative. On the 31st, however, he presided behind the “Russian Federation” nameplate. The meeting lasted 5 minutes at which a resolution on Western Sahara was adopted unanimously. The President gave a statement at the end thanking the retiring members of the Council. Not one word came from him or any member of the Council about “the change.” The members of the Council who could have mentioned it were Austria, Belgium, China, Cote d’Ivoire, Cuba, Ecuador, France, India, Romania, the United Kingdom, the United States, Yemen, Zaire and Zimbabwe. They all knew and could see there was a change but no words were spoken on the matter. There must have been a clear understanding among members behind the scenes that the Soviet representative would “see out” his presidency for the month as the Russian representative, regardless of “skipping” the alphabetical rotation rule for that one day (S/PV.3025).

A newly constituted Security Council met on Jan. 6, 1992 under the UK Presidency but with 5 new members: Cape Verde, Hungary, Japan, Morocco, and Venezuela. None of them raised the question of “the change” (S/PV.3026).

Finally, the first time the general membership had an opportunity to raise the question in a plenary meeting of the General Assembly was on Feb. 4, 1992 when the meeting was presided over, ironically, by the Permanent Representative of Ukraine, acting as Vice-President. No mention was made of “the change” by him or anyone else.

In conclusion, it is not worth diverting attention from the main goal of how the United Nations should react to this aggression by returning to the past. No one, including Ukraine, objected then (indeed, Ukraine affirmatively supported it in a signed agreement) — and it is 30 years too late to raise it now.

The present moment of crisis demands the most effective use of diplomatic resources. The legally available options I discussed at the start are among them.


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* For proposals before the General Assembly that refer to the Uniting for Peace resolution, aggression or breaches of the peace, most likely the required majority for adoption will be 2/3rds of those present and voting (those voting “yes“ and “no”—abstentions not counted).  This is because under Article 18(2) of the Charter, decisions on “important questions” are made by that majority, “recommendations with respect to the maintenance of peace and security” being specified as one such question.


Photo credit: United Nations Secretary General António Guterres speaks during a special session of the General Assembly at the United Nations headquarters on Feb. 28, 2022 (Michael M. Santiago/Getty Images)