One year ago today, the United Nations General Assembly passed Resolution 76/262, committing that every time a veto is cast in the United Nations Security Council, the General Assembly will meet within 10 days and “hold a debate on the situation as to which the veto was cast.” The initiative was born out of growing frustration over States persistently using vetos in the Security Council, including to block action aimed at halting or averting the commission of atrocity crimes, and addressing their humanitarian consequences. In 2021 and early 2022, that frustration was brought to a head by, among other things, the Security Council’s inability to respond to Russia’s aggression in Ukraine, and blockages that continue to impede the provision of humanitarian assistance in Syria.
Delegates who spoke in support of Resolution 76/262 said they hoped it would accomplish two goals.
First, the Resolution’s supporters hoped the initiative would make the Security Council more accountable to the General Assembly. Liechtenstein’s representative, introducing the Resolution, said that “all Member States have … agreed that the Council acts on their behalf,” and that “therefore, membership, as a whole, should be given a voice when the Council is unable to act.”
Second, it was hoped the initiative would prompt the General Assembly itself to engage more robustly in matters of international peace and security when the Security Council failed. Qatar’s representative, for example, described the Resolution as “promot[ing] the Assembly’s role in accordance with its mandate, which gives it powers and authority in matters related to the maintenance of peace and security,” and hoped the Resolution would strengthen the U.N. system “in cases where it cannot stand idly by and should respond effectively.”
This article reflects on the success of the veto initiative, in its first year, measured against the second – and more substantive – of these objectives. It finds that the initiative has prompted more robust and meaningful General Assembly engagement in one of the three occasions in which it has thus far been used.
Has the Veto Initiative Strengthened the General Assembly’s Engagement in Matters of International Peace and Security?
The veto initiative has thus far prompted the General Assembly to convene special sessions in relation to three vetoed resolutions: one on the Democratic Republic of North Korea, vetoed by Russia and China; and one on each of Syria and Ukraine, both vetoed by Russia. The vetoed Resolution on North Korea would have tightened Security Council sanctions; the Resolution on Syria would have extended the provision of cross-border humanitarian aid from Turkey to Syria until January 2022, with an automatic extension until mid-2023; and the Resolution on Ukraine would have condemned the “so-called referenda” that preceded Russia’s proclaimed annexation of parts of Ukraine.
The Security Council’s Veto of Resolutions on North Korea and Syria
In the special sessions following the vetoed Resolutions on North Korea and Syria, States used the opportunity to call on Russia and China to reconsider their use of the veto, and to lament the use of the veto in general, and to emphasize the responsibilities of the Security Council. The representative of Fiji, for example, speaking on behalf of the Pacific Islands Forum, described the right of veto as “outdated and obstructionist”; Ireland’s representative called for the Security Council to “hear and heed” the voices of the General Assembly’s delegates; and Denmark’s representative called for broader commitment to the French/Mexico veto initiative (according to which States voluntarily commit not to exercise their right of veto to block action on mass atrocities). In neither of these sessions, however, did a State propose anything that the General Assembly should actually do. Neither the North Korea nor Syria special sessions resulted in a General Assembly resolution.
In both these situations, there were things the General Assembly could have done. In relation to North Korea, it could – among other things – have passed a resolution recommending to States that they unilaterally strengthen sanctions on Pyongyang. The General Assembly has recommended to States that they impose sanctions in other contexts in the past, for example in relation to Israel in the 1980s, South Africa (1960s-1980s) and – going back further – Southern Rhodesia and the Portuguese Territories in the 1960s-1970s. Regarding Syria, the General Assembly could have passed a Resolution affirming the principle recognized by the International Court of Justice in its Nicaragua Advisory Opinion (para. 242), that exclusively humanitarian assistance is not an unlawful intervention in a State’s internal affairs. The General Assembly is empowered by the U.N. Charter to contribute to the progressive development and codification of international law, and it has previously passed resolutions affirming principles of international law – see, for example, early Resolutions on the crime of genocide and on the Nuremberg principles. The General Assembly could have also reaffirmed (in terms similar to its Resolution of December 2021) that humanitarian needs in northern Syria could not be met from within Syria, and emphasized the imperative for humanitarian assistance to be provided through all available access routes. It could have further bolstered the legal case for States and U.N. agencies to provide cross-border humanitarian assistance without Security Council authorization, by describing the situation as one of “necessity” – recognized in international law as a circumstance “precluding the wrongfulness” of the breach of an international legal obligation (see discussion here).
The Security Council’s Veto of a Resolution on Ukraine
The General Assembly’s special session following the vetoed Resolution on Ukraine was of a wholly different character than those following the vetoed Resolutions on North Korea and Syria. This time, the debate focused squarely on the General Assembly itself. The representative of Malta, for example, emphasized the General Assembly’s “duty to react to violations of international law,” and Latvia’s representative spoke similarly of the General Assembly’s “responsibility to uphold the principles of the United Nations Charter.” On Oct. 12 2022, the General Assembly passed a Resolution declaring the so-called referenda in parts of Ukraine to be invalid, and calling on States not to recognize any alteration of the status of those regions. The following month – still in the same session – the General Assembly passed another Resolution, this time asserting that Russia should make reparation for injury caused by its “internationally wrongful acts,” recognizing the need for an “international mechanism for reparation” and recommending that States create an “international register of damage.”
To summarize: a review of the General Assembly’s special sessions – and resulting action – following the Security Council veto on Ukraine, as compared to those on North Korea and Syria, reveals that these sessions have been used in very different ways. The sessions on North Korea and Syria were used to critique the veto in general, and the veto-wielding States in particular. The session on Ukraine, conversely, was used to pass robust resolutions, affirming important principles of international law and making concrete recommendations to States. In other words, if the General Assembly’s veto initiative is assessed against whether it has prompted more robust General Assembly engagement in matters of international peace and security when the Security Council has failed, the finding – admittedly based on a limited sample of just three occasions on which the new arrangement has been used thus far – would seem to be that it has succeeded on one occasion out of three.
What Makes the General Assembly’s Response to North Korea and Syria Different from its Approach to Ukraine?
There is a critical factor underpinning the difference between the General Assembly’s response to the vetoes on North Korea and Syria, and that of Ukraine. In February 2022, six months prior to the vetoed Resolution on Ukraine, the Security Council passed a procedural Resolution (not subject to the veto), stating that the “lack of unanimity of its permanent members … [had] prevented it from exercising its primary responsibility for the maintenance of international peace and security,” and calling for an emergency special session of the General Assembly. In using this language (“lack of unanimity, and failure to exercise responsibility for international peace and security”) the Council was implicitly invoking the General Assembly’s 1950 Uniting for Peace (U4P) Resolution. That Resolution established that if the Security Council were unable to exercise its responsibility for international peace and security due to lack of unanimity among its permanent members – the United States, United Kingdom, France, China, and Russia – then the Council could call for an emergency special session of the General Assembly, and the General Assembly would then consider the matter and make recommendations (see here for a list of the situations in relation to which the U4P Resolution has been invoked previously).
Following the Security Council’s procedural Resolution, the General Assembly convened an emergency special session on Feb. 28, 2022. That session was still ongoing (albeit adjourned) when Russia vetoed the draft Resolution on Ukraine in the Council several months later, on Sept. 30. The General Assembly then “resumed” its emergency special session the following month, on Oct. 10. The Assembly described the session as “mandated” after the Council failed to adopt a resolution on Russia’s so-called referenda in Ukraine – in other words, mandated by the requirement in Resolution 76/262 that the General Assembly convene in special session within 10 days of a veto in the Council – however, it also noted that the session was “part of [the General Assembly’s] ongoing emergency special session on Ukraine.” Thus, while re-opened pursuant to Resolution 76/262, the session took place in the broader context of a referral from the Council pursuant to the U4P procedure.
The reason this is important is that it suggests that thus far (admittedly, drawing from only three post-veto special sessions), the veto initiative special sessions and the U4P procedure special session have been used in very different ways. The former have been used to critique the veto, while the latter has been seemingly underpinned by an understanding that the Security Council has temporarily passed its responsibility to the General Assembly, and that the task for the General Assembly is to consider what it can usefully do.
The distinction between the character of the special sessions convened pursuant to the veto initiative, and that of the special session convened within the broader context of the U4P procedure, is somewhat surprising given that most legal scholars now accept that the U4P Resolution is not legally required for the General Assembly to act on matters of international peace and security (see here, p.15). What this suggests is that despite this appreciation of the General Assembly’s competence to act with or without a Security Council referral, the U4P process still serves a political purpose.
There is, thus, something of a disconnect. States have accepted that the General Assembly is competent to act on matters of international peace and security irrespective of any referral from the Security Council, and that it sometimes must do so, and have developed a procedure – the veto initiative – to help ensure it does. But seemingly States have not yet caught up to the idea that the veto initiative special sessions can and should be used in just the same way as the General Assembly’s emergency special sessions, despite not having been called for by the Security Council.
The Veto Threat
In assessing the effectiveness of the veto initiative in prompting more robust responses by the General Assembly to Security Council failure, one further point bears noting, and that is what happens when a veto is threatened – or just assumed – but not cast.
Earlier this month, more than 100 civilians were killed in airstrikes by Myanmar’s military junta. The U.K. circulated a draft Security Council press statement condemning the attack and calling for accountability. Security Council statements are not “decisions” of the Council, and – unlike resolutions – are not legally binding on States, however they still require the agreement of all Security Council members. Presumably the U.K. would have liked to see a Security Council resolution condemning the attack, but opted for a statement instead, knowing that a resolution would never pass – and then in the end even a statement proved too much. Had the U.K. circulated a draft resolution, forcing vetos by Russia and China, the General Assembly would have been required – pursuant to Resolution 76/262 – to meet and debate the situation. Without a resolution being put to a vote, there can be no veto, and thus the veto initiative can provide no assistance. Thus, States who are interested in prompting the General Assembly to more robustly engage in situations in relation to which the Security Council is blocked must play their part by putting resolutions forward to vote, even knowing they will fail. And then when a veto is cast and the General Assembly convenes in special session, States should ensure those sessions are used to consider what the General Assembly can most usefully do, not just to lament the existence of the veto.