José Alvarez: Ukraine’s Request for UN Peacekeepers Does Not Require Security Council (Russian) Approval

On Monday, Ukraine requested the United Nations to send peacekeeping troops to 10 cities to help respond to pro-Russian groups in those parts of the country. If you believe major media outlets, you would consider this a fool’s errand. Many in the media have been reporting, unequivocally, that UN peacekeepers require authorization by the UN Security Council (where Russia holds veto power). Here’s a sample:

New York Times: “The country’s acting president … asked the United Nations to send peacekeepers. But the move was widely viewed as an act of desperation, given that Russia holds a veto at the United Nations Security Council and is unlikely to assent to a such a request.”
Foreign Policy: “The Kiev government on Monday requested support from U.N. peacekeepers to minimize violence, but the deployment of peacekeepers would have to be approved by the U.N. Security Council, where Russia would have the option to veto the decision.”
Time: “Peacekeepers can only be authorized by the U.N. Security Council, on which Russia has veto power.”
AP: “Peacekeepers, however, would have to be authorized by the U.N. Security Council, where Russia holds a veto.” 

Despite its repetition, the notion that the Security Council is the only body that can authorize UN peacekeepers struck me as legally and historically suspect. 

So I asked someone who knows better than me — Professor José Alvarez, a leading expert on the law of the UN — if peacekeepers could instead be authorized for Ukraine by the UN General Assembly, whether specifically in accordance with the Uniting for Peace Resolution or more generally as part of the General Assembly’s residual power. Professor Alvarez wrote in response:

 “The Uniting for Peace resolution (Res. 377 (V) of Nov. 3, 1950), unlike article 12(1) of the UN Charter,  has not descended into desuetude for lack of use. While the ICJ, most recently in its Wall Advisory Opinion, has suggested that article 12(1) cannot prevent the General Assembly (GA) from taking measures to protect international peace and security, it has never cast doubt on its opinion in Certain Expenses that the GA is permitted to take ‘action’ under article 14.  In that opinion the ICJ also found that the only ‘action’ that the GA cannot take under article 11(2) is enforcement action (for example, requiring a peacekeeping mission to be established on a territory without the host state’s consent). The authority in Uniting for Peace, permitting the GA to make recommendations to members for collective measures in cases where there appears to be a threat to the peace, breach of the peace or aggression and the Security Council is unable to take action because of the veto remains a viable and legal backstop to the Council.  The only question is whether political support exists this time in the GA – unlike prior recent efforts to revitalize Uniting for Peace (as during the Kosovo crisis or Iraq in 2003).

Under Uniting for Peace, the GA can make recommendations for collective measures ‘including the use of armed force’ when breaches of the peace or an act of aggression are involved. Of course, if we assume Uniting for Peace is grounded in the GA’s implicit authority under articles 10, 11, and 14 of the Charter, as the ICJ did in Certain Expenses, it would follow that GA actions involving peace and security are not limited to those specifically anticipated by that resolution. The Charter, not Uniting for Peace, sets the legal limits on the GA. The Charter recognizes that the Council’s authority is ‘primary’ but not exclusive on peace and security matters and the GA has deployed its residual powers to even recommend that states adopt coercive (diplomatic and economic) sanctions (see, e.g., UN GA Res. 1761 (Nov. 6, 1961)(involving South Africa)). As is well known, the GA flexed its residual peace and security powers during the Korean crisis; it called on governments to place their military forces under UN command (Res. 498(V) of Feb. 1, 1951) and called for a weapons embargo under Res. 500 (V) of May 18, 1951. Although Uniting for Peace has since largely been used to call emergency sessions to put pressure on the Council to do its duty, legally the GA is not limited to such measures nor indeed to the precise limits anticipated by that resolution. So long as what it does not cross the admittedly imprecise lines defining ‘enforcement action,’ it would seem that the GA can legally respond to Ukraine’s request for a peacekeeping mission.”

 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.