15 Apr Can the United Nations General Assembly Authorize a No-fly-Zone over Ukraine?
[Florian Kriener is a Research Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany and a member of the Research Group Shades of Illegality in the International Law of War and Peace.]
As the Russian aggression against Ukraine continues, calls for a no-fly-zone over Ukraine have gotten louder. One of the recipients of this call is the United Nation’s General Assembly (GA) (here, here and here). In its historic resolution A/ES-11/1 of 2 March 2022, the GA declared that it would only “adjourn” the emergency special session and authorized its President to resume the meeting in order to take further measures (para. 16). Just last week, the GA convened to suspend Russia from the Human Rights Council. Against this backdrop, this post asks whether the GA could authorize UN member states to militarily intervene in the current situation by recommending the establishment of a no-fly-zone.
The text of the United Nations Charter (UNCh) suggests otherwise. Art. 24 UNCh bestows the United Nation’s Security Council (SC) with the “primary responsibility for the maintenance of international peace and security” and Art. 12 UNCh establishes the precedence of the SC’s decisions over the GA’s recommendations, if they pertain to the same question. Most importantly, Art. 42 UNCh stipulates that the SC “may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security.” Other organs that could order these measures are not mentioned.
Yet, in the Uniting for Peace resolution of 1950 the GA assumed that it had the capacity to make such orders. In line with Art. 24 UNCh’s wording, the GA affirmed that the SC’s competence on matters of international peace and security is only primary and not exclusive. Therefore, the GA is called upon to asses questions of international peace and security “if the Security Council, because of lack unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace”. In the GA’s view this also entails the ability to mitigate the aggression of one state through the use of force. The Uniting for Peace resolution states:
“Recognizing that discharge by the General Assembly of its responsibilities in these respects calls for possibilities of observation which would ascertain the facts and expose aggressors; for the existence of armed forces which could be used collectively; and for the possibility of timely recommendation by the General Assembly to Members of the United Nations for collective action which, to be effective, should be prompt,”
The resolution goes on to state that:
“[…] the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary […]”
Thus, the GA assumes that as a corollary to its responsibility for matters of international peace and security it may also recommend the use of armed force of its member states against an aggression. Although the GA employs the term “recommendation”, which suggests a non-binding nature of any decision on this matter, the context of the Uniting for Peace resolution suggests that the GA assumed its recommendations to have a binding effect.
The UNGA and the UN Mission in Korea
The Uniting for Peace resolution was preceded by GA Resolution 376 (V) entitled “The problem of the independence of Korea”. After noting that United Nations armed forces were present in Korea in accordance with “recommendations” of the Security Council, the GA recommended that these armed forces only remain in certain areas of Korea in order to ensure stability and enable the establishment of a democratic state in Korea (para. 1 (a), (b), (d)). Thus, the GA assumed that it could direct the United Nations forces in Korea and establish the purpose of their mission.
Moreover, the GA’s resolution could be considered a “prolongation” of the United Nations mission In June of 1950, the SC passed Resolutions 82 and 83 which “recommend[ed]” its member states to furnish all assistance towards ending North Korean aggression against South Korea. At the time, the Soviet Union was not participating in the SC’s meetings in order to force a change in China’s SC seat, which at the time was occupied by the Republic of China instead of the People’s Republic of China. However, the Soviet Union returned to its SC seat in August of 1950, blocking all further (military) measures on the situation in Korea. Against this backdrop, the GA assumed its residual responsibility for questions of international peace and security. In subsequent resolutions, the GA endorsed the actions of its member states that were fighting in Korea (inter alia Resolution 376 (V) and Resolution 498 (V) of November 1951). These endorsements and recommendations could amount to a legal prolongation of the prior UNSC mandate, particularly since SC Resolution 83 also employed the operative clause “recommends” for its authorization of the use of force in Korea.
However, the SC’s mandate had never been revoked by the SC and was likewise not limited in a timely manner. States engaged in the United Nation’s mission only referred to the SC resolution to justify their actions (see USA, UK, Canada, Turkey, Australia, Belgium, The Netherlands). Therefore, the GA’s recommendation was not the primary source of authority for the UN’s mission in Korea, but rather accorded legitimacy to the continuance of the mission.
Subsequent Practice and the Certain Expenses Advisory Opinion
Since then the GA has held ten emergency special sessions on matters of international peace and security and never proceeded to authorize armed force by its member states. The GA deployed the United Nations Emergency Force in Egypt (UNEF I) after the Suez War. However, the mission was designed to observe a ceasefire agreement and it was not intended to actively engage in hostilities. Moreover, Egypt had consented to its deployment.
Furthermore, the International Court of Justice (ICJ) restricted the GA’s mandate on questions of international peace and security in its 1962 Advisory Opinion on Certain Expenses of the United Nations. Among other questions, the Court decided on the legality of UNEF’s deployment to Egypt. In its reasoning it held that UNEF’s deployment did not constitute an enforcement measure. It was rather qualified as a non-coercive operation intended to promote the peaceful settlement of the dispute that had led to the Suez War. In the ICJ’s view, this non-coercive character was essential for its legality:
“The responsibility conferred is primary, not exclusive. This primary responsibility is conferred upon the Security Council, as stated in Article 24, in order to ensure prompt and effective action. To this end, it is the Security Council which is given a power to impose an explicit obligation of compliance if for example it issues an order or command to an aggressor under Chapter VII. It is only the Security Council which can require enforcement by coercive action against an aggressor.” (p.163)
Although the ICJ recognized that the UNCh also confers some responsibilities in the area of international peace and security on the GA (p.163-165), the authority to order military operations remained exclusively with the SC. Had UNEF been qualified as a coercive enforcement measures, its deployment through the GA would have been illegal.
The UNGA’s Further Options in Ukraine
Therefore, the GA cannot order a no-fly-zone over Ukraine. A no-fly-zone would likely entail active hostilities with Russian armed forces. This could only be authorized by the SC as it did in the wake of the Libyan Revolution in 2011 with Resolution 1973.
There is however one caveat to this conclusion. The Ukrainian government has already signaled that it would invite other states to implement a no-fly-zone over its territory. As Ukraine is currently exercising its right to self-defense under Art. 51 UNCh against Russia’s aggression, states can furnish military assistance to Ukraine as a measure of collective self-defense. The GA could welcome such action in accordance with the Ukrainian government’s invitation. This would fall short of an authorization and have no legal effect. However, it could bestow legitimacy to such actions. The SC has frequently supported collective self-defense measures in this way, for example, Resolutions 2249 on ISIL in Syria and Iraq (2015) and 1368 and 1373 on the 9/11 attacks (2011). Although these resolutions did not “authorize” the use of force under Chapter VII, the SC’s implicit approval of member states’ actions was key for their implementation. As such a recommendation would not constitute an “enforcement by coercive action”, the GA could declare its (political) support for collective self-defense measures for Ukraine within the Uniting for Peace framework.
Whether this is a politically viable option is a wholly different question, particularly against the backdrop of Vladimir Putin’s threat of using nuclear weapons in such a case. Any recommendations for collective action should be taken with utmost prudence. Before issuing its approval for collective security actions in support of Ukraine, the GA can draw upon a wide array of other options to curtail Russia’s aggression against Ukraine. It can recommend sanctions and the establishment of a special tribunal, provide the Secretary General’s good offices, assist on humanitarian matters and fund mitigation initiatives. Authorizing collective enforcement measures is not one of them.