For 30 years now, the United Nations General Assembly (UNGA) has been working hard to end the practice of 'unilateral' sanctions: sanctions that are "not authorized by relevant organs of the United Nations or are inconsistent with the principles contained in the Charter of the United Nations, as a means of forcibly imposing the will of one State on another". Today, after 30 years of consistently adopted bi-annual UNGA resolutions on the subject of "Unilateral economic measures as a means of political and economic coercion" – most recently in January 2020, where only 2 of the UN's 193 Member States voted against the resolution (USA and Israel) – this principle has entered into the statutes of Customary International Law.
Given this established legal injunction of which all UN Member States must by now be aware, it was extremely disappointing to not see the word ‘sanctions’ mentioned a single time in the UNGA's Emergency Special Session resolution on Ukraine, of 2 March 2022. That resolution in no way authorized any form of sanctions against Russia: an authorization that is yet to be given by any UN organ. As such, we in the West are now in a situation where those sanctions that have been imposed against Russia by the USA and the EU, amongst others, have been imposed 'unilaterally': they were "not authorized by relevant organs of the United Nations". They are therefore of questionable legality under international law, and stand in opposition to 30 years of UNGA resolutions on the subject; until such a time as UN authorization is finally given.
Some are likely to opine that this is because the UNGA does not have the power to authorize sanctions under the UN Charter, but it manifestly does, as I demonstrated in my earlier Article, The ‘veto’ charade. As far back as 1963, the Assembly adopted resolution 1899 by which, in addition to authorizing military sanctions against apartheid South Africa, it also ‘Urged’ “all States which have not yet done so to … Refrain also from supplying in any manner or form any petroleum or petroleum products to South Africa”; thereby authorizing economic sanctions. Moreover, if the point of UNGA Emergency Special Sessions is not at the very least to authorize immediate sanctions against aggressors, then they fail to serve any useful purpose at all; as was the case with Ukraine. Yet the Assembly’s resolution even failed to call for the lightest form of sanctions there is, diplomatic sanctions: what should have led to the immediate expulsion of Russian embassy staff from all law-abiding states.
Although those states that have already applied sanctions against Russia will (very) obviously argue that their sanctions are conversely, in complete compliance with "the principles contained in the Charter of the United Nations", and that there is therefore no need for them to be "authorized by relevant organs of the United Nations", such declarations will in no way change the legal reality: those sanctions were applied 'unilaterally', bypassing the relevant organs of the UN. If it is indeed for each state or regional grouping to decide for itself which sanctions are "consistent with the principles contained in the Charter of the United Nations", then the need for authorization "by relevant organs of the United Nations" disappears completely.
The UNGA has in fact been adopting resolutions on the more general topic of "Economic measures as a means of political and economic coercion against developing countries", since 1983. However, it was not until Cuba first submitted a draft resolution to the UNGA in 1991 calling for the lifting of the economic, commercial and financial embargo imposed against it by the USA, that the term "unilateral" started to appear in relevant UNGA resolutions. The USA's embargo on Cuba is now 60 years old, and it is seemingly the principal target of UNGA resolutions on the subject of "Unilateral economic measures as a means of political and economic coercion"; resolutions that have done nothing whatsoever to bring the USA closer to respecting established principles of international law. This sad reality is laid bare by the voting records, where the USA is one of only two states to consistently vote against related resolutions.
If the USA was asked today whether their 60-year-old embargo of Cuba is "inconsistent with the principles contained in the Charter of the United Nations", what might their response be? This situation is precisely why 'unilateral sanctions' have come to be established as unlawful, under Customary International Law. The USA is however not only turning its nose up to International Law, it is also turning its nose up to the World body as a whole. It is after all not the 15 members of the UN Security Council (UNSC) that represent the World body, but instead those very same members of the Assembly that have been demanding an end to the USA’s embargo of Cuba for 30 years.
Having chosen to simply ignore the UNGA's decades-long demands to lift their unilaterally imposed embargo on Cuba, the USA has arguably done more to weaken the UN than Russia, during the past three decades. And what did Russia have to say on the embargo of Cuba in the Secretary-General’s latest Report on the topic?
We believe it is counterproductive and futile for the United States of America to maintain its trade, economic and financial embargo against Cuba, which is a relic of the cold war and an anachronism… We consider this illegitimate regime, which has been in place for almost 60 years, to be a direct violation of international law and the Charter of the United Nations, a flagrant example of extraterritorial unilateral coercive measures, which are preventing a sovereign State from following its own development model without external interference, and an infringement of the inalienable right of the Cuban people to a decent life…
Russia believes that the lifting of the embargo would not only benefit the people of Cuba and the United States, but would also, more generally, help to improve international relations at the regional and global levels.
And how is France, another permanent member of the Security Council from the West, helping to strengthen the UN Organization? As a result of recent events in Ukraine, President Macron declared in the past days (in a clear reference to the USA, and by implication NATO): "We cannot depend on others to defend us, whether on land, at sea, under the sea, in the air, in space or in cyberspace. In this respect, our European defence must take a new step forward". He announced, as such, his desire to transform the European Union from a post-war organization aimed at peaceful social and economic cooperation, into a military organization. His gave his vision for an Orwellian World, divided into three major military blocks; only months after the 20-year renewal of the Sino-Russian ‘Treaty of Friendship’.
Given that France was the second State to ratify the UN Charter in 1945, soon after the USA, it is somewhat surprising that they apparently still haven't noticed Articles 43 and 45 of Chapter VII, nearly 80 years later. By ratifying the UN Charter, France undertook under Article 43 “to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security”. Under Article 45, “In order to enable the United Nations to take urgent military measures”, France made a legally binding commitment to “hold immediately available national air-force contingents for combined international enforcement action”.
Now, some 80 years later, rather than finally fulfilling its legal obligation to provide those contingents necessary “to enable the United Nations” – not only the UNSC – “to take urgent military measures”, the French President has instead decided to ruminate on the transformation of a highly successful civic organization, built from the rubble of World War 2, into a new military alliance. An interesting point to make here is that NATO – by far the most powerful military alliance on the planet (which may not be the case 20 years from now) – has been exposed as entirely pointless in the context of Russia’s invasion of Ukraine; and if NATO ever had a raison d’être, it was Russia. Instead, NATO’s Secretary General declared in past days that: “The only way to implement a no-fly zone is to send NATO fighter planes into Ukraine’s airspace, and then impose that no-fly zone by shooting down Russian planes… If we did that, we’ll end up with something that could end in a full-fledged war in Europe, involving many more countries and causing much more human suffering”. And what if the EU did have a – far less powerful – military alliance established today when Russia attacked Ukraine, a non-EU member? Wouldn’t the conclusion have necessarily been exactly the same, at best?
Perhaps Ukraine should be asking itself if instead of doing everything it could to join NATO in past years, as one of the original 49 parties to the UN Charter, it should have instead been offering its forces to the UN; as required under its Charter obligations. Popular support for the war is surprisingly strong in Russia today, and one of the few possible explanations for that is likely to be legitimate Russian fears of an ever-expansionist NATO. Had Ukraine instead focused its hopes on the UN, could Russia – another founding member of the UN – possibly have objected in the same way? By pushing hard for Ukrainian membership of NATO, Russia was handed one of its two pretexts for invasion.
There will of course be some that will argue that any UN-led forces would likewise have been unable to take action in Ukraine, given the Russian veto in the Security Council. What most fail to realize however, is that the vetoes of the permanent members in the Security Council are exactly that: ‘in the Security Council’. Those same permanent members (of the Security Council) cannot block subsequent action by the General Assembly. Despite this reality, given that Article 43 was recently quoted, and given that Article 43 – unlike Article 45 – speaks explicitly of the “Security Council”, it can be legitimately questioned if UN forces might become immobilised by UNSC vetoes. The answer is happily: No.
The last and perhaps key Article of Chapter VII, is Article 51: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security”. What is manifestly provable concerning Ukraine today, is that the UNSC has in no way “taken measures necessary to maintain international peace and security”; blocked as the Council is by the Russian veto. As such, there remains a residual legal right under the UN Charter for “collective self-defence if an armed attack occurs against a Member of the United Nations”, such as in the case of Ukraine. It goes without saying that under the UN Charter, “collective self-defence” should always be spearheaded by those forces made initially available to the UNSC under Article 43, but more generally to “the United Nations” as a whole under Article 45.
Despite having been adopted five years prior, Article 51’s echoes could still be heard in 1950 during plenary debates on the ‘Uniting for Peace’ resolution (covered extensively in my Book, Pax UNita), which clarified and declared for the first time what the full powers of the General Assembly actually are, under the UN Charter. During these debates, the World heard from the French Ambassador to the UN:
France supports the Charter – the whole Charter... Where peace and security are at stake, France considers that the General Assembly and the Security Council should assume all the responsibilities laid upon them by the Charter... It is unthinkable that this entire machinery, designed to safeguard the peace and security of the world, should remain inactive when there is a threat to peace and security...
The draft [Uniting for Peace] resolution does not infringe upon the Security Council’s competence, responsibilities or powers. The Council should fulfil its role; if it does so it will be adequate... If, however, for some reason, it does not fulfil its role, the United Nations will not thereby be paralysed. A [emergency] special session of the General Assembly can be convened within twenty-four hours and the Assembly ... can discuss and adopt any recommendations which appear necessary for the maintenance or re-establishment of peace and security.
And what of the last remaining Western permanent member of the UNSC, the United Kingdom, and their efforts to strengthen the UN in past decades? The Security Council heard from the UK Ambassador on 25 February 2022: “First, Russia claimed this was all Western hysteria. Then, they said it was about Donetsk and Luhansk”. She failed to mention the eight-year-old dispute over the Donetsk and Luhansk regions in the east of the State of Ukraine again in her speech however, clearly scornful of any Russian suggestion that the conflict there had played a role in the current war. She instead went on to speak only of the “sovereignty and territorial integrity of Ukraine”.
By signing the Minsk II Agreement of 12 February 2015, the Ukrainian State agreed to “constitutional reform in Ukraine with a new constitution entering into force by the end of 2015 providing for decentralization as a key element… as well as adopting permanent legislation on the special status of certain areas of the Donetsk and Luhansk regions”. This ‘special status’ legislation was to have included the “Right to linguistic self-determination”. What seems clear today is that no “permanent legislation on the special status of … the Donetsk and Luhansk regions” was adopted by the Ukrainian Government before the end of 2015; or even by the end of 2021. This absence provided Russia with their second pretext for invasion, to which I alluded earlier.
Addressing the UNGA Emergency Special Session a few days later on 28 February 2022, the UK Ambassador spoke once again of “the territorial integrity and sovereignty of Ukraine”, but she then appeared to have misplaced her dictionary. Ukrainians “are fighting for their country, for their continued future as a free and independent nation… If we do not stand up for them now, then the safety of every nation’s borders and independence are at risk”. What’s most interesting about the Ambassador’s choice of words is that for over a decade now, one can even find reference to the “Four Nations of the UK” in official UK Government documents: those Four “Nations” being England, Wales, Scotland and Northern Ireland. England today as such – the ‘Nation’ that invented the English language – makes a clear distinction between ‘State’ and ‘Nation’, at the level of Government. The United Kingdom, as is hopefully clear to the Ambassador, is a ‘State’ not a ‘Nation’, so she may well have unsettled some back home with her reference to “the safety of every nation’s borders and independence”; amongst them those Scottish, Welsh and Irish nationalists still hoping to achieve full national “independence”.
As explained in my 2007 essay, The Responsibility to Protect Self-Determination, one of the key defining characteristics of a ‘Nation’ is its language (e.g. Kurdish, Pashtun), which becomes a very important point when you consider that the “permanent legislation on the special status of … the Donetsk and Luhansk regions” was to include “the right of linguistic self-determination”. The Donetsk and Luhansk regions are after all Russian-speaking, making them closer to the Russian Nation than to the Ukrainian Nation, should one’s legal arguments be based upon actual dictionary definitions. In the same essay, I went on to demonstrate why the idea of ‘States’ – which are no more than administrative organizations – having an inherent right to “territorial integrity and sovereignty”, not only isn’t backed up by UN resolutions or by the UN Charter, but that the very concept makes no sense (i.e. ‘administrative organizations’ cannot self-determine, themselves; ‘peoples’ can). Only ‘Nations’ have a legal right to “territorial integrity and sovereignty”, owing to their intrinsic legal right to ‘National Self-Determination’; a principle that can absolutely be found in the Charter and resolutions of the UN.
By discussing only “the territorial integrity and sovereignty of [the State of] Ukraine”, whilst actively denying the ‘peoples’ of Donetsk and Luhansk their legal right to National Self-Determination, the UK is not only weakening the legal order at the UN, but it is also making far more difficult a just solution to the current conflict in Ukraine. Conversely, the only ‘Golden Bridge’ that exists today for Putin to withdraw his troops – without losing face – is for a just solution to the conflict in Donetsk and Luhansk to be imposed immediately by the UN, in full respect of the ‘Right to National Self-Determination’ (of and by ‘peoples’). This is a resolution that the UNGA could adopt within days, should it find the courage to do so, and it would immediately eliminate Russia’s first stated pretext for war.
Should the UK instead wish to contribute positively to the legal order at the UN, in Ukraine, in Donetsk and Luhansk, and potentially even within its own State borders, the ideal starting point is probably the UNGA’s Declaration on Principles of International Law, of 24 October 1970:
Convinced that the subjection of peoples to alien subjugation, domination and exploitation constitutes a major obstacle to the promotion of international peace and security, Convinced that the principle of equal rights and self-determination of peoples constitutes a significant contribution to contemporary international law, … 1. Solemnly proclaims the following principles: … Every State has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter…
Every State has the duty to refrain from any forcible action which deprives peoples … of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of the exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.
The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people.
Russia's ongoing attack on Ukraine, whilst certainly representing a challenge to the UN, has not yet weakened it. Paradoxically, the invasion of Ukraine has done more to rejuvenate the UN, more to confirm the Purposes and Principles of its founding Charter, than the three permanent Western members of the Security Council combined. But it is now time for the General Assembly to assume its ‘final responsibility’ under the Charter, for the maintenance of international peace and security. If not now, when?
Cameron Hunt is the author of Pax UNita – A novel solution to the Israel-Palestine conflict.