Email exchange between Saker and Alexander Mercouris (Legal question)

Dear Alexander

 

I just read this: http://theduran.com/general-assembly-vote-jerusalem-nikki-haley/

Where the author mentioned that:

“the UN General Assembly convened today under the extraordinary procedure created by UN General Assembly Resolution 377 (V) (A) on 3rd November 1950. This procedure – known as “Uniting for Peace” – can be invoked by the UN General Assembly whenever the UN Security Council is unable to reach a consensus on any issue which affects peace.”

the author further  writes:

“However though a resolution of the UN General Assembly made in accordance with the “Uniting for Peace” procedure is legally binding on UN Member States, there is no mechanism to enforce it, as there is when the UN Security Council votes for a resolution made under Chapter VII of the UN Charter”

I was not aware of this procedure and I wanted to ask you this: has the Russian protection of the Crimean referendum and the subsequent admission of Crimea into the Russian Federation ever been condemned by the UN General Assembly under that procedure?

Specifically, is Russia currently in violation of international law regardless of any issues of enforceability.

Last but not least, do you know of other instances when the UNGA voted under this procedure to basically overrule the UNSC?

If you could clarify this for me I would be most grateful.

Kind regards,

The Saker

——-

Dear Saker,

I can answer all these questions.

(1) “Uniting for Peace” was a device sponsored by the US in 1950 in order to circumvent Soviet vetoes during the Korean war. At the time it was legally controversial and as Professor Tomuschal (quoted in the article) has pointed out, it actually contradicts the UN Charter. However in 1950 the US controlled the UN and the international court system as totally as it ever has done since (thus the Soviet vetoes) and it was able to get the “Uniting for Peace” procedure accepted.

(2) It has however only been invoked very rarely, in total no more than eleven times (the UN General Assembly vote on Jerusalem being the eleventh).

(3) The point about a “Uniting for Peace” Resolution passed by the UN General Assembly is that it becomes a part of international law. I can therefore be cited as legally binding in cases before the International Court of Justice (“the World Court”) or indeed other international courts. However it is not legally enforceable except through the UN Security Council. Since the “Uniting for Peace” procedure is by definition only invoked when the UN Security Council cannot agree this has robbed it of its effectiveness.

(4) Now comes the key point.

The UN General Assembly has NEVER declared the the Crimean referendum and the unification of Crimea with Russia illegal under the “Uniting for Peace” procedure.

To my knowledge the only time the “Uniting for Peace” procedure was used against Russia was in 1980 to declare the Soviet intervention in Afghanistan illegal. Though Russia is in a consistent minority in the UN Security Council the US has never succeeded in mobilising sufficient support against Russia in the General Assembly to secure a “Uniting for Peace” resolution against it on any issue since the 1980 vote on Afghanistan.

The UN General Assembly did vote on the question of the Crimean referendum in March 2014 but the resolution was non-binding and was not brought under the “Uniting for Peace” procedure.

Moreover only 100 out of the 193 UN Member States supported it (11 states including of course Russia voted against it; 58 states including India and China and totally 58% of the world’s population abstained, and 11 states including Iran and Israel failed to take part in the vote, which is a form of abstention).

This was virtually a defeat for the US and Ukraine because for a resolution to pass the UN General Assembly it must have the support of more than half of all UN Member States ie. – since the UN has 193 Member States – at least 97 UN Member States must vote for it.

In other words the resolution on the Crimean referendum was not merely non-binding but it only just squeaked past with just 100 votes in favour.

Given that the US had the automatic support of all the NATO/EU states in the voting that underscored how little support for the US/Ukrainian position on Crimea there actually is outside the Western Alliance with key countries like China, India, Brazil, South Africa, Pakistan and Vietnam refusing to support the resolution.

Needless to say the US has not risked another vote on Crimea since then, whereas during the 1980s it staged UN General Assembly votes criticising the Soviet intervention in Afghanistan regular as clockwork every year.

Needless to say the March 2014 UN General Assembly vote on Crimea is not something that you hear Western commentators bring up precisely because it was so close to being a debacle.

The result is that there is NO legal finding either by the International Court of Justice or by the UN General Assembly or by the UN Security Council that Russia is in violation of international law on the Crimea issue and those who say it is have no international consensus on this issue behind them.

I presume you are familiar with the International Court of Justice’s Advisory Opinion on Kosovo which says quite clearly that unilateral declarations of independence such as the one made by Crimea in 2014 are not contrary to international law even if made in contravention of the constitution of the country the region making them is seceding from?

That too means that the Crimean declaration of independence of 2014 and Crimea’s subsequent decision to join Russia is NOT contrary to international law. Putin repeatedly points this out but the US – which lobbied the International Court of Justice hard for the Advisory Opinion on Kosovo (just as it lobbied in 1950 for the “Uniting for Peace” procedure) prefers to forget it and you never seen the Advisory Opinion on Kosovo ever brought up in any Western discussion of the Crimean issue.

It is of course because of the Advisory Opinion on Kosovo and the UN General Assembly’s failure to pass a binding “Uniting for Peace” resolution declaring Crimea’s union with Russia illegal that Ukraine has never brought legal action against Russia on the Crimean question in the International Court of Justice.

I trust this answers your questions? Please do not hesitate to contact me is there is any other point you want me to clarify.

Best Wishes,

Alexander