POWER SHIFT: THE RETURN OF THE UNITING FOR PEACE RESOLUTION.

• Author: Scharf, Michael P.

ABSTRACT

In 2022, the United States dusted off the 1950 Uniting for Peace Resolution in order to obtain General Assembly condemnation of the Russian invasion of Ukraine. This was the first time in three decades that the Security Council and General Assembly had utilized the Uniting for Peace mechanism--a process designed to end-run a Security Council veto. Together with the General Assembly's creation of the international investigative mechanism for Syria in 2016 over Russia's objection, the use of the Uniting for Peace process to condemn Russia's aggression represented a shift in power away from the Security Council and to the General Assembly, with potentially broad and long-term implications. This article examines the causes and consequences of that power shift.

TABLE OF CONTENTS ABSTRACT TABLE OF CONTENTS I. INTRODUCTION II. THE HISTORY OF THE UNITING FOR PEACE RESOLUTION. A. Security Council Deadlock During the Cold War B. The Creation and Uses of the Uniting for Peace Resolution III. Is the Uniting for Peace Resolution Still Relevant Today? A. The General Assembly's Creation of the HIM B. Humanitarian Intervention: The Bombing of the Syrian Chemical Weapons Facilities C. Russia's 2022 Invasion of Ukraine: Reemergence of the Uniting for Peace Resolution IV. CONCLUSION I. INTRODUCTION

After the disintegration of the Soviet Union in 1991, foreign policy experts optimistically declared that the world had entered the "post-cold war age." (1) Within the U.N. Security Council, it was a period of unprecedented collaboration and accomplishment. (2) In the few years that followed, the U.N. Security Council adopted more Chapter VII resolutions, condemning international law violations, establishing peacekeeping forces, imposing sanctions, authorizing force, establishing No Fly Zones and Safe Areas, and creating investigative commissions and international criminal tribunals, than in the preceding five decades since the creation of the United Nations. (3) But, with the onset of the Syrian conflict and rising tensions between China and the United States, by 2012 that began to change. (4)

During the Syrian conflict, Russia vetoed thirteen Security Council Resolutions that would have condemned the Syrian government's atrocities, created a commission to investigate Syria's use of chemical weapons, and referred the matter to the International Criminal Court. (5) In this context, the Guardian newspaper reported in 2015 that "[t]he United States has warned that Russia's continued blanket use of its UN veto will jeopardize the [S]ecurity [C]ouncil's long-term legitimacy and could lead the U.S. and like-minded countries to bypass it as a decision-making body." (6) As the U.S. Permanent Representative to the UN told the Guardian: "It's a Darwinian universe here. If a particular body reveals itself to be dysfunctional, then people are going to go elsewhere." (7) That threat became reality in December 2016 when the General Assembly, acting unilaterally, created the International Impartial and Independent Investigative Mechanism to document Syrian atrocities and prepare case files for prosecution. (8)

In February 2022, Russia's massive invasion of neighboring Ukraine ushered in a full-on return of the Cold War. (9) The invasion and international response were described as "a major breaking point in history." (10) Five days after the invasion, 11 members of the UN Security Council adopted a U.S.-drafted Resolution invoking the authority of the 1950 "Uniting for Peace" Resolution (11) and calling for a special session of the UN General Assembly to take action to respond to Russia's aggression in circumvention of Russia's veto at the Security Council. (12) At that special session, on March 2, the U.N. General Assembly adopted Resolution ES-11/1 by a vote of 141 in favor, 5 opposed, and 35 abstentions. (13) The Resolution characterized Russia's action as "aggression ... in violation of Article 2 (4) of the Charter" and demanded that Russia "immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders." (14)

This was the first time in three decades that the Security Council and General Assembly had utilized the "Uniting for Peace" procedure--a process designed to end-run a Security Council veto. (15) Together with the General Assembly's creation of the IIIM in 2016, the use of the Uniting for Peace process to condemn Russia's aggression in 2022 represented a shift in power away from the Security Council and to the General Assembly, with potentially broad and long-term implications. (16)

This article examines the causes and consequences of that power shift. First it surveys the history of the adoption of the Uniting for Peace Resolution and its historic uses. Next, it explores the UN General Assembly's creation of the HIM and the adoption of Resolution ES-11/1, focusing on the reinterpretation of the U.N. Charter reflected by those developments. Finally, it analyzes the likely legal and institutional consequences of these developments.

2. THE HISTORY OF THE UNITING FOR PEACE RESOLUTION

   1. Security Council Deadlock During the Cold War

      After the failure of the League of Nations, which only lasted from 1920 to 1945, (17) the countries that negotiated the UN Charter in San Francisco in May-June 1945 formed the new organization around a potent Security Council, made up of the five most powerful States-the Permanent Members (18)--and a handful of others elected on a rotating basis. While the General Assembly would include every member of the organization with an equal vote, the Security Council would have the primary responsibility within the UN system for the maintenance of international peace and security, as well as enforcement of international law. (19)

      As the price demanded for their support of the new organization, (20) the Permanent Members were accorded a veto over all substantive matters before the Security Council. (21) The delegates at San Francisco granted the veto power to the Permanent Five because of "a tremendous amount of confidence in the certainty that the veto shall not be applied except in exceptional cases." (22) But that confidence was misplaced. The creation of the United Nations corresponded with the dawn of the Cold War. (23) It was a period marked by gridlock in the Security Council, which was prevented by the Permanent Member veto from intervening to halt atrocities and bloodshed in a variety of conflict areas around the world. (24) During the Cold War period, the Soviet Union vetoed 122 Resolutions, the United States vetoed 80, Britain vetoed 32, France vetoed 20, while China vetoed none. (25)

      Security Council deadlock during the Cold War went through two phases. In the first, 1946 to 1965, when most of the members of the United Nations were West-leaning States, the Soviet Union vetoed 106 resolutions, while the United States vetoed none. (26) In the second phase, 1966 to 1989, during which a number of former colonies joined the United Nations as newly independent States, the United States vetoed 67 Security Council Resolutions, most related to Israel, while the Soviet Union vetoed just 13. (27)

      The frequent use of the veto, especially in cases where U.N. action could halt humanitarian disasters, has eroded the legitimacy of the United Nations Security Council. Over the years there have been numerous proposals to amend the UN Charter to make it more difficult for the Permanent Five to exercise their veto power. (28) But Charter amendment requires the consent of the Permanent Five, so all proposals that would weaken the veto have been met with their opposition and have gone nowhere, leading scholars to decry that the "veto is essentially immune from reform." (29)

   2. The Creation and Uses of the Uniting for Peace Resolution

      At the height of the Cold War, the Uniting for Peace Resolution was created to enable the General Assembly to act quickly in an international crisis in the face of Security Council paralysis due to a Permanent Member veto. The brainchild of the United States, the Resolution was adopted by the General Assembly on November 3, 1950 in response to the Soviet Union's veto of resolutions addressing North Korea's aggression against South Korea. (30)

      In June 1950, the Security Council had initially authorized Members of the United Nations to "furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area." (31) That resolution was not vetoed by the Soviet Union-an ally of North Korea (32) -because at the time the Soviet Union was boycotting the meetings of the Security Council in an effort to compel the Council to seat the communist Government of Beijing rather than the nationalist Government of Taiwan as China. (33) This turned out to be an enormous diplomatic blunder since the other members of the Council and later the International Court of Justice (34) took the position that being absent was not the same as a non-concurring vote for purposes of exercising the Permanent Member veto. (35) When the Soviet delegation returned to the Security Council in August 1950, it voted against a United States draft resolution condemning the continued defiance of the United Nations by the North Korean authorities. (36) In order to overcome this impasse, the United States proposed that the General Assembly adopt the Uniting for Peace Resolution. (37) The United States knew that this would dilute the power of its veto, but up to that point in time it had never used the veto and viewed the continued authorization to fight the Korean War as a more important consideration. (38)

      The Uniting for Peace Resolution allows the General Assembly to immediately consider matters in which the Security Council has failed to perform its duty to maintain international peace and security due to the use of the veto. (39) The General...