The Saker poses a legal question to Alexander Mercouris (email exchange)
[Note: today I emailed my friend Alexander Mercouris to ask him a question about the UN General Assembly vote on the US recognition of Jerusalem as the capital of Israel. Alexander’s reply was so interesting that I asked him if I could post it here, to which he has kindly agreed. I am most grateful to him for that. The Saker]
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.
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.
The UN General Assembly vote on Jerusalem: Nikki Haley again fails the US
Threats and insults directed at UN Member States merely hardened attitudes against the US
Not for the first time Nikki Haley as the US’s UN ambassador has acted in a way which furthers her own political interests within the US as opposed to those of the Trump administration of which she is a part.
I say this because of her extremely ill-advised conduct both in the UN Security Council session on Monday and during the extraordinary UN General Assembly session today.
Any well-informed diplomat should have known prior to the UN Security Council and General Assembly sessions that the great majority of UN Member States would oppose US recognition of Jerusalem as Israel’s capital. Any well-informed diplomat would have so advised the President and would also have advised the President that any vote against the US in the UN General Assembly would be both overwhelming and symbolic.
To be clear, the resolution the UN General Assembly has just voted on about Jerusalem is in theory legally binding on all UN Member States including the US, and is part of international law just as UN Security Council resolution would be.
This is because 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.
Here is what Professor Christian Tomuschal of Humboldt University Berlin has to say about it
The most important part of resolution 377 A (V) is section A which states that where the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security, the General Assembly shall seize itself of the matter. Procedural and substantive steps are suggested. First of all, if the Assembly is not in session, it may meet in emergency special session at the request of the Security Council or of a majority of its own members. Second, such a session shall be convened with a view to making appropriate recommendations for “collective measures…including the use of armed force when necessary”.
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.
Here is what Professor Tomuschal has to say about that
Although the General Assembly did not attempt to arrogate to itself powers akin to those rooted in Chapter VII of the Charter, it stands to reason that originally resolution 377 A (V) was hardly reconcilable with the Charter. Articles 11 and 12 establish unequivocally the primacy of the Security Council with regard to all matters relating to international peace and security. As far as procedure is concerned, Article 12, paragraph 1, stipulates that while the Council is exercising its function in respect of any dispute or situation, “the General Assembly shall not make any recommendation with regard to that dispute or situation”. On the other hand, where “action” seems to be necessary, the General Assembly is enjoined to refer the matter to the Council (Article 11, paragraph 2). This configuration, however, was hard to uphold. Politically, it is definitely quite unwise to keep the General Assembly on the sidelines when a major conflict erupts. Almost as a logical consequence, Article 11, paragraph 2, and Article 12, paragraph 1, have suffered an erosion process of which resolution 377 A (V) constitutes only one element among many others. In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the ICJ has formally confirmed that the prohibition of simultaneous action has been superseded by practice (I.C.J. Reports 2004, p. 136, at paras. 27-28).
In plain English, a resolution of the General Assembly under the “”Uniting for Peace” procedure is unenforceable except through the UN Security Council and is recognised by international law as such and is therefore ultimately essentially symbolic.
Given that this is so Nikki Haley’s correct response was to advise the President (1) that the General Assembly was certain to vote for the resolution; (2) that the vote would be purely symbolic; and (3) that the US should therefore be relaxed about it.
Given that situation the correct thing to do was to do everything possible to lower the temperature in advance of the General Assembly session today so as to play down the significance of the vote and limit the diplomatic damage.
Instead Nikki Haley did the diametric opposite.
Instead of playing down the significance of what was happening she ramped it up by hurling abuse and threats at the other UN Member States first at the UN Security Council on Monday and then before and during the UN General Assembly session today.
Here is how the UN’s media centre reports her comments at the UN Security Council session on Monday
NIKKI R. HALEY (United States), speaking after the vote, explained that she had cast the veto in defence of her country’s role in the peace process. The President of the United States had taken care not to prejudge final status negotiations, including boundaries in Jerusalem, a position that was in line with previous Council resolutions, she said. He also supported the status quo on holy sites and the two‑State solution. Emphasizing that the United States had not harmed the peace process, she said it had the courage to recognize a fundamental reality, and the sovereign right to decide where to put its embassy. Describing the accusation that her country was setting the peace process back as scandalous, she said that a peace process that could be damaged simply by recognizing Jerusalem as Israel’s capital was not a peace process. Today, the Council had witnessed an insult that would not be forgotten, she said, adding that the United Nations was doing more harm than good for the cause of peace. For those reasons, and in the best interests of both peoples firmly in mind, the United States had voted “no”, she said.
(bold italics added)
Talking wildly of member states of the UN Security Council – including allies of the US such as Britain, France, Italy, Japan, Egypt and Ukraine – “insulting” the US, and threatening them that their “insult” would “not be forgotten” merely because they voted in favour of a resolution that is in accord with all previous resolutions of the UN General Assembly and of the UN Security Council on the subject of Jerusalem was preposterous and needlessly rude and threatening.
Haley then capped this disastrous statement by warning UN Member States that she was making a list of all those Members States who dared to vote for the resolution in the General Assembly today, and that she would report about it to the President.
At one point during the session today she even appeared to hint that the US might actually consider withdrawing from the UN entirely.
The latter threat is of course an empty bluff, but it will have annoyed many UN Member States who voted for the resolution but who otherwise consider themselves loyal allies of the US, but who also do not care to be publicly threatened in this way or to see the United Nations – the key body at the heart of the whole system of international relations and of international law – treated in this disrespectful way.
The contrast with the calm way Russia invariably responds to the multiple votes the Western powers engineer against it in the UN Security Council is instructive.
Despite the fact that Russia is normally in a minority in the UN Security Council on contentious issues, its care in explaining its now frequent use of its veto explains why even at the height of the crises in Ukraine and Aleppo it managed to avoid finding itself at the wrong end of a General Assembly vote under the “Uniting for Peace” procedure of the sort the US lost today.
Unfortunately Haley’s petulant behaviour appears to have rubbed off on the President himself, who also threatened to cut off financial aid to those UN Member States who voted for the resolution today.
The problem with Nikki Haley as I have discussed previously is that she is not really a diplomat at all. Instead she is a politician with her eye very much on the White House.
The result is that she conducts herself both in the Security Council and in the General Assembly not as a diplomat should do but as a politician who is permanently on campaign, striking rhetorical poses which might impress some voters in the US but which do nothing good for the US’s international position.
Unfortunately with Rex Tillerson the US’s highly competent Secretary of State coming under growing pressure, there does not seem to be anyone in Washington who has either the wish or the ability to rein her in.
The result is that we are likely to see more performances of this sort in future.
Total Humiliation for the USA and Israel at the UN
by Gilad Atzmon
Trump’s America is still a superpower. It was supported by no less than eight other countries, including Honduras, Guatemala, Palau, Marshall Islands, Kiribati, Togo, Nauru and southern Sudan and do not forget Israel.
The resolution passed with an overwhelming majority of 128-9, the UN General assembly declares the US’ recognition of Jerusalem as the capital of Israel ‘null and void.’
It took Donald Trump a year to reduce American world hegemony into dust. Surely this is not a bad thing. Trump promised to make ‘America Great Again,’ he certainly accomplished the first stage of his mission. For America to be great it better be small and insignificant first.
The vote today is a clear message to America and Israel. Sympathy is not running out, it is basically over.