The Legal Effect of the UN G.A. Resolution demanding that Russia “immediately, completely, and unconditionally” withdraw its troops from Ukraine (approved yesterday by 141 member-states)
By all appearances, Russia is ignoring the UN General Assembly Resolution demanding that it “immediately, completely, and unconditionally” withdraw its troops from Ukraine — with the continuing bombing of Ukrainian cities by Russia. The scheduled peace talks tomorrow is, at best, a public relations move on the part of Russia for appearances’ sake, and a veiled effort for the negotiated surrender of Ukraine — worse, since Russian troops are re-grouping, it is a ruse to consolidate its forces and re-supply its troops.
A few hours after the UNGA Resolution was approved yesterday by 141 member-states, a CNN news anchor based in Abu Dhabi, towards the end of her segment, in passing, flippantly characterized it as a non-binding resolution — perhaps engendered by how the UN has characterized its resolutions in the past and the observation that nobody enforces UN G.A. Resolutions.
The following are considered binding:
(from Art. 38, ICJ Statute)
“a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.” (Art. 38, ICJ Statute)
Generally, the UN itself considers its resolutions as expressions of views and “non-binding”. (A UN G.A. Resolution is generally non-binding unless it can be shown that it is state practice and consistent with opinio juris (deemed by states as binding), in which case it is considered as reflective of customary international law and therefore binding.)
But what if the UN Resolution is an implementation of binding international conventions and multi-lateral treaties?
The UNGA Resolution (GA/12404, March 2, 2022), being an implementation of the UN Charter (Art. 2(4) ) and other binding international conventions –-
— and since it can be shown to be (1.) part of state practice and (2) supported by opinio juris (a recognition by states that it is binding) and therefore part of customary international law —
can be argued to be binding in a situation such as this. (i will argue it in this manner, anyway)
Perhaps there’s confusion between being “binding” and “will be enforced”.
Will it be enforced, i.e., will the UN authorize the use of force to make Russia withdraw its forces from Ukraine?
That question is dependent on the interests of member-states who have the capability of enforcing it (e.g., the members of the UN Security Council) and an evaluation of whether or not action or inaction would further escalate the skirmishes and bombings, and expand the armed conflict outside the borders of Ukraine.
At the very least, UNGA Resolution GA/12404 can be used as legal basis for follow-through courses-of-action that are more detailed, and more persuasive if not more forceful, in the immediate future —
— hopefully, in the next few days.
marichulambino.com 