The Russian Invasion of Ukraine and the Future International Legal Order ---Will the "Uniting for Peace" Resolution Promote Legal Institutionalization of Common Interests of the International Community as a Whole?

Masahiro Kurosaki

1. Introduction

Since February 24, 2022, when Russia launched its invasion of Ukraine, the international legal order has been in an unprecedented predicament. The unusual acts of brutality committed by a permanent member of the UN Security Council shook significantly the UN collective security regime and international law that institutionally sustains it. Many lamented and despaired that the United Nations and international law are powerless in the face of war. Undeniably, neither the United Nations nor international law can completely prevent war. However, Ukraine and the majority of UN member states are far from despairing in the face of the daily ravages of war and are making every possible effort in solidarity to defend the existing international legal order, with the UN Charter at its nucleus. This may be because they have adopted as their ideals universal values such as freedom, democracy, human rights, and the rule of law that they have promoted together with the United Nations and because they find it hard to find other effective means than international law to realize these values in the world.

Contemporary international law came into existence alongside the formation of the international community, boasting a long history of development. However, it remains an immature legal norm, as if mirroring the current state of the international community. That is all the more reason why the United Nations, since its establishment, has sought through its General Assembly to encourage "the progressive development of international law and its codification" (UN Charter Article 13(1)) to "establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained" (Preamble) and to realize "in conformity with the principles of justice and international law" (Article 1(1)) the maintenance of international peace and security, jointly with the International Court of Justice, "the principal judicial organ of the United Nations" (Article 92). The United Nations has actually been the driving force for developing the contemporary international legal order in the post-WWII era. In this sense, it is no exaggeration to say that a challenge to the United Nations signifies a challenge to the contemporary international legal order. From this perspective, how can we evaluate the United Nations' efforts in response to the ongoing Russian invasion of Ukraine?

Based on the above line of thinking, this paper aims to argue the following two points. (It will not attempt an evaluation in the light of international law of the Russian invasion and relevant individual military actions since many discussions on this theme have already appeared in Japan.) 1 First, although much attention has been paid to the fact that the United Nation was prevented from adopting a Security Council resolution to address Russia's violation of the principle of the prohibition of the use of force, the United Nations has functioned as anticipated and condemned the Russian acts of aggression under the "Uniting for Peace" resolution. Second, through the implementation of measures against the Russian aggression taken by member states based on that resolution, the international legal order has reached a stage of further development toward realizing the common interests of the international community as a whole.

2. Significance of the "Uniting for Peace" Resolution in the UN Collective Security Regime: Possible Constraints on the Right of States to Self-Judgment

(1) The United Nations of the Five Powers

One of the primary purposes of the United Nations is to "take effective collective measures" (Article 1) necessary for maintaining "international peace and security" to "save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind" (Preamble to the UN Charter). As one of its principal organs (Article 7), the UN Security Council bears "primary responsibility for the maintenance of international peace and security" (Article 24(1)). In case the Security Council judges that international peace and security are endangered --- or in case it determines "the existence of any threat to the peace, breach of the peace, or act of aggression" ---, it can decide on the most powerful mode of collective measures or military coercive measures accompanied by the use of armed force (Articles 39 and 42). This decision of the Security Council is binding on the member states (Article 25), and such measures are also defined as an exception to Article 2(4) of the UN Charter that prohibits the use of armed force.

However, the Security Council's authority to exercise strong collective measures for the maintenance of international peace and security is subject to an affirmative vote of nine of the 15 Council members (Article 27(3)), including the concurring votes of the five permanent members (Article 23(1)). This mechanism called the "veto power" is based on the recognition of the drafters of the UN Charter that: international peace sought by the United Nations, can be realized only when the five powers, representing "the peoples of the united nations" (Preamble) who won the last World War, join forces (Articles 47, 106, etc.).

(2) Merits and Demerits of the "Inherent Right of Self-Defense"

Understandably, the drafters of the UN Charter did not think from the beginning that it would be easy to obtain the unanimity of the permanent members of the Security Council, as the antagonistic structure of the Cold War had already emerged. They authorized member states to act based on the "inherent right of individual or collective self-defense" under conventional general international law --- subject to reporting to the Security Council --- "until the Security Council has taken measures necessary to maintain international peace and security" (Article 51). In other words, if the Security Council is unable to fulfill its "primary responsibility" for the maintenance of international peace and security, a mechanism that allows each member state to confront an imminent crisis for international peace and security individually or collectively with force, by returning to the traditional world of general international law that has existed since before the formulation of the UN Charter, had been prepared as, so to speak, a complement to the collective security regime.

Nevertheless, it is a grave problem that even under the postwar UN Charter, the lack of unanimity of the five powers will allow traditional general international law to continue governing the use of armed force among member states. This means that a decentralized international legal order in which the freedom to resort to force is de facto granted to each member state is still valid, even if only partially. As is well known, in the pre-UN Charter era, the Kellogg–Briand Pact condemned recourse to war (Article 1); today it is understood that whatever use of force is banned by the same Pact. However, not only was the case of self-defense made an exception to the ban, but the Pact also emphasized that each nation "shall have powers to determine on its own whether or not it shall be necessary to resort to war for self-defense" (US government document). This means that each nation can judge the legality of initiating and carrying out a war of self-defense.

Thus, as long as conventional general international law maintains its validity as the "the inherent right of individual or collective self-defense" stipulated by Article 51 of the UN Charter, the UN collective security regime will not be free from the "fatal flaw" 2 that "war (or the right to war) can be easily abused by states." 3 Certainly, the UN Charter ensures, to a certain extent, a mechanism to curb the abuse of the right of self-defense, where a state that resorts to force shall subject itself to the external accountability procedure of reporting to the Security Council, thereby restricting its right of self-judgment. Yet, without the unanimity of the five powers, the Security Council could not judge the legality of the state's reported use of force in question.

(3) From the United Nations of the Five Powers to the United Nations of the International Community

The United Nations, which came into existence with these inherent limitations, subsequently made a series of efforts to establish another new mechanism to prevent member states from abusing their right of self-defense based on their judgment, under the circumstance that the five powers cannot reach a unanimous decision. The pivot of these efforts was a response to acts of aggression, which had been the most cardinal issue since the founding of the United Nations. An act of aggression is "the gravest of all crimes against peace and security throughout the world", and "for the realization of lasting peace and security it is indispensable that prompt united action be taken." 4 If, nevertheless, disagreement among the five powers prevents such action, how can the United Nations' purpose of maintaining international peace and security be achieved? Recognizing this concern during the Korean War, the General Assembly adopted the "Uniting for Peace" resolution in 1950, creating a framework to deter acts of aggression. 5

The resolution checks the Security Council from becoming dysfunctional by "reaffirming … the duty of the permanent members to … exercise restraint in the use of the veto" (Preamble) while empowering the General Assembly to make decisions for collective security on behalf of the Security Council. This has enabled the General Assembly to convene an emergency special session within 24 hours of the receipt of a request for such a session from the Security Council or member states and to make appropriate recommendations to member states for "collective measures" "when there appears" to be a threat to the peace, breach of the peace, or act of aggression. These measures include "in the case of a breach of the peace or act of aggression the use of armed force when necessary." Since a request for an emergency special session is made by a vote of the nine members of the Security Council or by a majority of member states, the United Nations can address emergencies through the General Assembly even if the Security Council cannot take action because of disagreement among the permanent members. This means that the General Assembly can now authoritatively pass judgment on the illegality of the use of force by a particular country to recommend collective measures, including the use of force, even if it, unlike the Security Council, cannot determine the existence of an act of aggression to call for military coercive measures.

Furthermore, in 1974 the General Assembly adopted by consensus a resolution on the definition of aggression because "it is desirable to formulate basic principles as guidance" (Preamble) to "simplify the determination of acts of aggression and the implementation of measures to suppress them" --- "the most serious and dangerous form of the illegal use of force." 6 Then, aggression was defined as "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations" (Article 1). The same resolution enumerates acts of aggression (Article 3). While stating that the determination of acts of aggression is left to the Security Council (Article 4), the General Assembly has subsequently declared at its emergency special sessions the existence of acts of aggression in the context of Article 39 of the UN Charter and the resolution on the definition of aggression. 7

Thus, the place for decision-making of the United Nations to collectively address acts of aggression shifted from the Security Council to the General Assembly. In evaluating the significance of this shift from the viewpoint of the contemporary international legal order, it must not be forgotten that the number of UN member states then had already reached around 150, up from 51 at the time of the founding of the United Nations. This signifies that the United Nations evolved in both name and substance from the "United Nations of the five powers" centering on the Security Council to the "United Nations of the international community" centering on the General Assembly, which is not bound by the will of the five powers. The significance of this change is prominently enormous, especially for international law, which until that time had been "fatally flawed" when it came to judging the legality of war or the use of force. Based on the General Assembly resolutions on the emergency special session and the definition of aggression, international law acquired a mechanism for all nations to rally and authoritatively determine whether a country's military action is a legitimate use of force based on the right of self-defense or an act of aggression --- "the most serious and dangerous form of the illegal use of force".

The cases that the United Nations judged aggressions by using this system of the emergency special session are only a few --- Israel's invasion of Lebanon (7th session, 1980-1982), 8 South Africa's occupation of Namibia (8th session, 1981), 9 and Israel's annexation of the Golan Heights (9th session, 1982). 10 The Soviet invasions of Hungary (2nd, 1956) and Afghanistan (6th, 1980) were ruled illegal armed interventions but not ruled aggressions. 11 This time, the UN collective security system, which developed over many years, has adequately addressed the recent Russian invasion of Ukraine and issued recommendations (non-legally binding, though). The General Assembly, representing the most authoritative will of the international community, judged that the ongoing Russian invasion is an act of aggression. A United Nations judgment of "the most serious and dangerous form of the illegal use of force", which had rarely been made before, has now been applied to a case involving a permanent member of the Security Council.

3. Legal Effects of Acts of Aggression --- An International Legal Framework to Realize the Common Interests of the International Community as a Whole

(1) Condemnation of acts of aggression by General Assembly Resolution ES-11/1

UN General Assembly Resolution ES-11/1, adopted on March 2, 2022, by 141 countries (5 against, 12 abstentions), is titled "Aggression against Ukraine." As the succinct and pertinent title suggests, the General Assembly deplored "in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter" and demanded straightforwardly "that the Russian Federation immediately cease its use of force against Ukraine", and "that the Russian Federation immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders." 12 This is in stark contrast to the General Assembly Resolution 68/262 of March 24, 2014, regarding the Russian annexation of Crimea, which only affirmed the principle of non-use of force without designating Russia. 13

The Resolution ES-11/1 was adopted at the eleventh emergency special session, requested by the Security Council pursuant to the Resolution 2623 in response to the situation that "the lack of unanimity of its permanent members … has prevented it (the Security Council) from exercising its primary responsibility for the maintenance of international peace and security." 14 The mechanism created in 1950 for the General Assembly to take the lead in UN collective security measures in the event of a Security Council veto has functioned as anticipated at this critical juncture that has shaken the contemporary international legal order.

In the process leading up to the adoption of the Resolution ES-11/1, Russia repeatedly emphasized that the right of self-defense under Article 51 of the UN Charter is the international legal basis for the "special military operation" that it began on February 24, 2022. 15 In launching the operation, President Putin stated, "… in accordance with Article 51 (chapter VII) of the Charter of the United Nations, I have decided to conduct a special military operation with the approval of the Federation Council of Russia and pursuant to the treaties on friendship and mutual assistance with the Donetsk People's Republic and the Lugansk People's Republic, as ratified by the Federal Assembly on February 22 this year." 16 The right of self-defense mentioned here seems to refer not only to an individual right of self-defense to protect Russia but also to a collective right of self-defense to protect the Donetsk People's Republic and the Luhansk People's Republic. First, concerning the individual right of self-defense, Putin's address underscores that the eastward expansion of NATO as "the so-called policy of containment of Russia" by the US-led West who "disregard international law" is "a real threat not just to our interests, but to the very existence of our State and its sovereignty." 17 Next, concerning the collective right of self-defense, the address states emphatically that "the nationalist fringe and neo-Nazis in Ukraine," who, with the support of NATO countries, "are also aspiring to possess nuclear weapons," are committing "a genocide against the millions of people" living in the Donetsk and Luhansk republics in the Donbas region, 18 who, like Crimea and Sevastopol, want to "reunite with Russia", and that both republics "appealed to Russia for help." 19

However, it is hard to admit that an armed attack on Russia, which is first and foremost necessary for it to exercise the right of individual self-defense, has occurred. Even if Russia believes, like the United States, that the presence of an imminent threat justifies the use of the individual right of self-defense, 20 NATO's eastward expansion alone would not constitute such a threat. It is not sufficient for Russia to say, "This is the red line that has been talked about many times: they have crossed it." 21 Consequently, it may be no use asserting, to meet requirements in international law for eliminating such a threat by force, that "[w]e simply have been left with no other way to defend Russia and our people than the one we are forced to use today." 22 Neither will it make sense to limit, to meet requirements for proportionality, the purpose of using force to "the demilitarization and de-Nazification of Ukraine, as well as the prosecution of those who have committed numerous bloody crimes against civilians, including citizens of the Russian Federation." 23 The declaration of an armed attack and request for assistance by an injured state are necessary preconditions for collective self-defense. But at present, the International Court of Justice states, in Order on the Request for the Indication of Provisional Measures of 16 March 2022, that it "is not in possession of evidence substantiating the allegation of the Russian Federation that genocide has been committed on Ukrainian territory", involving an armed attack against the people of the Donbas region. 24 As long as the existence of such genocide cannot be confirmed, it is difficult to recognize the status of the Donetsk and Luhansk People's Republics as independent states even under the so-called "remedial secession theory," 25 Rather, in this case, as condemned by the Resolution ES-11/1, Russia's recognition of these states should be considered as constituting so-called "premature recognition," i.e., an act of intervention that violates Ukraine's territorial integrity and sovereignty.

Admittedly, Russia swiftly reported to the Security Council the initiation of its special military operation, together with its reasons, following the procedures of Article 51 of the UN Charter, which member states are required to follow when exercising the right of self-defense. However, Russia's justification then was not persuasive. The fact that the General Assembly strongly condemned the Russian operation as "aggression in violation of Article 2(4) of the Charter" is nothing but an expression of the adamant will of the international community that it will never allow Russia to justify its use of force with such a shallow explanation.

(2) Will General Assembly Resolution ES-11/1 become a Keystone in the Development of the General International Legal Order?

The legal effect of the General Assembly resolution condemning Russia's acts of aggression, representing the will of the international community, extends beyond the UN collective security regime to the general international legal order. In the contemporary international legal order, featuring the protection of the common interests of the international community as a whole, acts of aggression have been considered not only to be subjected to UN military measures and individual criminal punishment but also to incur a responsibility that all states should bear for their serious breaches of peremptory norms, and a right to countermeasures by third states.

"[A] peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted" under general international law (Article 53 of the Vienna Convention on the Law of Treaties). Any treaty will be void if it conflicts with the norm, but according to Draft Articles on Responsibility of States for Internationally Wrongful Acts drafted by the International Law Commission, a subsidiary body of the General Assembly, a flagrant violation of that article creates the following three obligations for all states: 1. "States shall cooperate to bring to an end through lawful means any serious breach"; 2. "No State shall recognize as lawful a situation created by a serious breach"; 3. No state shall "render aid or assistance in maintaining that situation" (Article 41). These are called "aggravated state responsibility" as a system of responsibility to protect the common interests of the international community as a whole, different from the system of liability between the offending and injured states arising from usual violations of international law. 26

Furthermore, in 1970 following the establishment of the Convention on the Law of Treaties (1969) that recognized the existence of the above-mentioned peremptory norm, the International Court of Justice recognized --- from the perspective of a state's obligation to enforce a peremptory norm --- "the obligations of a State towards the international community as a whole" --- obligations erga omnes, distinct from those owed by a state to other states. 27 When a state violates this obligation, Draft Articles on Responsibility of States for Internationally Wrongful Acts admit that "[a]ny State other than an injured State is entitled to invoke the responsibility of" the offending state by resorting to countermeasures (Article 48(1)(b)). Countermeasures are the right of an injured state to resort to illegal acts to terminate the prior illegal acts of an offending state and to pursue its responsibility; or an institute under international law where the wrongfulness of countermeasures taken by an injured state is precluded (Article 22), as long as certain requirements (Articles 49-54) are met.

The prohibition of aggression, alongside the prohibition of genocide, has been positioned from the outset as a typical example of both peremptory norm and obligations erga omnes mentioned above. Consequently, the General Assembly's recent condemnation of Russia's acts of aggression against Ukraine, even if not required by Resolution ES-11/1, may be considered to incur, under general international law, an aggravated responsibility of all states for the termination of such acts, as well as the right of the victim state (Ukraine) and all third states to take countermeasures against Russia. It should be noted, however, that neither the aforementioned aggravated state responsibility nor the right of third states to take countermeasures has necessarily been recognized as an established institute, but rather as an evolving international legal framework to implement by states in the future.

Currently, the G7, the EU, and other developed countries are collectively imposing an unprecedented scale of intensive economic sanctions on Russia, perpetrating acts of aggression or the gravest violation of international law, as well as its supporter Belarus, while warning some countries, including China, not to support Russia. The series of sanctions, including the exclusion of leading Russian banks from the Society for Worldwide Interbank Financial Telecommunication (SWIFT); the freezing of assets of the Russian president, central banks, and key figures; restrictions on Russian imports and exports; and the revocation or withdrawal of Russia's MFN status, are problematic regarding compatibility with the WTO agreements, especially the WTO security exception provisions. In addition, these developed countries have provided Ukraine with weapons, goods, information, and other forms of assistance, which may raise problems in the future in relation to the principle of prohibition of the use of force and the obligations of neutrality. In justifying such a series of measures against aggression and requests to other countries for participation in those measures, will such frameworks as the right of third countries to take countermeasures and aggravated state responsibility be really applied by member states as a positive law norm independent from the General Assembly recommendations? In response to the Russian invasion of Ukraine --- the greatest crisis of the contemporary international legal order ---, as many as 141 countries have rallied to condemn Russia's invasion as acts of aggression or "the most serious and dangerous form of illegal use of force." The future legal institutionalization of the common interests of the international community as a whole will continue demanding our attention.


The international legal order is now being tested for its resilience in the face of an unprecedented challenge posed by the greatest crisis of the postwar era: one of the permanent members of the Security Council, owing primary responsibility for maintaining international peace and security, has perpetrated acts of aggression. What the ongoing Russian invasion of Ukraine has revealed, however, is that, for the present at least, the potential of the collective security regime that the United Nations has built up through a history of hardship is being exercised to the maximum extent thanks to solidarity among the overwhelming majority of member states. By strongly condemning and categorically rejecting Russia's acts of disruption of order as acts of aggression, the gravest violation of international law, the member states appear to have been determined to uphold the international legal order with the UN Charter at its nucleus.

We must remember that the prohibition of acts of aggression has been considered in contemporary international law as a peremptory norm to protect the common interests of the international community as a whole. Its violation entails special legal effects distinct from an ordinary violation of international law. First, any treaty that violates a peremptory norm becomes null and void. Moreover, in recent years, it has come to be understood that all states bear "aggravated state responsibility" to terminate a serious breach, and that member states other than the injured state may also take countermeasures against the offending state to hold it accountable for the breach. Even if such a framework cannot be said to have been established at this moment, the impact of the "Uniting for Peace" resolution on the formation of a future positive international law cannot be ignored. On the other hand, however, it should be noted that such strong solidarity of the international community is so far found only in association with the principle of the prohibition of the use of force to protect sovereignty, political independence, and territorial integrity of one country against acts of aggression by other countries. As the uneven responses of countries in the General Assembly regarding the suspension of Russia from the UN Human Rights Council demonstrate, 28 international integration is anything but easy when it comes to other matters than the principle of the prohibition of the use of force.

UN General Assembly Resolution ES-11/1, which condemned Russia's invasion of Ukraine as an act of aggression, is a recommendation and not legally binding on member states. However, undoubtedly an "international community" exists in the resolution, united by the solidarity of 141 countries. The term "international organization" refers not to an association but sometimes to "the general institutional framework of the international community"; it is "a concept that implies an orientation toward the organization and integration of the international community," such as "the legally organized state of relations among states." 29 The General Assembly, which convenes more than 190 nations, is the only place to realize the "international organization" for peace and security. The power of the General Assembly to represent the international community and to "encourage the progressive development and codification of international law" is now being tested.

(Associate Professor, National Defense Academy)

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