 morning, wherever you are, this is Latin American Directions. This is Nicholas Susman from Bogota. And we are here in our bi-weekly show with Moises Montiel-Mobollon. He's a lecturer and professor of international law in Universidad Panamericana from Mexico. He's an old friend of this show. And Moises, I think because of the present matters that I think everyone is witnessing, nowadays you are a worthy guest to help us clarify some things, right? So let's start with the Ukrainian situation, Moises. And let's go for the question that everyone is asking. Where is or where was the UN? And why, if the UN exists, is Russia inside of Ukraine? Right. And in the international law community, these have been some very interesting days. And that, you know, we're suddenly very hot. Everybody wants our take on what's going on. But yes, your question, Nicholasus, is the most important, the most pressing question. OK, why? I mean, what's the role of the United Nations in this? Why isn't it doing anything to actively stop Russia? And the answer is actually pretty simple because it was designed not to be able to stop Russia or the United States or one of the permanent five members. If you allow me just a brief digression into history, if you remember when the UN was created back in 1945, you had the five countries which are now the five permanent members. And they had been the victors of World War II. So upon them fell the task to act as guarantors of international peace and security in the United Nations system. So the reorganization and the system of collective peace and security that was designed by the Charter of the UN was designed giving some, let's say, leeway to these five guarantors for them to actually be able to stop any and all acts of aggression or threats to international peace and security. The problem is that after all this time, and we would have to check whether this was envisaged by the drafters of the UN Charter, that we would have one of the five guarantors, one of the permanent five, be the one actually doing the aggression. So just to summarize this, the UN was not designed or rather was designed not to be able to do anything. Should the aggressor be one of the five permanent members? The best example of this is their veto power when they have the possibility of blocking any resolution passing through the Security Council just by voting against it. Right, and that is an excellent segue to what happened this week. So for our viewers, the Security Council is the organ of the UN in charge of taking care of international peace and security, right? And it's like the most powerful organ of the UN and could decide binding measures to address this type of situations and so on. But as you just explained, the veto power prevents sometimes the council from addressing this type of situations. And I would say it is not an exceptional matter, but actually in this pressing issues, in this present situation, usually the veto power prevents the council from acting. So what option do we have if the council cannot act as it is expected to act? And what happened with the situation in the Security Council? Here, as you very correctly point out, the council's test, and I would like to introduce a word to what you said here. It has the primary responsibility to deal with issues pertaining to international peace and security. However, it is not the sole organ of the United Nations, which has the competence to deal with peace and security issues. So what we saw last week was the United States and Albania and around 60 or 70 other countries co-sponsoring a resolution basically qualifying the Russian actions in Ukraine as aggression, demanding that the invasion be stopped and that Russia fell back to its territory and also reaffirming the territorial integrity of Ukraine. So it starts setting up the legal and political landscape. What happened, Russia vetoed? It exercised its right to block any attempted resolution, any attempted decision. So the resolution fell through. I would like to bring the attention of our viewership to a tiny detail which is very, very interesting, which is Article 27, Section 3 of the Charter. Theoretically, Article 27.3 preclude in the event of a regional dispute. And this is, of course, qualified as a disputing in terms of security council practice. It says that the party, if one of the parties of the controversy is sitting at the security council, they should have abstained from voting. While we have seen some voluntary abstentions in the past, this article is normally not enforced. OK, say, well, yeah, enforced against the sitting party, especially when the controversy occurs in the territory of one of the five permanent members. And they typically, well, there are some instances. I believe that the United Kingdom has abstained a couple of times. I think France has abstained from voting on a dispute once, but never have either the United States nor Russia ever abstained from voting in a regional controversy. So what we have now is a deadlock for what we had. It's a deadlock in the security council. So the Russian representative pretty much made it clear that no resolution contrary to the Russian interest would pass in any voting. This would typically be the end of the road. However, there is a special procedure that was put up. I believe it was in the Korean War back in the 50s, which is called the uniting for peace procedure, which is actually what brought us today's vote on the resolution of the General Assembly, which actually has a pretty strong language and makes some political and legal determinations that we're not accustomed to see at the whole of the General Assembly. So in short, what the uniting for peace procedure does is that when the security council is deadlocked, because one of the permanent members has used their prerogatives to block a resolution, then the assembly may, as it were, steal the issue or the question from the security council and take a decision that could theoretically encompass measures under chapter six, which are measures that the security council can take that do not comport the use of force or even theoretically chapter seven, which are measures concerned with use of force against a member state. So it is in this context, and this is, I think, the 11th time that the uniting for peace procedure has been used. It was also used in the Suez Canal crisis. I believe the last time it was used was in 1982. I forget the particular incident. But well, we have seen it being used today actually since the session at the Security Council where the Russian representative blocked. The United States representative basically said, OK, we'll see you at the General Assembly. So since that point, we've been speculating, and it was not a specially hard guess, that they would be invoking this uniting for peace procedure. So what we have now is our resolution that enjoys an extreme degree of legitimacy. It was voted for by, I believe, it was 143 states in favor, a couple of abstentions, a couple of absent states also. And I think somewhere around eight votes against, including, of course, the Russian vote. But what is interesting about this is the speed and how resolute, I mean, how fast and how resolute the international community at the United Nations has been. I mean, we've seen things evolve at multilateral institutions with a speed that we're definitely not accustomed to. And apparently, the international community is effectively rallying behind Ukraine on this. And what we're seeing in the resolution adopted at the emergency session today is a pretty strong-worded resolution. Of course, it does not, a lot of risers suggest in any way the use of force. But this is as strong-worded as a Chapter 6 resolution gets at the Security Council. I mean, language such as demanding the immediate cease of force, demanding the withdrawal of Russian troops from Ukrainian territory, condemning the recognition of Russia, of the separatist republics that look at them, don't you ask? This is not something that we're used to and could be the basis or will probably be an interesting point for things to come, such as the hearing on provisional measures, the International Court of Justice that is scheduled to happen, I believe it is next Monday and Tuesday, the Ukraine applied before the ICJA to sue Russia. I think it was either Friday or Saturday. And also using a very brilliant legal hypothesis. And it also requested the Court to indicate provisional measures to the effect that Russia stopped its aggression and withdrawal to its possessions. So it is very likely that this resolution that was approved today that enjoys such a high level of legitimacy and authority as far as general assembly resolutions go will most likely be a very strong precedent or something to keep in mind for the International Court of Justice next week. Right, well, that's great, right? It sounds great. But then let's play a bit of devil's advocate here. And OK, we have 143 votes. The general assembly issued its decision. All international law is moving. What can we expect? Are we expecting someone to go and force Russia to get out? Are they going to comply? What's going to happen with all of these decisions? You know, Nicolas, I suppose that is, in the end, the single most important and only important question. So what do we do with this? OK, I've been given a lot of thought. And you know, evidently, there are political, economic, financial, social measures being put in place against Russia to dissuade them or to deter them from continuing their aggressive operation against Ukraine. What we are seeing on the other hand, and I just want to comment a little bit on the political and the geopolitical background before addressing the legal question, we're seeing a very comprehensive sanctions package levied by the United States, the European Union, basically designed to strangle the capacity of Russia to sustain this campaign for a long time. OK, we've already seen the rubble collapsing. OK, tripled quadrupled. It's the value of the dollar vis-à-vis the rubble. And I think that's starting to show also the fact that apparently the Russian war machinery did very, very bad. I mean, their calculations on how to fight this war, how to achieve the objectives were evidently not very good. OK, everyone expected that the mighty Red Army would be able to take Ukraine in a couple of days. And it has not been the case. OK, so now what we're seeing is an international community that is acting fast. It's acting very decidedly. OK, it's using international institutions. It's using international law to put pressure on Russia. However, and I think one of the most interesting features of what's going on is the decision of Ukraine to apply or to submit an application to the ICJ. And my reason for saying this is mostly political. OK, Russia so far has tried to justify its actions basically under the guise of preventive self-defense, which is actually a most preferred argument for the United States, for France, for the United Kingdom, when they want to go and cause some mischief in places where they shouldn't be, which is of course worthy of all the condemnation that Russia is getting right now. OK, but Russia is what Russia is doing is benefiting from the precedent from the precedent that the West has set throughout the last decade. And the other thing they're claiming is that the Kiev government, the central government of Ukraine, is committing genocide against ethnically Russian populations in the Donbass region, on the eastern part of Ukraine. So I think I'll be following with a lot of interest at the hearings the indication of provisional measures by the ICJ, because when you take a look at the whole issue of legal things that are moving the political, the economic things that are in motion, it is foreseeable to a certain degree I could be mistaken here that the court will actually find that it has prima facie jurisdiction. I mean that it is convinced that it could theoretically be seized of this matter and therefore indicate provisional measures to the effect that cessation of hostilities and withdrawal of Russian troops. And I think this is going to be a very interesting point to measure two things. One, whether Vladimir Putin is in fact a rational decision maker, or alternatively, whether Russia's assessment is that it can continue to sustain the war effort for a lot longer. Because the cost of this adventure of this aggression in Ukraine is definitely starting to add up to Russia going with the sanctions, especially the financial sanctions and the financial isolation that is being brought upon Russia. This, of course, will cost domestic constituencies within Russia, financial sectors, business sectors, to start to amp up the pressure against President Putin. And my guess is that Vladimir Putin, tyrannical as he may be, is in fact a rational decision maker. He's not doing this on a whim. And should the court indicate provisional measures, that would be a very dignified exit available to him. Because he basically, Russia claims that they are upholding the law in halting an alleged genocide against ethnically Russian populations in Ukraine. So if I follow the law and the International Court of Justice orders me to cease and basically to cease and desist, of course, I'm going to listen to the ICJ because I'm a law-abiding country. And it would actually allow Putin to withdraw and save face. And of course, this could be also levied in negotiations to try and maybe title down any more aggressive measures or any more heavier or more draconian measures that the West has in store for Russia. Alternatively, should Russia decide not to heed this potential provisional measures by the court, it will, of course, be found responsible doubly, first for violating the sovereignty and territorial integrity of Ukraine and also for their lack of compliance with a provisional measure indicated by the court. But my reading of that second scenario would be that Russia still thinks they can keep the war going on and achieve their objectives in a relatively short period of time. So it all comes down to political calculations. We can either see it as a graceful, a dignified exit for Putin that may not see his plans come into fruition anytime soon or at the cost that they had originally envisaged. Or should they decide not to mind the provisional measures of the court, I think we could take that as an indication that the Russian war machine is still going stronger. Right. Right. That is very interesting and surely something to follow. Well, next week I think talking of upcoming weeks for this changing context is too long. Now let's go to another question that I believe part of our audience has. What's going on with NATO, right? Because everyone expected NATO to react and to react in a proportional and armed manner because of this, right? So what happened with NATO? What's your reading of the situation? Right. I don't think anything's happened with NATO because it should not have happened. Right. I would like to start with a brief point here, which I think is crucial to understanding this. There's a narrative going around, mostly pushed around by Russian media that NATO wanted Ukraine to become a NATO member, OK? So the onus, that there's also basically NATO's doing, OK? Where when, in fact, it was the other way around. It was Ukraine wanting to join NATO on account of how threatened it feels by what Russia has been doing in the Donbas region since it annexed Crimea, I think it was back in 2018, OK? And started supporting the separatist movement, OK? And apparently NATO was not terribly eager to let Ukraine join because they're not dumb. They're not going to poke the bear literally by allowing the neighbor of Russia to join a military alliance that was designed at its core to contain Russia, OK? And I think the only point worth mentioning in favor of Russia is that this whole desire of Ukraine to join NATO is, in fact, a threat to Russian security. Ukraine has historically been a buffer zone between NATO and Russia. Ever since, of course, Ukraine became an independent country. So evidently, if we concede NATO as a military alliance designed to keep Russia in check, naturally all that's going on would perhaps call for a reaction on the part of NATO. However, we need to bear in mind that NATO will not attack unless one of its members is directly attacked, OK? That's what flies on the Article 5 of the Treaty, of the North Atlantic Treaty, which is the foundational charter of NATO, OK? And that condition that would then forcibly trigger an armed response by NATO has not yet been satisfied. There was a mess fire last week, I think, upon a Turkish ship in the Bosphorus. But the Russians were actually very quick to basically say, oh, sorry, that was totally a mess fire. I was not gunning for you. And there was also, I think, yesterday, I'm going to go ahead and hazard the guess. This was the Slovenian consulate. I don't know if it was in Kiev or in another city that was attacked. I don't think it was the direct objective of the attack, OK? But basically what NATO is playing at here or NATO's play here is to basically dissuade Russia by using financial means. But this is, I mean, right now we have different levels of analysis. We have the United States and Western Europe, which is basically the same to say NATO, OK? But they're acting using different hats. For example, the financial sanctions are coming presumably from this block of the US and the European Union, not so much NATO. Well, of course, this is all being coordinated through NATO. But unless a member of NATO is directly attacked, I don't foresee any military response on the part of NATO. And nor should it want to. Because NATO entering the hostilities directly would raise the threshold of possibility of nuclear escalation in a way that I don't think anyone wants. Right. Right. And then let's speak of the last actor I would say we're missing and now we complete the circle and we explain maybe why we're talking about Ukraine in the US and all of this in the Latin American show, right? So what's going on with Latin America and what's going on with the small countries, right? Because the history we've heard so far, the narrative is about big actors playing around. But I anticipate that maybe you don't agree with that version of the history, right? So what are your views? What is a role in this whole situation? You are correct. I do not agree at all with this perspective. For example, my new hero is the Kenyan ambassador to the United Nations. He delivered a couple of speeches last week at the seat of the Security Council, basically reaffirming the values of the rules-based order that we built after World War II. That is a stark reminder for everyone of why we built this normative system. In the specific context of Latin America, there was a declaration issued by the Organization of American States. I don't have the numbers, you know, the voting records of it right now. But I believe it was, if it was adopted, it must have been with somewhat of a majority, at least some 17 or 19 states, OK? I know it was to the effect of strongly condemning and qualifying as aggressive the behavior of Russia towards Ukraine. But, you know, then you have the usual bad apples, Venezuela, Nicaragua, Cuba, who are staunch defenders of Russia. OK, we've actually seen, for example, President Majuro of Venezuela openly and vocally supporting what they consider to be a rightful path of the Russian government to free Eastern Ukrainians from genocide, from crimes against humanity. Thankfully, I mean, these are voices in the minority. And, you know, it's the usual suspects. But I think that, you know, smaller countries, perhaps lesser powers, so to speak, although I really dislike that term. You know, we're actually what's making the international system move so fast and so resolutely. And that, you know, at the very least, we're providing the numbers, we're providing the political coordination and consultation so that this initiative is brought forward. For example, I mean, the United For Peace Procedure, this is the brainchild of the United States and Albania. OK, now we also have, and I'll close with this. You know, you didn't ask me about this, but now we have the prosecutor of the International Criminal Court asking the states for referrals so that he may open an investigation into what's going on right now at Ukraine without the need of asking the pretrial chamber for authorization. Lo and behold, we have a significant number of what we would call small states indulging in the petition of the prosecutor. Among them in Latin America, I think it was Costa Rica and Colombia, referring as state parties to the Rome Statute, referring the situation to the prosecutor, you know, so that we may expedite the opening of this. So I wouldn't underestimate the role of, you know, smaller nations in making things happen and making them happen faster and more decidedly. Absolutely. I think it couldn't agree more. So just to close a final reflection for our viewers, if you, at any point in this whole situation, have found yourself doubting about the role of international law, I would just invite you to think what would happen in the absence of international law and in the absence of small states cooperating in multilateral scenarios to do something about this crisis. This was Latin American Directions. Moises Mobileon, thank you so much. Thank you so much for watching Think Tech Hawaii. If you like what we do, please like us and click the subscribe button on YouTube and the follow button on Vimeo. You can also follow us on Facebook, Instagram, Twitter, and LinkedIn, and donate to us at thinktechhawaii.com. Mahalo.