A Ukraine No-Fly Zone: Further Thoughts on Law and Policy

In a recent post, my friend and colleague, Professor Michael Schmitt set out some of the legal issues relating to the imposition of a no-fly zone over Ukraine. This post reemphasizes some of the points he raised. It also introduces a note of caution into the discussion on whether or not to impose a no-fly zone or to otherwise take steps which would or likely could result in an international armed conflict between some or all NATO member States and Russia in the absence of an attack on a NATO member State.

I am in substantial agreement with the legal analysis made by Professor Schmitt regarding the potential legal bases for implementing a no-fly zone. However, I want to reemphasize some points he made and add some points regarding the law. I also wish to address policy aspects of introducing a no-fly zone. I am not convinced of the necessity or wisdom of a course of action which once initiated, could very easily lead to a full-scale war which would have devastating and far-reaching consequences and cause much more human suffering than we are currently witnessing as a result of the manner in which Russia is conducting hostilities.

The Law

A no-fly zone is obviously an empty gesture and meaningless unless it is enforced. As Professor Schmitt points out, the clearest legal basis for a no-fly zone is a UN Security Council (UNSC) resolution under Chapter VII authorizing the imposition—and most importantly—the enforcement of such a zone. This would provide not only a legal basis for presence in Ukrainian airspace alongside that State’s consent, but more to the point would provide a clear basis to enforce such a zone on behalf of the international community. A UNSC resolution under Chapter VII authorizing the use of force against a State, in this case in order to enforce a no-fly zone, has the effect of not only providing an unequivocal legal basis for the use of force, but pursuant to Articles 24 and 25 of the UN Charter is a decision on behalf of the UN as a whole which binds all member States and would constitute an action taken on behalf of the international community as a whole. That makes it unique in that if such a resolution were feasible it would not be a measure taken by one State or group of States, but a measure on behalf of the entire international community.

But as Professor Schmitt also points out, there is no chance of such a UNSC resolution being adopted. Russia would certainly oppose the adoption of such a measure allowing for the enforcement of a no-fly zone over Ukraine, which on its own would be sufficient to prevent it being adopted. Additionally, China would almost certainly join Russia in opposing such a measure, and several other current members would also very probably abstain or even oppose any resolution which would likely lead to a military confrontation with a nuclear armed permanent member of the Council. As a result, the discussion of a possible resolution imposing a no-fly zone by the Security Council is purely academic, and the past examples where such authorization was forthcoming are of little relevance.

Professor Schmitt also discussed the possibility of a resolution under Uniting for Peace serving as a potential legal basis and dismissed it as unlikely. I would additionally emphasize that the possibility that the UN General Assembly resolution under Uniting for Peace which was recently adopted by a very large majority on 2 March could provide a legal basis for a no-fly zone, much less enforcement of such a zone, is in my opinion nihil. There is absolutely nothing in either the text of the resolution or the statements made by member States leading up to the adoption of that landmark resolution which can be construed as providing, implying, or even contemplating such an authorization.

Meanwhile, I fully agree with both Professors Schmitt and Heintschel von Heinegg that the General Assembly resolution in the present circumstances can arguably serve as a basis for “qualified neutrality” whereby the delivery of defensive arms to Ukraine and imposition of sanctions on Russia does not signify loss of non-belligerent status for the States which have taken such measures. But that is a far cry from an authorization to use force to enforce a no-fly zone or for any other purpose.

Professor Schmitt also referred to the consent of Ukraine as a basis for the imposition of a no-fly zone and pointed out that consent does not provide an independent legal basis for such action. As he states, a government can consent to the presence of foreign military forces on its territory which includes national airspace. Consent can also serve as a basis for the use of force to assist the host State in preventing the usurpation or overthrow of its authority by non-State actors such as autonomous armed groups. But the use of force by one or more States against one or more other States can only be based on either a mandate from the UN Security Council authorizing force for a specific purpose in the context of the maintenance or restoration of international peace and security, or in reaction to an (impending) armed attack on the basis of (collective) self-defense.

That brings us to the question of whether (collective) self-defense could serve as a basis for the imposition and enforcement of a no-fly zone. There is no doubt that Ukraine has been subjected to an ongoing armed attack and has the right under the UN Charter and customary international law to take all necessary and proportionate measures to repel the attack and forestall repeated attack from Russia. It also has the right to call for assistance and any State which elects to come to its assistance will become a co-belligerent alongside Ukraine and would be bound by the same principles of necessity, immediacy, and proportionality as apply to Ukraine in the exercise of self-defense, alongside the obligations arising from the law of armed conflict and other applicable international law. In short it would be lawful to engage in collective self-defense.

Political and Operational Considerations

Let there, however, be no mistake that co-belligerency brings a host of consequences with it, both of a legal nature and in diplomatic, political, and operational terms. As Professor Schmitt pointed out, force used by Russia against any State engaged in lawful self-defense would be unlawful in terms of the jus ad bellum since there is no self-defense against self-defense. However, the territory of the States which had become co-belligerents would no longer be inviolate and all persons and objects subject to attack located on the territory of a co-belligerent State would become lawful targets under the law of armed conflict. Any thought that Russia would be willing to have its aircraft shot down over Ukraine without itself taking action against NATO member States and retaliating with considerable force, both inside and outside Ukraine, is a fanciful delusion in my view.

The possibility of a robust reaction by Russia occurring, including attacks on NATO territory by airstrikes or missiles in the event of armed clashes over Ukraine is obvious. And while no one has a crystal ball to tell the future, the potential for such a conflict escalating into a full-scale war, possibly including the use of nuclear weapons, is real and would be increasingly likely the longer the conflict lasted and intensified as both parties strove to neutralize the threat posed by the other.

Moreover, the unity of the West, which until now has been almost unprecedented, would likely dissipate quickly as a result of intervention in the Ukraine conflict. It is highly doubtful that all NATO members would be willing to support or participate in such an intervention. This would mean that any action taken to enforce a no-fly zone would more than likely be undertaken by a coalition of those member States willing to engage in such an intervention on the side of Ukraine and not by the alliance as a whole.

Likewise, the very broad condemnation of Russia for its aggression against Ukraine within the wider international community would also likely begin to evaporate if individual NATO member States chose to widen the conflict by intervention, notwithstanding the legality as such of engaging in collective self-defense. Both of these consequences would only serve to weaken the unity of the Western alliance and the measures taken as a response to Russia’s aggression.

Finally, but by no means least important, the number of civilian victims of the conflict would only increase, perhaps exponentially, as a consequence of widening and intensifying the conflict. No one, including the beleaguered civilians in Ukraine, would be helped by heaping fuel on the fire.

A Plea

To conclude, I would urge clarity, consistency, and a careful weighing of consequences before stumbling into war. The West should continue to make clear it will not intervene directly in the conflict unless in the event of attack on a NATO member. It should continue providing all possible assistance to Ukraine short of direct intervention. It should build as solid and as broad an international coalition as possible to increase the diplomatic and economic pressure on Russia to halt the war. And it should make clear to the Russian population and the wider international audience that there is no conflict sought with Russia, but that this war is a war of aggression and is the result of a deliberate choice by Russia’s government, and not the result of any failing on the part of Ukraine or the policy of NATO since the end of the Cold War.

The plight of Ukraine’s population moves any right-thinking person deeply and the bravery of its population, armed forces, and leadership evokes unmitigated respect and admiration. But that was no less the case in 1956 when Hungary was overrun and later in 1968 when it was the turn of Czechoslovakia to be illegally invaded and occupied to “restore socialist achievements.” The West could do even less then to prevent those illegal uses of force occurring than it can now in supporting Ukraine. This support is very substantial and virtually unprecedented, including providing arms, sharing intelligence, imposing far-reaching sanctions, and providing sanctuary to millions of war refugees. The plea to do more and the moral repugnance felt against the naked aggression and solidarity with the victims should not blind us to the consequences of engaging in a course of action which could well lead to a much wider and more destructive war.  In short, be careful what you wish for because as the saying goes, “the road to hell is paved with good intentions.”

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Terry D. Gill is Professor Emeritus of Military Law at the University of Amsterdam, having held the chair from September 2001 until September 2020.

Photo credit: U.S. Air Force Senior Airman Dylan Murakami