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UN General Assembly's Evolving Role

Introduction

The UN General Assembly is one of the principal organs of the UN and it is also its biggest organ, with the entire membership of the UN represented here. The General Assembly passes resolutions that may have effect as decisions (under administrative functions); or some resolutions that are considered to be taken under its deliberative functions, which are recommendatory in nature. As the binding decisions of the General Assembly relate to the internal working of the UN, such as admissions of new members, budgetary decisions and elections to the ICJ, it may be open to question whether the General Assembly makes binding rules under general international law. Indeed, as pointed out by an author, “neither the United Nations nor any of its specialized agencies was conceived as a legislative body. Their Charter and governing instruments contemplated that their objectives would be carried out mainly through recommendations aimed at coordinating or harmonising the actions of the member states.” However, the UN bodies, especially the General Assembly, has emerged as legislative bodies.

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This essay considers this question in light of decisions of the ICJ as well as the effect of the General Assembly resolutions that have gone on to influence the making of general international law. The essay argues that General Assembly resolutions have now become an important source of international law.

UN General Assembly and its role in creating rules in international law

The UN General Assembly makes resolutions under various provisions in the UN Charter. The nature and effects of these resolutions vary depending upon the provision or power that the resolution is made under. However, the term ‘resolution’ is used in a generic sense, as pointed out by a commentator, wherein he says that the term resolution includes ‘recommendations’ as well as ‘decisions’, both of which have different effects. Recommendations are not binding in nature and General Assembly resolutions are generally recommendatory in nature and not binding on the members of the UN. The decisions of the General Assembly on the other hand are binding. Decisions may be ratione materiae, where the binding effect of GA decisions is limited to organizational matters and ratione personae, which relates to the entire sphere of the UN. Decisions of the General Assembly which are binding on the members are related to voting procedure, budget or admission of a member to the UN.

  1. Oscar Schachter, "United Nations Law." (1994) 88 (1) The American Journal of International Law 1, p.1.

When the General Assembly resolutions are considered for their effectiveness, the general position that is taken by many authors and commentators is on the question of their binding value; however, the problem with that approach is that it fails to consider other effects of General Assembly resolutions such as authorising effect; empowering or disempowering effect; and modal or causative effects of the General Assembly resolutions. These effects are discussed here to give a brief overview of the kinds of effects that may be created by General Assembly resolutions.

Authorising effect of resolutions are seen in those resolutions that create rights and reciprocal obligations. An example of an authorising resolution can be seen in the decision of the ICJ in the Certain Expenses case, where the court held that if the Security Council adopts a resolution for the maintenance of international peace and security and also incurs some financial obligations, these obligations will be regarded as “expenses of the Organization”. However, a relevant question may be asked as to whether General Assembly recommendations have an authorising effect. In the ICJ case of Admission to the United Nations, the question as to the binding nature of the General Assembly decision to admit a new member into the UN was considered by the court where the Security Council had not made a similar recommendation. The ICJ held that both the Security Council as well as the General Assembly decisions under Article 4(2) are indispensable. The ICJ has considered such decisions of the General Assembly to be authorising in nature, as by making such decisions, the General Assembly authorises the act. For instance, when the General Assembly passed a resolution to establish the UNEF (United Nations Emergency Force for the Middle East), the ICJ held that this was a recommendation in nature, with the legal effect of authorising the Secretary General to establish the UNEF.

  1. Marko Divac Öberg, "The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ" (2005) 16 (5) European Journal of International Law 879.
  2. South West Africa (Ethiopia v S Africa; Liberia v S Africa) (Second Phase) [1966] ICJ Rep 6.
  3. Competence of the General Assembly for the Admission of a State to the United Nations [1950] ICJ Rep 4.
  4. Ibid.

In the Application for Review of Judgement No. 333 of the United Nations Administrative Tribunal, the court considered the empowering effect of the General Assembly recommendations. The ICJ had to consider the contention that General Assembly does not have the power to establish an Administrative Tribunal, saying that “the contention that the General Assembly is inherently incapable of creating a tribunal competent to make decisions binding on itself cannot be accepted.” Therefore, in other words, the court was accepting that the General Assembly resolutions had empowering as well as disempowering effects as the General Assembly could also amend the powers of the Tribunal.

  1. Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter) [1962] ICJ Rep 151, [168].
  2. Competence of the General Assembly for the Admission of a State to the United Nations [1950] ICJ Rep 4, [7]-[8].
  3. Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter) [1962] ICJ Rep 151.
  4. ICJ Rep 1987, 4.
  5. Ibid, [11].

The ICJ has also considered the binding nature of General Assembly resolutions in the Namibia case, where the court, considering a determination of the General Assembly, held that “binding determination made by a competent organ of the United Nations to the effect that a situation is illegal cannot remain without consequence ... there is an obligation, especially upon Members of the United Nations, to bring that situation to an end.” This is the causative effect of the General Assembly determinations which see the members under certain obligations to carry out the terms of the determination.

The decisions of the ICJ discussed above indicate that the court considers that the resolutions of the General Assembly are capable of creating binding obligations and have the effects that can be categorized as authorising, empowering or disempowering or causative in nature.

The General Assembly resolutions are also capable of willfully influencing customary international law. This has been accepted by the ICJ as well in the following paragraph:

“The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule.”

  1. Ibid.
  2. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 [1971] ICJ Rep 16.
  3. Ibid, [54].

It is significant that the ICJ is saying that General Assembly decisions have normative value. Here, the fact that the decisions may not be binding is not relevant, what is relevant is that the General Assembly decisions have the capacity to create general international law. This can be done through General Assembly resolutions being able to establish opinio juris. This is discussed here to give an overview of the ability of the General Assembly resolutions to create norms in international law. However, it is important to note that the contrast in between Security Council and General Assembly as far as binding effect of resolutions is concerned. In Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), it was held that resolutions of the GA have no binding effect in the operational realm of international peace and security. This is so because under the UN Charter, the Security Council has been given the power the make resolutions for maintenance of peace and security. However, the General Assembly has managed to create norms in this area as well, due to the gap left by the Security Council in its inability to respond to situations affecting international peace and security. In such a situation the General Assembly has decided to take the measures required for responding to peace and security needs.

During the Cold War period, the Security Council often failed to use its powers under Chapter VII, due to the exercise of the veto powers by the permanent members of the Security Council. The period between 1945, to 1989, saw action by Security Council only in North Korea (1945), Southern Rhodesia (1965) and South Africa (1960), while there were many other instances which were not responded to by the Council. breach of peace. The General Assembly passed the Uniting for Peace Resolution in 1950 to fill this gap. The resolution was controversial because the UN Charter did not authorise the General Assembly to take action in response to peace and security related matters. The Security Council has the exclusive jurisdiction in this context. However, after the passage of the Uniting for Peace resolution in 1950, the General Assembly has used the resolution successfully for many peacekeeping and peace enforcement operations, including the UNEF in 1956 during the Suez war. The General Assembly passed a resolution to take action by establishing the UNEF while Security Council failed to take any action due to the vetoes by Britain and France.

  1. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports, 1996, [70].
  2. [1962] ICJ Rep 151.
  3. A Hehir, Humanitarian intervention: An introduction (London: Plagrave Macmillon 2013) 125.

General Assembly resolutions may not always be legally binding (except the resolutions made for administrative purposes), but these resolutions reflect the conscience of the world community and even reflect the opinio juris on a given international law question. In Nicaragua v. United States of America, the ICJ had determined that “opinio juris may, though with all due caution be deduced from, inter alia, the attitude of the parties and the attitude of the states towards certain General Assembly resolutions.” The General Assembly being the biggest organ of the UN, the vast majority of states voting in favour of resolution is indicative of the emerging or established opinio juris. The General Assembly has also been considered to be the most “legitimate organ to reach an opinio juris universalis or any matter of common concern for states that may or may not be followed by subsequent practice on their part.”

  1. E De Wet, The Chapter VII Powers of the United Nations Security Council (Oregon: Hart Publishing 2004) 1.
  2. D Zaum, “The Security Council, The General Assembly, and War : The Uniting for Peace Resolution” in V. Lowe, A. Roberts, J. Welsh, D. Zaun (Eds.),The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 ( Oxford: Oxford University Press 2010).
  3. [1986] I.C.J. 14, [188].
  4. Ibid, [99]-[100].
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The General Assembly has passed many resolutions which are considered to be important because the large number of states voting in favour of the resolution is considered to be evidence of state practice or state understanding of the norm. An example of such an important resolution is the Universal Declaration of Human Rights of 1948. However, can that evidentiary value equate to the norm making or creating value of the resolution? One view is that the states consenting to the resolution at the time of making it cannot later deny its acceptance of the norm. In other words, the consent given to the General Assembly resolution is an evidence of the large number of states’ consideration of the norm to be binding in general international law. However, this is also indicative of the evidentiary value of the General Assembly resolution and not the rule creating value.

Conclusion

  1. MN Shaw, International Law (5th edition, Cambridge: Cambridge University Press 2003) 82.
  2. Daniel Garcia-SanJose, “The Legislative Dynamics of International Law in Combating Terrorism, A Case Study” in Pablo Antonio-Fernandez Sanchez (ed.), International Legal Dimension of Terrorism (Martinus Nihoff Publishers, Boston 2009) 143.
  3. Obed Y Asamoah, The legal significance of the declarations of the General Assembly of the United Nations (Springer 2012).
  4. MN Shaw, International Law, supra note 20, p.82.

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