• There is a lack of unanimity of the permanent members of the Security Council;

• Because of these the Security Council has failed to exercise its primary responsibility for the maintenance of international peace and security.

The ‘Uniting for Peace’ procedure gave rise to an intense debate between the West and the Socialist countries. The argument invoked by the Soviet Union was that Articles 10 to 14 of the Charter indicate that the Security Council and the General Assembly ‘cannot be substituted for one another, they merely complement each other’.[22] By invoking a wider interpretation of Article 12, the pro-West countries argued that when the Council was paralysed by the veto, it was not ‘functioning’ in the sense of that provision.[23] Therefore, the ‘Uniting for Peace’ resolution was valid. In response, the Soviet Union replied that operation of the veto was an integral function of the Security Council. Moreover, the proposed resolution would only require a procedural vote to transfer the matter from the Security Council to the General Assembly, while the special session called for under Article 20 needed a substantive vote. What is more, the Soviet Union argued that Article 11(2) does not allow the General Assembly to take coercive action, as this action falls solely within the ambit of the Security Council.[24]  

In the Certain Expenses case, the International Court of Justice explained the role of the General Assembly with regard to the maintenance of the peace. While the Court did not mention whether the General Assembly could recommend coercive action, it can be inferred from the Court’s view that the General Assembly is not barred from recommending enforcement action. In fact, the basis of the ‘Uniting for Peace’ resolution was to uphold the purposes and objectives of the United Nations, more precisely, the maintenance of international peace and security. Thus, when the Security Council fails to perform its primary responsibility to maintain international peace and security, the General Assembly – in which all member states participate - should clearly take up the responsibility. The ‘Uniting for Peace’ resolution represents an interpretation of Article 11(2) and 12 that has been accepted and acted upon by the members of the United Nations, including the Soviet Union and all other members originally opposed to the resolution.[25] The Charter itself declares that the General Assembly can make a recommendation on any important question, such as maintenance of international peace and security, with a two-thirds majority of the members present.[26] 

Yet, the legality of the ‘Uniting for Peace’ resolution may be questioned. The Charter under Article 2(4) explicitly prohibits any kind of threat of force or use of force against the political independence and the territorial integrity of any state. The only exceptions are action in self-defence under Article 51 and military action by the Security Council under Article 42. The question arises whether an authorization by the General Assembly to use force may lead to a violation of Article 2(4). In simplest terms, the exceptions to the ban on the use of force are those undertaken in legitimate self-defence and those authorized by the United Nations.[27] In the case of the ‘Uniting for Peace’ resolution, the General Assembly was only playing the role that should have been played by the Security Council. The inability of the Security Council to act caused this responsibility to be transferred to the General Assembly. By its authorization in the resolution the General Assembly did not, in fact, pose any threat or use of force against the territorial integrity or political independence of any state. In fact, the General Assembly tends to resist aggression that has threatened the world peace. For example, in the Korean conflict in 1950 the authorization of use of force was intended to help defend South Korea from the North Korean invasion; no offensive action was authorized. Therefore, it was only a self-defence measure. Article 51 of the Charter justifies collective self-defence.

In more recent times, the Uniting for Peace resolution procedure has been used to stop the United States from going to war in Iraq, a situation where two members of the Permanent Five had taken it upon themselves to launch unilateral use of force in disregard of the express will of the vast majority of the world community. The proposed Uniting for Peace resolution in this case was aimed, on the one hand, at stopping the war and, on the other, at protecting the force of law, which mandates that the use of force is only justified if authorized by the United Nations or in self-defence. Neither of these was present in the arguments for going to war in Iraq. The concept of pre-emptive self-defence is not found in the Charter.[28] According to Article 51 of the Charter, self-defence is justified only ‘… if an armed attack occurs against a member of the United Nations, and until the Security Council has taken measures necessary’. Therefore, until an ‘armed attack’ has occurred, any military action not authorized by the United Nations would lead to a war of aggression, the prevention of which is necessarily urgent to comply with the spirit of the Charter objective to ‘save the succeeding generations from the scourge of war’. A Uniting for Peace resolution could have strengthened the world voice to urge the United States and its allies to respect international law. Indeed, the United States Government was afraid of a possible General Assembly emergency session that might have invoked the Uniting for Peace resolution procedure.[29]

Ironically, the United States had played an important role in the adoption of Resolution 377. Interestingly, the first successful use of the resolution was by the United States during the Suez crisis in 1956. After Egypt nationalized the Suez Canal, Britain and France attacked and occupied parts of the canal. Cease-fire resolutions in the Security Council were quickly vetoed by Britain and France. The United States went to the General Assembly calling for a cease-fire and withdrawal of forces. An emergency session was held under the ‘Uniting for Peace’ resolution; the resolution proposed by the US and subsequently an even stronger resolution were passed in the General Assembly. In the face of these resolutions, it took less than a week for Britain and France to withdraw.

The ‘Uniting for Peace’ resolution procedure has been used ten times since its adoption in 1950. The second use of the resolution was also by the United States, to pressure the Soviet Union to cease its intervention in Hungary in 1956. The Soviet Union had used its veto to prevent the passage of anti-intervention resolutions in the Security Council. Again an emergency session of the General Assembly was called and the Soviet Union was ordered to stop its intervention in Hungary.

Michael Ratner and Jules Lobel put forward some important communications in the case of the US attack on Iraq in 2003. They urged the international community to call for an emergency session of the General Assembly to take action with regard to the threat to the peace posed by the US military action against Iraq, which had been taken without the explicit authority of the Security Council.[30] A Uniting for Peace resolution would clearly have operated in this case if one of the permanent members of the Security Council had exercised its veto, for such a resolution refers to the duty of the permanent members to seek unanimity as well as to exercise restraint in the use of the veto. The Uniting for Peace resolution procedure would also have applied if a permanent member had abstained, provided that the failure to seek unanimity and/or the abstention could be seen as meaning that the Security Council had failed to exercise its primary responsibility to maintain international peace and security because of a lack of unanimity of the permanent members. Whether the case of US-led invasion in Iraq fulfilled the necessary requirements for the invocation of the Uniting for Peace resolution procedure depends on the fulfilment of the preconditions stated above. It does, however, appear that the conditions were present: firstly, there was no doubt that there appeared to be a threat to the peace, breach of the peace, or act of aggression whether one considers the imminent invasion of Iraq by the US-led coalition forces or Iraq’s non-compliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles as recognized by the Security Council in resolution 1441 (2002); secondly, the impasse in the Security Council in which the United States, the United Kingdom and Spain, on the one hand, and France and Russia, on the other, proposed different solutions and in which it was clear that France would veto any resolution to use force in Iraq at the time meant there was a lack of unanimity among the permanent members; thirdly, the absence of any further resolution of the Security Council following resolution 1441 (2002), in light of the declared intentions of the United States and United Kingdom to be prepared to proceed with the use of force without a further resolution, meant that the Security Council had failed to exercise its primary responsibility of maintaining international peace and security.[31]

Even after the US had attacked Iraq, the initiative for the use of a Uniting for Peace resolution remained active. Both the twenty-two-member Arab Group at the United Nations, and the fifty-seven-member Organization of Islamic Conference (OIC), decided to introduce a resolution to convoke an emergency meeting of the General Assembly of the United Nations demanding an immediate end to the US invasion of Iraq. Their intention was to demonstrate the overwhelming international opposition to US unilateral warfare and to discuss the means to bring about a withdrawal of all foreign troops from Iraq. The Non-Aligned Movement of 115 nations, as well as several national governments, including Russia, China, Indonesia, and Jamaica, had also expressed their support for an emergency UN General Assembly session under the 1950 UN resolution 377.[32] The General Assembly could have achieved a number of purposes by adopting such a resolution. Specifically, it could have:[33]

• supported the intentions and strategies approved by the Security Council in resolution 1441 (2002);

• endorsed an increase in the seizure of UNMOVIC weapons inspectors and their equipment and facilities;

• set timelines for UNMOVIC inspectors to report progress;

• called upon Iraq to comply fully with the UNMOVIC weapons inspections regime;

• urged all member states to refrain from the threat or use of force against the territorial integrity or political independence of any state;

• declared that the use of force against Iraq was a violation of Article 2(4) of the United Nations Charter;

• condemned the use of force by any state against Iraq;

• called upon all states to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control; and

• requested the Secretary-General to keep member states informed as to the progress of the implementation of the resolution.

These steps could certainly have put pressure on the United States and the coalition led by it not to use force against Iraq in disregarded of, on the one hand, the rules of international law and, on the other, the popular view expressed in the most representative international body, i.e., the General Assembly of the United Nations. A resolution endorsed in the General Assembly by means of the Uniting for Peace procedure and authorizing, for example, resistance to an aggression provides moral and political weight when the question of legality or legitimacy is concerned.[34] Unfortunately, despite all the attempts, the clear statement made by the United States that ‘if you are not with us you are against us’, left hardly any options for the states that were willing to back a Uniting for Peace resolution.[35]

The General Assembly in Peacekeeping

Another, more significant innovation of the General Assembly was to establish the UN Peacekeeping Force. Peacekeeping forces – at least in the way in which they have developed – were not envisaged in the Charter.[36] However, the Charter provisions do not bar the United Nations from establishing such forces. Indeed, they are directed towards a Charter objective – peace. Peacekeeping forces were first deployed in 1956, when Israel, and later the United Kingdom and France, invaded Egypt due to its nationalization of the Suez Canal and the General Assembly authorized a peacekeeping force in order to restore peace in the region. Furthermore, the General Assembly did so when the vetoes of the United Kingdom and France had paralysed the Security Council. This course of events sparked a debate over whether the General Assembly may authorize enforcement measures or whether the authorization of a peacekeeping mission is necessarily intended as an enforcement measure.

In its advisory opinion in the Certain Expenses case, the ICJ clearly stated that Article 24 of the Charter gives the Security Council the primary responsibility for ensuring prompt and effective action for the maintenance of international peace and security. However, the General Assembly must also concern itself with international peace and security. Article 14 of the Charter authorizes the General Assembly to recommend measures for the peaceful adjustment of any situation. The word ‘measures’ implies some kind of action, and the only limitation which Article 14 imposes on the General Assembly is the restriction found in Article 12, namely, that the Assembly should not recommend measures while the Security Council is dealing with the same matter unless the Security Council requests the Assembly to do so.[37] Accordingly, the advisory opinion continues:

… whenever the General Assembly proceeds under Article 11 or under Article 14, the implementation of its recommendations for setting up commissions or other bodies involves organizational activity – action – in connection with the maintenance of international peace and security. Such implementation is a normal feature of functioning of the United Nations. Such committees, commissions or other bodies or individuals, constitute, in some cases, subsidiary organs established under the authority of Article 22 of the Charter. The functions of the General Assembly for which it may establish such subsidiary organs include, for example, investigation, observation and supervision, but the way in which such subsidiary organs are utilized depends on the consent of the state or states concerned.[38]

The fundamental question is therefore the division of functions between the Security Council and the General Assembly. The function of the General Assembly under Article 14 may lead to an ‘action’ once committees or commissions are set up for the implementation of its resolution.[39] This action may not, however, be a forceful one, unlike the ones the Security Council may initiate under Chapter VII of the Charter. For the implementation of an investigation, supervision or observation, the General Assembly must reach an agreement with the host state or states. Thus, ‘action’ taken by the General Assembly is still a recommendatory measure leaving final acceptance of the measure upon the willingness of the state or states to which it is addressed. For example, according to the General Assembly resolution 39(I) (12 December 1946), the member states of the UN recalled their ambassadors from Madrid, a measure which came close to breaking off diplomatic relations with Spain and which approached a coercive measure under Article 41 of the Charter.[40] The implementation of a measure recommended by the General Assembly depends upon whether the state or states are willing to comply with the relevant resolution; that is, it is an absolutely voluntary measure. The General Assembly may play an important role, however,  through the authorization of peacekeeping forces in separating adversaries, maintaining cease-fires, delivering humanitarian relief, helping refugees and displaced persons return to their homes, demobilizing combatants, and creating conditions that, for example, promote democracy and allow for free elections to be held. All these require ‘action’ in a sense, perhaps not similar to the forceful measures envisaged in Chapter VII but certainly ones that help reduce the threat to international peace. 

The Soviet Union opposed the idea of establishing the peacekeeping force known as the UN Emergency Force after the Suez crisis, even though it obviously wanted the United Kingdom and France out of the Suez. The invading forces and Egypt all welcomed the idea of such a force. The argument of the Soviet Union and its allies was that the Charter has very specific provisions for the use of force by the United Nations. They cited the agreements on UN forces required under Article 43 of the Charter. As the requirement of Article 43 was not followed in forming the UN Emergency Force, and as alternatives were not provided in the Charter, it was necessarily unlawful.[41] Yet the supporters of the UN peacekeeping forces argued that it was not only the Security Council that could mobilize the UN police; where the use of veto in the Security Council makes the initiative unsuccessful, the General Assembly can form such a body to maintain the peace. The idea of such peacekeeping forces was then supported by the majority in voting in the UN bodies. In the Certain Expenses case, the International Court of Justice decided all the relevant questions concerning the legality of the establishment of peacekeeping forces. In response to the argument made by the Soviet Union and France that only the Security Council could authorize and supervise peacekeeping activities, the Court stated that the Council’s responsibility for maintaining international peace and security is primary, not exclusive. It noted that the General Assembly is also concerned with such matters. The Assembly does not have to defer to the Security Council under Article 11(2) of the Charter unless enforcement action is necessary.[42] The Court also pointed out that the function of peacekeeping forces is not similar to that of the enforcement measures for which Article 43 conditions are to be met. The key point was that the forces (UNEF and ONUC)[43] were not authorized to take action against a state. Instead, they were sent with the consent of the states concerned. They were not authorized to act against the host state but, rather, were co-operating with it. In sum, the General Assembly may play an important role by establishing peacekeeping forces to mitigate escalation of a situation that could cause a serious threat to the peace if no such measure is taken.

Law-making in the General Assembly

The acts of the General Assembly are issued in the form of resolutions, declarations, or decisions. The terms ‘resolution’ and ‘declaration’ do not appear in the Charter although they are often used to express the opinions upheld by the General Assembly. As for their legal effect, they are all non-binding yet they carry special weight in the law-making process. For example, in its eighth preambular paragraph, the General Assembly resolution concerning the Review of the Role of International Court of Justice[44] states that the development of international law may be reflected, inter alia, in declarations and resolutions of the General Assembly, which may be taken into consideration by the International Court of Justice. It is General Assembly declarations that most often embrace legal principles of particular importance that may eventually be incorporated into binding legal documents through further action. For example, the Universal Declaration of Human Rights of 10 December 1948 is one of the fundamental declarations of the General Assembly that has since been transformed into a series of legally binding conventions, e.g., the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Thus, some General Assembly declarations[45] embody fundamental principles of law that cannot simply be ignored when a legal decision is being made.  

The Charter does not, however, prescribe any formula whereby General Assembly resolutions can be regarded as anything more than recommendations. In general international usage, a recommendation may describe a legal act which expresses a desire, but which is not binding on the addressees.[46] The legislative history of the Charter also confirms that the attempt to grant the General Assembly a law-making function was rejected.[47] Furthermore, the ICJ in the South-West Africa case decided that ‘Resolutions of the United Nations General Assembly … are not binding, but only recommendatory in character’.[48]

Nonetheless, it is not uncommon to argue that a General Assembly resolution is of fundamental importance as evidence of customary international law.[49] However, a resolution itself does not constitute customary rules of international law, nor does it create an international agreement despite the affirmative views expressed in favour of it by the members of the United Nations. A resolution may at best help to crystallize emerging customary international law or contribute to the formation of new customary international law. Indeed, as the Final ILA Report on Formation of Customary General International Law notes, General Assembly resolutions do not ipso facto create new rules of international law.[50] Similarly, the resolutions cannot be interpreted as the conclusion of an agreement under international law, because the provisions of the Charter state that states’ consent does not express an intention to enter into a legally binding obligation. In addition, the voting procedure in the General Assembly does not suggest any effect similar to that of Article 11 of the Vienna Convention on the Law of Treaties, which is a general rule of public international law.[51] 

According to Brownlie, resolutions relating to legal questions in the General Assembly may, however, constitute material sources of custom.[52] Moreover, a number of other scholars often consider General Assembly declarations, such as the Universal Declaration of Human Rights, to be customary international law.[53] A first test in determining whether General Assembly resolutions or declarations constitute customary rules of international law is to establish the existence of uniform and consistent state practice. Such practice has to be recognized by states as ‘obligatory’;[54] that is, an established opinio juris has to be found. In the North Sea Continental Shelf case, the International Court of Justice ruled on the strict requirement of proving an established opinio juris.[55] The focal question was: where the text of a General Assembly resolution expressly points out that the states are expressing an opinio juris with their vote, or where it is evident from the circumstances that the vote in the Assembly constitutes an opinio juris, does the resolution then necessarily constitute a rule of customary international law? Simma has argued that to a certain extent contemporary international communication and interaction expressed through the General Assembly resolution in the form of statements rather than actions qualify as evidence of opinio juris. However, voting behaviour alone is not sufficient to establish ‘state practice’ and would therefore remain outside the ambit of this extended understanding of the term. According to Simma, states must confirm their legal conviction through actual behaviour outside the UN.[56]

In sum, General Assembly resolutions do not constitute rules of international law in accordance with Article 38(1)(a) or Article 38(1)(b) of the Statute of International Court of Justice. The next consideration is whether the General Assembly resolutions represent general principles of law in the sense of Article 38(1)(c) of the Statute. The legislative history of the Statute contemplates that these general principles originate in harmony with national laws, which by way of analogy and comparison become a component of international law. However, General Assembly resolutions as such do not have any legislative character whatsoever: they can only form the basis for presuming the creation of general principles. Moreover, general principles as stated in Article 38(1)(c) of the Statute are only legally binding if they are expressly recognized by the UN member states.[57] 

On balance, General Assembly resolutions have provided strong evidence in law-making in general, as well as in the decision-making in the World Court. The resolutions have contributed to international treaty law by developing principles which are later often incorporated into international agreements. In addition to the two Covenants of 1966 mentioned above, one may cite the Outer Space Treaty of 1967, which is based on a declaration of the General Assembly dating from 1963 on the activities of states in the exploration and exploitation of outer space.[58] Similarly, the extension of the scope of humanitarian law to wars of national liberation by Article 2(4) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, has codified the substantive content of resolution 3103 (XXVIII).[59] General Assembly resolutions represent evidence of customary international law and also play an important role in the development of customary law. General Assembly resolutions form the basis upon which states may act properly and can accelerate the generation of norms of customary international law by promptly articulating new problems. Moreover, individual General Assembly resolutions have had significance in the judgments of the ICJ in determining customary international law.[60] For example, in its advisory opinions in the Namibia and Western Sahara cases, the ICJ referred to the Declaration on the Granting of Independence to Colonial Countries and Peoples[61] as the basis for the process of decolonization. In its decision in the Nicaragua case, the ICJ referred to the Declaration of Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations[62] as regards the principles of non-intervention.[63] Thus, the importance of at least some of the General Assembly resolutions is beyond any doubt. Some go a step further to argue that such special resolutions at some point may constitute a peremptory norm – jus cogens.[64]

CONCLUSION

The power and function of the General Assembly do not in anyway indicate that the competence of the Security Council is controlled by the Assembly. The Security Council enjoys a prerogative in the maintenance of international peace and security. However, the decision-making and the action of the Security Council are influenced to a large extent by the opinion expressed in the General Assembly. The Security Council relies on the General Assembly for the fulfilment of its primary function of maintaining the peace. Of course, implementing sanctions or military measures by the Security Council is not an easy choice unless an overwhelming majority expresses its support. In sum, although the General Assembly does not have the power to provide binding mechanism for peace enforcement, the indirect influence of the organ in practice is very much apparent, which ensures complementary role of the General Assembly in peace management.