UN General Assembly: Resolution making powers
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 where the term resolution includes ‘recommendations’ and ‘decisions’.[1] GA resolutions are generally recommendatory in nature and they are not binding on the members.[2] The decisions of the General Assembly may also 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.
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, that approach fails to consider other effects of General Assembly resolutions such as authorising effect; empowering or disempowering effect; and modal effects of the General Assembly resolutions.
The General Assembly resolutions are capable of willfully influencing customary international law. This has been accepted by the International Court of Justice 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 opinion 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.
During the Cold War period, the inability of the UNSC to use powers under Chapter VII, due to the stalemate between the permanent members, meant that action was not taken even when necessary.[7] In fact, since the establishment of the UN in 1945, to the end of the Cold War period in 1989, there are only three instances of action under Chapter VII. These include the action against North Korea (1945), Southern Rhodesia (1965) and South Africa (1960). Very early in the establishment of the UN, the political ramifications of the veto power in the UNSC were felt as impediments to action when there was threat to peace or actual breach of peace.
For this reason, the General Assembly (UNGA), passed the Uniting for Peace Resolution in 1950. Although, the passage of this resolution was controversial as it was seen as an interference with what otherwise was the exclusive jurisdiction of the UNSC, that is maintenance of peace and security, the UNGA has used the resolution successfully for peacekeeping and peace enforcement operations. The most groundbreaking exercise of this power was the UNEF (United Nations Emergency Force) in 1956 during the Suez war, where the UNGA took the initiative due to UNSC’s inability to take any action due to the French and the British vetoes.[8] Thus, it is evident that the UNSC has not always been successful in taking decisive Chapter VII action leading the UNGA to fill the gaps left by the UNSC.
GA resolutions such as the ones mentioned here, may not be legally binding, but they reflect the thinking of the world community and as such form an important part of the developing jus cogens in international law. In some situations, General Assembly resolutions even reflect the opinio juris on a given international law question.
In any case, the General Assembly as the largest organ of the United Nations, reflects the collective thinking of the world.
In Nicaragua v. United States of America [1986] I.C.J. 14, para 188 at www.ilsa.org/jessup/ jessup08/basicmats/icjnicaragua.pdf (visited on 15/6/15), 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.’
In Nuclear Weapons case para 70, the ICJ had given its advisory opinion 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 an opinio juris.
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 143 (Martinus Nihoff Publishers, Boston, 2009) stating: “The GA is by its very nature 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.”
Resolutions of the UNGA have no binding effect in the operational realm of international peace and security.[9]
he UDHR is a General Assembly resolution that has come to acquire the position of jus cogens in international law. As such, the rights contained in this resolution are considered to be binding on all states. ICCPR is a multilateral treaty on civil and political rights, under the aegis of the UN, and India is a signatory to it.
General Assembly deliberative resolutions are not binding, however they are made by an overwhelming majority of the states of the world and usually reflect on situations that have relevance to the world in general, in this case detention without judicial oversight.
In such a situation the General Assembly may also be authorized to take such action under the Uniting for Peace Resolution.
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