Revisiting the Legal Effect of General Assembly Resolutions: Can an Authorising Competence for the Assembly be Grounded in the Assembly’s ‘Established Practice’, ‘Subsequent Practice’ or Customary International Law?

2020 ◽  
Author(s):  
Rebecca Barber
Keyword(s):  
International Law ◽  
Use Of Force ◽  
General Assembly ◽  
Vienna Convention ◽  
International Peace ◽  
Customary International Law ◽  
Humanitarian Crises ◽  
Legal Effect ◽  
Peace And Security ◽  
The Face

Abstract The Security Council’s recent intractability in the face of human rights and humanitarian crises has directed increased attention to the General Assembly’s secondary responsibility for international peace and security. Despite considerable academic attention to the issue, however, significant questions remain regarding the scope of the Assembly’s powers. One of the most significant of these questions is whether the Assembly may authorise conduct that would otherwise be unlawful. This question is important, because while there is good authority to support the proposition that the Assembly may recommend measures up to and including the use of force, if the Assembly is not also competent to authorise such measures, we are left with the unsatisfactory scenario in which the Assembly is legally competent to make recommendations that States may not legally be able to act upon. Drawing on the International Law Commission’s 2018 Draft Articles on Subsequent Agreement and Subsequent Practice, as well as those on Identification of Customary International Law, this article explores whether an authorising competence on the part of the General Assembly can be grounded in the Assembly’s practice. Specifically, it considers whether the Assembly’s practice of recommending and seemingly purporting to authorise coercive measures may amount to ‘established practice’, thus forming part of the ‘rules of the organisation’ within the meaning of the Vienna Convention on the Law of Treaties (VCLT); or alternatively if it can be considered ‘subsequent practice’ within the meaning of the VCLT; or alternatively it may attest to a rule of customary international law.

scholarly journals The Relationship between the Un Security Council and General Assembly in Matters of International Peace and Security

2016 ◽  
Author(s):  
Nigel D. White
Keyword(s):  
International Law ◽  
Security Council ◽  
Use Of Force ◽  
Responsibility To Protect ◽  
General Assembly ◽  
International Peace ◽  
Un Security Council ◽  
Peace And Security ◽  
Un General Assembly ◽  
The Relationship

This chapter examines the division of competence between the UN Security Council and the UN General Assembly concerning matters of international peace and security but placed within the context of the prohibition on the use of force. Although the Security Council can authorize the use of force by states, what is not clear is whether the General Assembly can recommend that states take military action. The chapter considers the conundrum faced by the United Nations with respect to an imminent and catastrophic use of force or act of egregious violence, when the UN Security Council is deadlocked because of the lack of agreement between the permanent members. It discusses the debate over the legality of the (in)famous Uniting for Peace Resolution of 1950 within the context of the emerging principle of a Responsibility to Protect (R2P) as well as within existing principles of international law.

scholarly journals Space Arms Control:Lex Lataand Currently Active Proposals

2015 ◽  
Vol 7 (1) ◽  
pp. 61-93 ◽  
Author(s):  
Jinyuan SU
Keyword(s):  
International Law ◽  
Outer Space ◽  
Arms Race ◽  
General Assembly ◽  
Research Development ◽  
International Peace ◽  
Primary Level ◽  
Peace And Security ◽  
Space Weapons ◽  
The Eu

AbstractThe inadequacy of existing international law in the prevention of an arms race in outer space leaves uncertainties to international peace and security. The resurgence of aggressive space programmes in the new millennium has intensified concerns over the possible degradation of outer space into an area of conflicts, prompting various initiatives aimed to fill this loophole. The year 2014 witnessed the release of the revised draft PPWT proposed by China and Russia at the CD, the fifth public edition of the ICoC promoted by the EU, and the adoption of the Resolution on “No first placement of weapons in outer space” in the General Assembly. This paper attempts to make a comparison between the three initiatives in terms of their postulated primary-level obligations, namely to what extent space weapons are prohibited on the chain of “research, development, testing, placement and use”, and the verification of compliance with these obligations.

scholarly journals The Legalizing and Legitimizing Function of UN General Assembly Resolutions

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 123-128
Author(s):  
Stefan Talmon
Keyword(s):  
Security Council ◽  
Use Of Force ◽  
General Assembly ◽  
International Peace ◽  
Member States ◽  
Peace And Security ◽  
Permanent Member ◽  
Un General Assembly ◽  
The Government

In his essay on the “Uniting for Peace” resolution, Larry Johnson suggests that the General Assembly can recommend non-use of force collective measures when the Security Council is blocked because of a permanent member casting a veto. He rightly points out that today there is no longer any need to use Uniting for Peace for such recommendations. The General Assembly can and has recommended so-called “voluntary sanctions” in cases where it found a threat to international peace and security to exist. For example, in resolution 2107 (XX) of December 21, 1965 concerning the Question of Territories under Portuguese Administration, the Assembly, making no reference to Uniting for Peace, urged “Member States to take the following measures, separately or collectively:(a)To break off diplomatic and consular relations with the Government of Portugal or refrain from establishing such relations;(b)To close their ports to all vessels flying the Portuguese flag or in the service of Portugal;(c)To prohibit their ships from entering any ports in Portugal and its colonial territories;(d)To refuse landing and transit facilities to all aircraft belonging to or in the service of the Government of Portugal and to companies registered under the laws of Portugal;(e)To boycott all trade with Portugal.”

scholarly journals Maritime Enforcement of United Nations Security Council Resolutions: Use of Force and Coercive Measures

2011 ◽  
Vol 26 (2) ◽  
pp. 235-261 ◽  
Author(s):  
ZOU Keyuan
Keyword(s):  
United Nations ◽  
International Law ◽  
Security Council ◽  
Korean Peninsula ◽  
Use Of Force ◽  
United Nations Security Council ◽  
International Peace ◽  
Primary Responsibility ◽  
Peace And Security ◽  
The United Nations

AbstractThe Charter of the United Nations designates the United Nations Security Council (UNSC) as one of the principal organs of the United Nations, assuming the “primary responsibility for the maintenance of international peace and security”. It has the power to determine the existence of any threat to the peace, breach of the peace, or act of aggression, to make recommendations, and decide what measures should be taken to maintain or restore international peace and security. This article addresses a number of issues concerning how the UNSC Resolutions are enforced at sea in accordance with applicable international law and makes special reference to the circumstances in East Asia, particularly the Korean Peninsula.

scholarly journals International Law and the War in Iraq

2003 ◽  
Vol 97 (3) ◽  
pp. 563-576 ◽  
Author(s):  
John Yoo
Keyword(s):  
United States ◽  
International Law ◽  
Security Council ◽  
Ad Hoc ◽  
Use Of Force ◽  
Armed Forces ◽  
The United States ◽  
International Peace ◽  
Peace And Security ◽  
President Bush

In his speech before the United Nations (UN) in September 2002, President George W. Bush characterized the possible use of force against Iraq as necessary to enforce existing Security Council resolutions and to eliminate a dangerous threat to international peace and security. The Security Council responded by adopting Resolution 1441, which found Iraq to be in material breach of previous Security Council resolutions and threatened serious consequences for further intransigence. When Iraq refused to fully comply with these resolutions, the United States led an ad hoc “coalition of the willing” that invaded Iraq on March 19,2003, quickly defeated Iraq’s armed forces, and ended the regime of Saddam Hussein and the Ba’ath party. On May 1,2003, President Bush announced that major combat operations in Iraq had ended. At the time of this writing, the United States has assumed the position of an occupying power that is responsible for rebuilding Iraq, as recognized by the Security Council in Resolution 1483.

scholarly journals What Does the Uniting for Peace Resolution Mean for the Role of the UN Security Council?

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 118-122
Author(s):  
Ieva Miluna
Keyword(s):  
International Law ◽  
Security Council ◽  
General Assembly ◽  
Collective Security ◽  
International Peace ◽  
Constant Control ◽  
Un Security Council ◽  
Peace And Security ◽  
Normative Role

The Uniting for Peace resolution together with the UN Charter prescribes a certain role for the General Assembly with regard to international peace and security. Larry Johnson addresses that role, but he does not consider a second question: how does the Uniting for Peace resolution affect the UN Security Council? The normative role of the Council is influenced not only by the Charter, but also by general international law. In this comment, I explore the normative role of the Council in fulfilling the Charter’s purpose to maintain international peace and security. I argue that the text of the Charter and the prior practice of both the Assembly and the Council help to determine the proper division of these organs’ respective tasks within the Charter system. I conclude that the Council alone exercises the constant control needed to enforce measures of collective security effectively, and that the Assembly is limited to recommending the consequences for states when threats or breaches of the peace occur.

scholarly journals The Apple Does Not Fall Far from the Tree: Self-Defence in the Context of State-Sponsored Terrorism

2018 ◽  
Vol 6 (1) ◽  
pp. 49
Author(s):  
Jackson Nyamuya Maogoto
Keyword(s):  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Use Of Force ◽  
International Criminal Law ◽  
General Assembly ◽  
Armed Attack ◽  
Customary International Law ◽  
Traditional Understanding ◽  
Self Defence

The Article will examine the parameters of state-sponsored terrorism through an evaluation of the tenets of state responsibility. Under customary international law, States are not perpetrators of terrorism because terrorism is a penal offence and states are not subjects of international criminal law. Nonetheless, General Assembly resolutions repeatedly condemn States that undertake and/or support acts of terrorism. It reflects the absolute prohibition on the use of force except in reaction to a conventional armed attack and the seeming metamorphosis and fluidity of the traditional understanding.

Part IV Treaty Application, 14 Treaty Amendments

2020 ◽  
Author(s):  
Brunnée Jutta
Keyword(s):  
International Law ◽  
Legal Issues ◽  
General Assembly ◽  
Vienna Convention ◽  
Customary International Law ◽  
Explicit Consent ◽  
Un General Assembly ◽  
State's Rights ◽  
Default Rules ◽  
International Law Commission

This chapter explores treaty amendments — an area where the practice regularly departs from the default rules of the 1969 Vienna Convention on the Law of Treaties (VCLT), including procedural mechanisms that affect amendments without requiring each party’s explicit consent. The Convention built on draft articles that the International Law Commission (ILC) submitted to the UN General Assembly in 1966. With some notable exceptions, the VCLT codified the existing customary international law on treaties. The topic of treaty amendment came to be included in the ILC’s draft articles only in 1964. Given the basic principle that a State’s rights under a treaty could not be modified without their consent, amendments were widely seen as raising political and diplomatic, rather than legal, issues.

scholarly journals Comment on Larry Johnson, “Uniting for Peace”

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 135-140 ◽  
Author(s):  
Henry Richardson
Keyword(s):  
Security Council ◽  
Use Of Force ◽  
General Analysis ◽  
General Assembly ◽  
International Peace ◽  
Member States ◽  
Un Security Council ◽  
Peace And Security ◽  
Permanent Member ◽  
A Current

Larry Johnson’s essay on the UN General Assembly’s Uniting for Peace resolution (UFP) is a useful general analysis of issues arising from UN Security Council Permanent Member veto-paralysis. His essay, which focuses on the text of the original Resolution, is directed at asking whether the UFP retains a current “useful purpose.” Relying on a text-centric interpretation of the presence or absence of subsequent invocations of the UFP, he concludes that no “useful purpose” remains, in part because evolved General Assembly authority has displaced the need to specifically invoke the UFP to make recommendations on certain issues of international peace and security. Johnson then asks whether, under the original UFP or subsequently, the Assembly may recommend to Member States “enforcement” uses of force, notwithstanding the prohibitions of Article 2(4) of the Charter. He finds Article 2(4) to be an absolute barrier to Assembly authority to recommend those measures, but not for “innovative and inventive non-use-of force measures.”

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