By Bill Pearce

Bill Pearce QC was called to the bar in 1968 and has had a varied career as a barrister. He is currently retired and living in Victoria while continuing to serve as president for our Victoria chapter.

The General Assembly Jurisdiction to Recommend Measures to Address Peace and Security Situations

This paper attempts to summarize the powers of the General Assembly (GA) to make recommendations on matters of international peace and security including possible use of force.

 

Role of GA with respect to Peace and Security

The United Nations Charter is the operative document which defines the powers of both the Security Council (SC) and the GA. Art.24 (1) provides that UN Members confer on the SC “primary responsibility” for the maintenance of peace and security. The GA’s responsibility to maintain peace and security is secondary.

Art. 24(2) says that in discharging “these duties” i.e. the responsibility to maintain peace and security, the SC has specific powers in the Charter including Chapter VII (dealing with “Action” with respect to threats to peace or breaches of the peace including acts of aggression ) which provides in Art. 39 that the SC shall determine the existence of any threat to the peace and make recommendations or decide what measures shall be taken in accordance with Arts. 41 (referencing measures not including the use of armed force) and 42 (which deals with use of armed forces to maintain or restore international peace and security).

Article 14 provides that subject to Article 12, the GA “may recommend measures for the peaceful adjustment of any situation regardless of origin” including violations of the purposes and principles of the UN Charter. In the 1962 Certain Expenses Advisory Opinion of the ICJ they said the word “measures” in Art.14 “implies some kind of action”, and the “only limitation” which Art.14 imposes on the GA is the restriction in Art.12 namely that the Assembly should not recommend measures “while the Security Council is dealing with the same matter unless the Security Council requests it to do so”. This is a very broad discretion. 

The restriction is only temporal in nature and even that restriction seems to have melted away following the 2004 Wall Advisory Opinion of the ICJ when they reviewed the practice associated with that section. They first of all noted that initially the GA would not make recommendations “while the matter remained on the council’s agenda” then by 1963 it evolved to mean the GA would not act when the SC was “exercising the functions at this moment”. However the ICJ in Wall went further to note ‘there has been an increasing tendency over time for the General Assembly and the Security Council to deal in parallel with the same matter” which “accepted practice…is consistent with Article 12”, leaving in doubt as to the meaning of Article 12.

The GAs jurisdiction may also be invoked as contemplated in Article 12(2) and Art. 11(2) if the GA receives notification from the Secretary-General that the SC has ceased "to deal with such matters”.

Further, provided the SC is not dealing with the matter the GA could also deal with the matter if brought before it by any Member of the UN (Art. 11(2) and Art.35(1) & (3)) or even by a state not a Member of the UN (Art.35(2)).

There is another procedure outlined in GA Resolution 377 1950, Uniting for peace (U4P), which is often invoked when the SC is paralyzed from fulfilling its responsibilities by reason of the exercise of the veto power of one or more of the permanent members. The U4P was invoked in the recent case of Russia’s aggression in Ukraine. Let us look now at how the Ukraine matter came before the GA. On February 24th Russian troops entered Ukraine and Kyiv was bombed. On February the 25th 2022 a draft resolution was put to a vote at an emergency session of the SC and supported by 11 members but vetoed by Russia.

On February 27 the SC passed a resolution after taking into account the lack of unanimity of its permanent members “has prevented it from exercising its primary responsibility for the maintenance of international peace and security” (using the operative words of the U4P resolution) deciding “to call an emergency session of the General Assembly to examine the question” of aggression against Ukraine.

On March 1st the GA acted upon the request of the SC and passed a resolution almost identical to the draft SC resolution which failed. The resolution ends by adjourning the session to a date to be set by the President. Since Russia has failed to follow the directions of the resolution, the GA is now in a position, should it choose to do so, to recommend to its Members to take measures to enforce its demands pursuant to its power under Article 14. Those measures can include sanctions, embargoes, the suspension of diplomatic relations or the use of force.

Limits to GA Recommendations for Use of Force

Once you get over the hurdle as to when the GA can assume responsibility, we have to look at what the GA can or cannot do given the differences between the powers vested in the SC and the GA.

When use of force is contemplated the possible application of Art. 11(2) has to be considered. It says that the GA may make recommendations to the Members or to the SC, or both, on a matter relating to the maintenance of peace and security except that where on any question “action is necessary” it “shall be referred to the SC either… before or after discussion”. The ICJ has ruled in the 1962 Certain Expenses Advisory opinion that the word “action” in Art. 11(2) refers to “action” which is solely within the province of the SC under chapter VII (and as indicated in the title to that Chapter) and thus Art. 11(2) is inapplicable to GA recommendations it wishes to make including those that recommend the use of force.

When the Charter was created Chapter VII contemplated the creation of a permanent UN force which could be deployed by the SC, not the GA, and allow the SC to order directly the forces assigned to them to take whatever measures were considered appropriate. That force was never created. Further, and most importantly, all Members are required to join in and render mutual assistance in carrying out decided measures of the SC (Arts. 48 and 49). This requirement does not apply to decisions of the GA. The GA can only recommend, not require, Members states to take the desired ‘action’.

In summary, if the GA needs to be able to require state members to provide military assistance to carry out desired measures it must refer the matter to the SC to implement the measure. That said, it is my observation that the consequence to a member state for disobeying a resolution of the SC calling upon it to contribute military forces to address a situation is expulsion from the UN pursuant to Article 6 upon evidence showing the member “persistently” violated the principle in Article 2 para 2 that all Members fulfill the obligations assumed by them in the Charter ( which would include Article 48). I doubt that threat would be a large consideration in a state’s decision to contribute forces or otherwise.

Another important limitation on the GA’s power to recommend measures that include the use of force is that it must be done in a manner that does not create circumstances that would conflict with the requirement in Art.2(4) for all “Members” to refrain from the threat or use of force against the territorial integrity or political independence of any state”. In a situation of aggression such as we have in Ukraine where the invaded state would welcome any assistance, this poses no hurdle because Art. 51 justifies the use of force where it is employed as part of a “collective self-defence”, but where it becomes problematic is in a situation where a UN created force is needed, not in a situation of self defence, but in a situation where such a force is required to maintain the peace or to secure a peace where atrocity crimes (genocide, war crimes, ethnic cleansing, and crimes against humanity) are being committed, invoking the UN’s responsibility to protect (R2P).

While it is clear that the SC has the power to create such forces, from my reading of the Charter the GA is not empowered to create a UN force to carry out any mission (be it self defence, peacekeeping or protection of citizens). The GA only has power to “recommend” to the SC or UN Members to take desired measures.

However, Rebecca Barber, in A Survey of the General Assembly’s Competence to make Recommendations on Matters of International Peace and Security tells us that the GA has intervened in no less than 4 occasions to either create a UN force or in the case of Korea to carry on with an established UN force created by the SC with an expanded mandate.

One of the cases was the Suez crisis where the GA, thanks to former PM Lester B. Pearson ,created the first UN peacekeeping force with an initial mandate to ‘secure and maintain the peace’. Barber notes that all four cases shared a number of commonalities, a paralysed SC, a referral to the GA either explicitly, invoking U4P or using U4P language, or, implicitly by removing the matter from its agenda, and more importantly the consent of the parties affected.

It would appear that the GA has stepped up to the plate in times of need knowing that if its actions were challenged at the ICJ they might not past muster but not concerned about such possibilities knowing that the parties to the conflict were in full support.

Barber’s survey also tells us that the GA acted on its secondary responsibility in response to aggression in no less than 19 cases. She also observes that the GA typically in its resolutions has not delineated either the legal or the substantive basis for the intervention and are often “not consistent and are not solely guided by the Charter”, and that “the Assembly’s practice supports the widest possible interpretation of the Assembly’s powers”.

Summary

The GA has a broad jurisdiction to consider and make recommendations for measures to be taken to address peace and security matters and Barber’s survey tells us that in the past the GA has not been hesitant to act when the SC is not up to the task. Going forward, all is not lost when the SC fails to act. Consideration of GA measures to address such situations should be front and center more often.