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Max Planck Encyclopedia of Public International Law [MPEPIL]

Uniting for Peace Resolution (1950)

Christina Binder

Subject(s):
International organizations, practice and procedure — UN General Assembly — Collective security — International peace and security — Peace keeping

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Notion

1.  Description

United Nations General Assembly Resolution 377 (V) (‘Uniting for Peace’ UNGA Res 377 [V] [3 November 1950] UN Doc A/1775, 10 [‘Uniting for Peace Resolution’]) was adopted by the United Nations, General Assembly on 3 November 1950 by 52 votes to five, with two abstentions (International Organizations or Institutions, Secondary Law). The resolution abandoned the United Nations Security Council['s] sole competence to act within the framework of the United Nations (UN) system of collective security and empowered the General Assembly to intervene in cases of international conflict.

2.  Content

The Uniting for Peace Resolution consists of three individual resolutions (A, B and C). Resolution 377 A (V) (UNGA Res 377 A [V] [3 November 1950] UN Doc A/1775, 10) has a long preamble and five substantive parts: A, B, C, D and E. The resolution’s heart is contained in Part A UNGA Resolution 377 A (V):

The General Assembly

1.  Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.

In addition, Part A UNGA Resolution 377 A (V) stipulates that emergency special sessions of the General Assembly can be convened when the General Assembly is not in session, upon the request of seven members of the Security Council (at the time the necessary majority for procedural decisions which is now nine votes) or by a simple majority vote in the General Assembly (International Organizations or Institutions, Voting Rules and Procedures).

The less important parts of UNGA Resolution 377 A (V) establish a Peace Observation Commission to observe and report on the situation in areas where international tension exists (Part B), and a Collective Measures Committee to study and to report on methods which might be used to maintain and strengthen international peace and security (Part D). These institutions never achieved practical relevance. Part C recommends Member States to maintain within their national military forces units that can be utilized as UN forces. Part E stresses the pre-conditions for an enduring peace, namely the observance of all the purposes and principles established in the United Nations Charter (‘UN Charter’; United Nations, Purposes and Principles) and in particular the importance of respect for human rights.

UNGA Resolutions 377 B (V) (UNGA Res 377 B [V] [3 November 1950] UN Doc A/1775, 12) and 377 C (V) (UNGA Res 377 C [V] [3 November 1950] UN Doc A/1775, 12) contain a recommendation to the Security Council and its permanent members respectively to increase their efforts for effective measures against all threats to international peace and security.

3.  Conditions for Action

The General Assembly is competent to take action in accordance with Part A UNGA Resolution 377 A (V) if the Security Council has failed in its efforts to exercise its primary responsibility for the maintenance of international peace and security as result of a negative vote of one or more permanent members (Veto). Action by the General Assembly is not permissible if the permanent members jointly decide to stay inactive with regard to a certain conflict. In addition, the resolution authorizes the General Assembly only to act in a situation which falls under chapter VII UN Charter where there is a threat to peace (Peace, Threat to), breach of peace (Peace, Breach of), or act of aggression.

B.  Historical Background to the Resolution

UNGA Resolution 377 (V) was adopted against the background of the Korea crisis (see also Korean War [1950–53]). During this crisis, the Security Council had initially been able to act decisively since the Union of Soviet Socialist Republics (‘USSR’) was absent in June/July 1950 to protest against China[‘s] representation by the regime in Taiwan. In August 1950, after the return of the Soviet representative to the Security Council, the USSR exercised its veto power and impeded all further resolutions.

The western powers under the leadership of the United States intended to fill the existing vacuum through action taken by the General Assembly. At the time, the General Assembly appeared as the most appropriate forum to make such decisions due to the secure majority of Western States represented there. After intense negotiations, the Uniting for Peace Resolution was adopted on 3 November 1950 against the resistance of the States of the Eastern Block.

C.  Results of the Resolution

1.  Practice

Practice subsequent to the resolution is rather limited and not always entirely clear as the relevant resolutions do not always cite the Uniting for Peace Resolution as their legal basis. Since 1950, ten emergency special sessions have been convened in accordance with the conditions stipulated in UNGA Resolution 377 (V). Two of these, emergency special sessions seven and ten, were repeatedly adjourned. One crisis (Bangladesh) was addressed during a regular session of the General Assembly.

Organ and instrument convening the Emergency Special Session (‘ES’)

Subject-matter

Resolutions adopted by the United Nations General Assembly (‘GA’)

1st ES: UNSC Res 119 (31 October 1956) UN Doc S/RES/119

Middle East (Suez Canal crisis)

UNGA Res 997 (ES-I) (2 November 1956) UN Doc A/3354, 2; UNGA Res 998 (ES-I) (4 November 1956) UN Doc A/3354, 2; UNGA Res 999 (ES-I) (4 November 1956) UN Doc A/3354, 2; UNGA Res 1000 (ES-I) (5 November 1956) UN Doc A/3354, 2; UNGA Res 1001 (ES-I) (7 November 1956) UN Doc A/3354, 3; UNGA Res 1002 (ES-I) (7 November 1956) UN Doc A/3354, 3; UNGA Res 1003 (ES-I) (10 November 1956) UN Doc A/3354, 4

2nd ES: UNSC Res 120 (4 November 1956) UN Doc S/RES/120

Soviet intervention in Hungary

UNGA Res 1004 (ES-II) (4 November 1956) UN Doc A/3355, 2; UNGA Res 1005 (ES-II) (9 November 1956) UN Doc A/3355, 2; UNGA Res 1006 (ES-II) (9 November 1956) UN Doc A/3355, 3; UNGA Res 1007 (ES-II) (9 November 1956) UN Doc A/3355, 3; UNGA Res 1008 (ES-II) (10 November 1956) UN Doc A/3355, 3

3rd ES: UNSC Res 129 (7 August 1958) UN Doc S/RES/129

Middle East (Lebanese crisis)

UNGA Res 1237 (ES-III) (21 August 1958) UN Doc A/3905, 1

4th ES: UNSC Res 157 (17 September 1960) UN Doc S/RES/157

Congo

UNGA Res 1474 (ES-IV) (20 September 1960) UN Doc A/4510, 1

5th ES: Secretary-General (United Nations, Secretary-General summons the General Assembly under Rule 9 (b) Rules of Procedure of the General Assembly upon request of the Soviet Union (UNDoc A/6717) (1967)

Outbreak of hostilities in the Middle East, Status of the City of Jerusalem

UNGA Res 2252 (ES-V) (4 July 1967) UN Doc A/6657, 3; UNGA Res 2253 (ES-V) (4 July 1967) UN Doc A/6657, 4; UNGA Res 2254 (ES-V) (14 July 1967) UN Doc A/6657, 4; UNGA Res 2255 (ES-V) (17 July 1967) UN Doc A/6657, 4; UNGA Res 2256 (ES-V) (21 July 1967) UN Doc A/6657, 4; UNGA Res 2257 (ES-V) (18 September 1967) UN Doc A/6657, 4

UNSC Res 303 (6 December 1971) UN Doc S/RES/303 (referral to a regular session of the General Assembly)

India and Pakistan dispute over Bangladesh

UNGA Res 2793 (XXVI) (7 December 1971) UN Doc A/8429, 3

6th ES: UNSC Res 462 (9 January 1980) UN Doc S/RES/462

Soviet Union’s armed intervention in Afghanistan

UNGA Res ES-6/2 (14 January 1980) UN Doc A/ES-6/7, 2

7th ES: General Assembly convened by majority vote upon the request of Senegal (1980)

Palestine

UNGA Res ES-7/2 (29 July 1980) UN Doc A/ES-7/14, 3; UNGA Res ES-7/3 (29 July 1980) UN Doc A/ES-7/14, 4; UNGA Res ES-7/4 (28 April 1982) UN Doc A/ES-7/14/Rev.1, 4; UNGA Res ES-7/5 (26 June 1982) UN Doc A/ES-7/14/Rev.1, 7; UNGA Res ES-7/6 (19 August 1982) UN Doc A/ES-7/14/Rev.1, 9; UNGA Res ES-7/7 (19 August 1982) UN Doc A/ES-7/14/Rev.1, 12; UNGA Res ES-7/8 (19 August 1982) UN Doc A/ES-7/14/Rev.1, 13; UNGA Res ES-7/9 (24 September 1982) UN Doc A/ES-7/14/Rev.1, 13

8th ES: General Assembly convened by majority vote upon the request of Zimbabwe (1981)

South Africa’s illegal occupation of Namibia

UNGA Res ES-8/2 (14 September 1981) UN Doc A/ES-8/13

9th ES: UNSC Res 500 (28 January 1982) UN Doc S/RES/500

Situation in the occupied Arab territories and the Golan heights

UNGA Res ES-9/1 (15 February 1982) UN Doc A/ES-9/7, 3

10th ES: General Assembly convened by majority vote upon the request of Qatar (1997)

Israeli actions in occupied East Jerusalem and the rest of the occupied Palestinian territories

UNGA Res ES-10/2 (25 April 1997) UN Doc A/RES/ES-10/2; UNGA Res ES-10/3 (15 July 1997) UN Doc A/RES/ES-10/3; UNGA Res ES-10/4 (13 November 1997) UN Doc A/RES/ES-10/4; UNGA Res ES-10/5 (17 March 1998) UN Doc A/RES/ES-10/5; UNGA Res ES-10/6 (9 February 1999) UN Doc A/RES/ES-10/6; UNGA Res ES-10/7 (20 October 2000) UN Doc A/RES/ES-10/7; UNGA Res ES-10/8 (20 December 2001) UN Doc A/RES/ES-10/8; UNGA Res ES-10/9 (20 December 2001) UN Doc A/RES/ES-10/9; UNGA Res ES-10/10 (7 May 2002) UN Doc A/RES/ES-10/10; UNGA Res ES-10/11 (5 August 2002) UN Doc A/RES/ES-10/11; UNGA Res ES-10/12 (19 September 2003) UN Doc A/RES/ES-10/12; UNGA Res ES-10/13 (21 October 2003) UN Doc A/RES/ES-10/13; UNGA Res ES-10/14 (8 December 2003) UN Doc A/RES/ES-10/14; UNGA Res ES-10/15 (20 July 2004) UN Doc A/RES/ES-10/15; UNGA Res ES-10/16 (17 November 2006) UN Doc A/RES/ES-10/16; UNGA Res ES 10/17 (15 December 2006) UN Doc A/RES/ES-10/17; UNGA Res ES 10/18 (16 January 2009) UN Doc A/RES/ES-10/18.; UNGA Res ES-10/16 (17 November 2006) UN Doc A/RES/ES-10/16; UNGA Res ES 10/17 (15 December 2006) UN Doc A/RES/ES-10/17; UNGA Res ES 10/18 (16 January 2009) UN Doc A/RES/ES-10/18.

2.  Recommended Measures on the Basis of the Resolution

10  Doctrine is divided whether UNGA Resolution 377 (V) has ever been used as a legal basis to recommend effective enforcement action. When the General Assembly recommended coercive measures during the Korea crisis (UNGA Res 498 [V] [1 February 1951] A/177/Add.1, 1; UNGA Res 500 [V] [18 May 1951] A/177/Add.1, 2) their basis in UNGA Resolution 377 (V) was questioned, since no mention of the Uniting for Peace Resolution was made in the respective resolutions and the issue had been removed from the Security Council’s agenda before their adoption. On the other hand, both resolutions clearly questioned the Security Council’s exclusive prerogative to decide upon enforcement measures and may therefore be considered to have been taken within the spirit of the Uniting for Peace Resolution. In later conflict situations, the idea of collective security, as practised in the Korea crisis, has not been applied.

11  In subsequent resolutions, the General Assembly called upon the parties to put an end to an illegal situation in violation of chapter VII UN Charter, to withdraw their forces and to end the hostilities (eg UNGA Res 997 [ES-I] [2 November 1956] UN Doc A/3354, 2; UNGA Res 2793 [XXVI] [7 December 1971] UN Doc A/8429). Once, in the Suez Canal crisis, the General Assembly asked the United Nations, Secretary-General to establish a peacekeeping force (United Nations Emergency Force; Peacekeeping Forces; UNGA Res 1000 [ES-I] [5 November 1956] UN Doc A/3354, 2). Furthermore, UN Member States were requested to deliver humanitarian assistance (UNGA Res 1004 [ES-II] [4 November 1956] UN Doc A/3355, 2; UNGA Res ES-6/2 [14 January 1980] UN Doc A/ES-6/7, 2; UNGA Res ES-7/5 [26 June 1982] UN Doc A/ES-7/14/Rev.1, 7) or called upon to stop the provision of military aid (UNGA Res 997 [ES-I] [2 November 1956] UN Doc A/3354, 2; UNGA Res 1474 [ES-IV] [20 September 1960] UN Doc A/4510, 1; UNGA Res ES-9/1 [15 February 1982] UN Doc A/ES-9/7, 3). Quite exceptional are more far reaching measures such as the General Assembly’s call upon Member States to isolate Israel against the background of its continuing occupation of the Arab territories (UNGA Res ES-9/1 [15 February 1982] UN Doc A/ES-9/7, 3; Israel, Occupied Territories). The General Assembly was most outspoken in the case of South Africa. When condemning the illegal occupation of Namibia, the General Assembly called upon all States ‘in view of the threat to international peace and security posed by South Africa, to impose against that country comprehensive mandatory sanctions in accordance with the provisions of the Charter’ and urged all States to cease dealings with South Africa in order to totally isolate it’ (UNGA Res ES-8/2 [14 September 1981] UN Doc A/ES-8/13 paras 13–14). These recommendations may be seen in analogy to sanctions not involving the use of force as may be imposed by the Security Council under Art. 41 UN Charter (Use of Force, Prohibition of). Finally, in its 10th emergency special session, the General Assembly inter alia referred a matter to the International Court of Justice (ICJ). It asked the Court to prepare an advisory opinion on the legal consequences of the construction of a wall in the occupied Palestinian territory (UNGA Res ES-10/14 [8 December 2003] UN Doc A/RES/ES-10/14) and called upon Member States to act in accordance with the findings of the Court (UNGA Res ES-10/15 [20 July 2004] UN Doc A/RES/ES-10/15; Advisory Opinions; Israeli Wall Advisory Opinion [Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory]).

12  An indirect consequence of UNGA Resolution 377 (V) is the practice adopted by the General Assembly of urging the Security Council to fulfil its functions properly. The General Assembly did so against the background of the South African apartheid policy and the question of Namibia (UNGA Res 2923 A–E [XXVII] [15 November 1972] UN Doc A/8730, 24; Res 2923 F [XXVII] [13 December 1972] UN Doc A/8730, 26; UNGA Res ES-8/2 [14 September 1981] UN Doc A/ES-8/13; UNGA Res 41/35 [10 November 1986] UN Doc A/41/53, 26; UNGA Res 41/39 [20 November 1986] UN Doc A/41/53, 35; UNGA Res 45/176 [19 December 1990] UN Doc A/45/49 vol I, 39), in the case of Palestine (UNGA Res ES-7/2 [29 July 1980] UN Doc A/ES-7/14, 3; UNGA Res ES-7/6 [19 August 1982] UN Doc A/ES-7/14/Rev.1, 9; UNGA Res 45/69 [6 December 1990] UN Doc A/45/49 vol I, 32; UNGA Res 46/76 [11 December 1991] UN Doc A/46/49 vol I, 29; UNGA Res 47/64 E [11 December 1992] UN Doc A/47/49 vol I, 28) and in the conflict in Bosnia-Herzegovina (UNGA Res 48/88 [20 December 1993] UN Doc A/48/49 vol I, 40; UNGA Res 49/10 [3 November 1994] UN Doc A/49/49 vol I, 9). While some of the mentioned resolutions are not directly based in the Uniting for Peace Resolution and the General Assembly did not replace the Security Council but merely called upon it to act, they are nevertheless within the spirit of the Uniting for Peace Resolution and may be considered as a weaker form of action.

D.  Special Legal Aspects

1.  Arguments Raised by the Opponents of the Resolution

13  The USSR and its allies (Byelorussian SSR, Czechoslovakia, Poland, the Ukrainian SSR) condemned UNGA Resolution 377 (V) as illegal and dangerous, and stated that if the veto in the Security Council was objectionable, good faith (bona fide) demanded an amendment of the UN Charter in accordance with its Arts 108 and 109 (United Nations Charter, Amendment; Stein and Morrissey 380).

14  Furthermore, the resolution’s opponents regarded the authority to counter aggression through coercive action to be within the exclusive competence of the Security Council. They maintained that Art. 11 (2) UN Charter prevented the General Assembly from recommending action as foreseen in the framework of Chapter VII UN Charter since it merely stipulated the General Assembly’s general competence to discuss questions regarding the maintenance of international peace and security, but stated that any such question on which action was necessary should be referred to the Security Council.

15  In addition, the resolution’s opponents argued that the resolution was contrary to Art. 12 (1) UN Charter, stipulating that the General Assembly should not make any recommendation with regard to a dispute or situation in respect of which the Security Council was exercising its functions. According to the resolution’s opponents, even in situations where Security Council action was blocked by a veto of one of its permanent members or where negotiations for measures took a long time, the Security Council was discharging its functions, and the General Assembly was not allowed to take action accordingly.

16  Furthermore, the opponents of UNGA Resolution 377 (V) relied on Art. 24 UN Charter and stressed the Security Council’s sole competence to act for the maintenance of international peace and security. They also claimed that the provision in the resolution authorizing the Security Council to call an emergency special session without the concurrence of all permanent members violated Arts 20 and 27 UN Charter since this would be a substantive question and subject to the veto (Stein and Morrissey 381).

2.  Arguments Put Forward by the Resolution’s Proponents

17  The supporters regarded UNGA Resolution 377 A (V) as an authentic interpretation of the UN Charter (United Nations Charter, Interpretation) and quoted Arts 10, 11, and 14 UN Charter as well as the implied powers doctrine as its legal basis (International Organizations or Institutions, Implied Powers). For instance, the United Kingdom argued, that when the Security Council did not exercise the functions assigned to it in accordance with Art. 12 UN Charter, the General Assembly was not precluded by Art. 11 (2) UN Charter from using the powers conferred to it by Art. 10 UN Charter. The States arguing in favour of the resolution furthermore found that Art. 24 (1) UN Charter conferred the ‘primary responsibility’ for the maintenance of peace and security upon the Security Council, but not the exclusive one.

18  In support of the General Assembly’s competence to recommend enforcement measures pursuant to UNGA Resolution 377 (V), other proponents relied on the purposes and principles of the UN Charter. Art. 1 (1) UN Charter stipulates the maintenance of international peace and security as the highest goal of the UN. The proponents argued accordingly that a legal instrument such as the UN Charter had to be interpreted in a way as to allow an effective achievement of its aims, and that the Uniting for Peace Resolution offered such an interpretation (Effectiveness; Interpretation in International Law; Stein and Morrissey 380).

3.  Legality of the Resolution

19  The question of the legality of the resolution is closely linked to the delimitation of competences between the Security Council and the General Assembly as stipulated in Arts 10 to 12 and 14 as well as in Art. 24 UN Charter.

20  Art. 24 UN Charter does not rule out a subsidiary competence of the General Assembly in the maintenance of international peace and security as it stipulates the primary but not the exclusive responsibility of the Security Council in this respect. Regarding the resolution’s legal basis, Art. 14 UN Charter states the general competence of the General Assembly to recommend measures for the peaceful adjustment of disputes (Peace, Proposals for the Preservation of), but does not seem to encompass a competence to recommend armed enforcement action as contemplated in UNGA Resolution 377 A (V). Art. 10 UN Charter confers on the General Assembly—subject to the provisions of Art. 12 UN Charter—the competence to ‘discuss any questions or any matters within the scope of the present Charter’ and to recommend measures accordingly. It follows that, according to Art. 10 UN Charter, the General Assembly is competent to recommend measures relating to the purposes and principles of the UN Charter put forward in Arts 1 and 2 UN Charter including the maintenance of international peace and security and the prohibition of the use of force (Use of Force, Prohibition of). This is exactly the mode of action which is provided for in the Uniting for Peace Resolution. Art. 10 may therefore be taken as the primary legal basis for the Uniting for Peace Resolution (Nolte 1344).

21  Art. 12 UN Charter is also respected by UNGA Resolution 377 (V), provided that one considers a blockage of the Security Council due to a lack of unanimity of its permanent members as a failure of the Security Council to exercise its functions. In addition, practice with respect to Art. 12 UN Charter has evolved in the sense that there has been an increasing tendency over time for the General Assembly and the Security Council to deal in parallel with the same matters. This practice was considered consistent with Art. 12 (1) UN Charter by the ICJ, in its advisory opinion on the legal consequences of the construction of a wall in the occupied Palestinian territory (Legal Consequences of the Construction of a Wall on the Occupied Palestinian Territory [‘Israeli Wall Advisory Opinion’] paras 27–28; see Sec. D.5 below).

22  Art. 11 (2) UN Charter, stipulating that, if action is necessary, a question relating to the maintenance of international peace and security, ‘shall be referred to the Security Council … either before or after discussion’ was regarded by some as a substantive restriction of the General Assembly, affecting its freedom of action with respect to the Uniting for Peace Resolution (see Sec. D.1 above and Sec. D.5 below). Others interpret Art. 11 (2) sentence 2 UN Charter as a mere procedural restriction, which does not affect the material competence of the General Assembly, but only leads to a temporary limitation of its power to make recommendations. According to that view, Art. 11 (2) UN Charter is comparable to Art. 12 UN Charter and does not rule out a subsidiary competence of the General Assembly to recommend enforcement measures (Nolte 1345).

4.  General Acceptance by Subsequent Practice

23  Subsequent practice confirms a general acceptance of UNGA Resolution 377 A (V), at least with regard to the rules of procedure it provides for. Although some UN Members States—both Western and Eastern States—have on several occasions objected to the resolution (in most cases because of their own involvement in the conflict), these objections never prevailed. The General Assembly as well as the Security Council have convened emergency special sessions. The 1967 emergency special session was convened on the initiative of the USSR. Hence, one may argue that the USSR/Russian Federation is prevented from questioning the resolution’s legality either by acquiescence or by estoppel.

5.  Advisory Opinions of the ICJ

24  The ICJ touched upon the substantial and the procedural aspects of the Uniting for Peace Resolution in two of its advisory opinions.

25  In Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter) (Advisory Opinion) (‘Certain Expenses of the United Nations’) Certain Expenses of the United Nations [Advisory Opinion], while not explicitly mentioning UNGA Resolution 377 (V), the ICJ referred to the resolution’s substantive aspects. The Court held that the term ‘action’ in Art. 11 (2) UN Charter referred to ‘enforcement action’ (Certain Expenses of the United Nations 164), thus permitting action which did not amount to enforcement action to be called for by the General Assembly. ‘Thus while it is the Security Council which, exclusively, may order coercive action, the functions and powers conferred by the Charter on the General Assembly are not confined to discussion, consideration, the initiation of studies and the making of recommendations: they are not merely hortatory’ (ibid 163). Based on this advisory opinion, Tomuschat finds an illegality in the heart of UNGA Resolution 377 (V) which essentially aims at recommending enforcement measures (Tomuschat 292). Hailbronner and Klein, to the contrary, define ‘enforcement action’ by its binding nature and conclude that the General Assembly is not prevented from recommending coercive measures (Hailbronner and Klein 264–65).

26  While not dealing with the General Assembly’s competence to recommend enforcement measures, the ICJ explicitly confirmed substantive as well as procedural aspects of UNGA Resolution 377 A (V) in its Israeli Wall Advisory Opinion. The Court stated that Art. 24 UN Charter conferred the primary but not the exclusive competence on the Security Council for the maintenance of international peace and security and held that, inter alia, under Art. 14 UN Charter, the General Assembly had the power to ‘recommend measures for the peaceful adjustment’ of various situations (Israeli Wall Advisory Opinion para. 26). Furthermore, the Court referred to the conditions for action outlined in UNGA Resolution 377 A (V), the failure of the Security Council to exercise its functions due to the negative vote of one or more permanent members and the existence of a threat to the peace, breach of the peace, or act of aggression. It held that these conditions were met with respect to the 10th emergency special session. Accordingly, the ICJ found that the General Assembly had not acted ultra vires when requesting the Court to deliver the advisory opinion (Israeli Wall Advisory Opinion paras 30–32).

6.  Legality of Action Taken by States Pursuant to the Resolution

27  The competence of the General Assembly to recommend enforcement measures is to be distinguished from the action permitted to States when acting on the basis of the Uniting for Peace Resolution.

28  From a formal point of view, resolutions of the General Assembly are not binding. Accordingly, Art. 103 UN Charter, providing for a precedence of UN Charter obligations in case of contradiction with other international obligations, does not apply. Therefore, Member States acting on the basis of UNGA Resolution 377 A (V) may only do so within the limits of existing international obligations. This requirement greatly reduces the possible impact of the Uniting for Peace Resolution.

29  A more progressive position may however justify a contravention of international obligations pursuant to a General Assembly recommendation as a legitimate countermeasure in the collective interest (Countermeasures), provided it does not affect the prohibition of the use of force. Although—due to the scarcity of State practice—there appears to be no clearly recognized entitlement of States to take countermeasures in the general or collective interest (see ‘no prejudice’ formulation of Art. 54 UN ILC ‘Responsibility of States for Internationally Wrongful Acts’ UN Doc A/RES/56/83), a General Assembly resolution recommending such measures might provide an essential additional basis of legitimacy. Accordingly, a derogation from existing treaty obligations might be permissible if it is taken pursuant to a General Assembly resolution recommending economic sanctions as was the case with respect to South Africa (see Sec. C.2 above).

30  A legitimate countermeasure must never violate the prohibition of the use of force (see Art. 50 (1) (a) UN ILC ‘Responsibility of States for Internationally Wrongful Acts’ UN Doc A/RES/56/83 codifying customary international law). Hence, a recommendation of the General Assembly to take collective military measures seems to be in accordance with the UN Charter only in so far as specific military action taken on the basis of the resolution is justified by the right to collective self-defence under Art. 51 UN Charter (Self-Defence). The recommendation itself, however, is no justification for a breach of the prohibition of the use of force (Nolte 1346).

E.  Political Importance of the Resolution

31  The Uniting for Peace Resolution shifts the competence for the maintenance of international peace and security from the Security Council to the General Assembly, if certain conditions are met, namely if the Security Council fails to exercise its functions in case of a threat to or breach of international peace or an act of aggression.

32  Accordingly, the resolution is at the centre of the tension between the substance of the UN Charter, stipulating the maintenance of international peace as the highest goal of the UN and the UN Charter’s procedural provisions which install the Security Council as the main organ to take the necessary enforcement action. This tension is most evident where an obvious situation according to Art. 39 UN Charter exists, but the Security Council fails to take the necessary action.

33  Based on the Uniting for Peace Resolution, the General Assembly may assert the competence to partially replace the Security Council in these situations. This subsidiary competence of the General Assembly may be regarded as a supplementary means to counter-balance the wide discretion of the Security Council to decide whether and how to react in case of threats to the peace, breaches of the peace or acts of aggression in order to restore international peace and security.

F.  Outlook

34  The Uniting for Peace Resolution was an important tool for the General Assembly to circumvent a blockage of the Security Council in particular during the Cold War. After the end of the Cold War, the change in the relationship between the permanent members of the Security Council and the subsequent increased activity of the Council led to a certain loss of the resolution’s importance. Likewise, the change in the General Assembly’s majorities—now dominated by third world States—influenced the references made to the General Assembly (Nolte 1347). Even in situations such as the 1999 Kosovo crisis, when the Security Council was blocked under the impression of a likely Russian veto, the NATO States did not turn to the General Assembly to legitimize their bombing campaign within the framework of the Uniting for Peace Resolution. They would not have got a majority in the General Assembly (Tomuschat 289). The Kosovo crisis is symptomatic for a certain reluctance of the major powers to refer to the Uniting for Peace Resolution as a basis for action.

35  However, the General Assembly might increasingly rely on the Uniting for Peace Resolution under different auspices. In 1950, UNGA Resolution 377 (V) was adopted in a situation where the mechanism in the Security Council (it was blocked by the veto of one power) did not reflect the overwhelming opinion of the international community of States. Today, the Security Council’s composition does not represent the world’s power constellation, with some regions of the world (Africa, Asia, Latin-America) as well as the block of third world States being grossly underrepresented. The 2005 attempted reform of the UN Charter with its plan to increase and balance the membership in the Security Council which was recommended by the Report of the Secretary-General’s High-Level Panel on Threats, Challenges and Change as well as by the Secretary-General’s Report ‘In Larger Freedom: towards Development, Security and Human Rights for All’ was deferred. The resulting continuing imbalance in the composition of the Council as well as a general erosion of its powers in the aftermath of the 2003 Iraq war in particular, may induce States other than the major powers to rely increasingly on the General Assembly and the Uniting for Peace Resolution (see generally Tomuschat 303). In fact, the 10th emergency special session was convened on the request of Qatar, the chair of the Arab block at the time. Furthermore, the 2003 request for an advisory opinion which was addressed to the ICJ during the 10th emergency special session proves that the General Assembly may conceive of ways to act other than military ones and might revive the Uniting for Peace Resolution slightly differently than originally intended.

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