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Max Planck Encyclopedia of Public International Law [MPEPIL]

United Nations, General Assembly

Christian Tomuschat

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 28 November 2020

International organizations, practice and procedure

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

A.  Foundations

The General Assembly (‘GA’) is one of the principal organs of the United Nations (UN) enumerated in Art. 7 (1) UN Charter. The fact that it takes pride of place on the list and that its functions and powers are set out in Chapter IV UN Charter, before all the other principal organs, is no coincidence. Under Art. 9 (1) UN Charter, every Member State has a seat and a vote in the GA, whereas all the other principal organs composed of States have only a limited circle of membership. The GA thus occupies a central position as a universal conference within the organizational structure of the UN. From a political point of view, it is the only body in which every Member State can voice its interests. Now that the UN has almost achieved universality of membership, with only Kosovo, Palestine, and Taiwan lacking a direct representation, the GA is increasingly consolidating its position as the pre-eminent forum of global discussion, notwithstanding the competition it has to confront from the informal fora of the Group of Seven (G7) and the G20. A number of specific provisions make it clear that, to a large extent, the other principal organs of the UN are legally subordinated to the GA.

The right to a seat in the GA is independent of the size of the Member State in question. The creation of a special status of association for so-called micro States, which would have comprised a limited right of participation without a right to vote, was contemplated before the expansion of membership had reached its final point, but with no tangible results. Consequently, the influence of developing countries in the GA has been constantly increasing for decades, due to the continual accession of newly independent States with ever-smaller populations. Even States as small as Andorra, Liechtenstein, Monaco, and San Marino from Western Europe or Dominica, Grenada, and Nauru from other continents were admitted as full members. Due to the rigidity of the rule ‘one State, one vote’, the GA does not and can never qualify as a world legislative body. From the viewpoint of democratic legitimacy, China and India could hardly be relegated to the same status as the tiny States just mentioned (Legitimacy in International Law).

Observer status includes certain rights of participation as well (International Organizations or Institutions, Observer Status). Since 2002, when Switzerland joined the UN, the Holy See has been the only non-member State observer. During the decolonization process, the GA generally granted the rights of an observer to the relevant anti-colonial liberation movements. Most liberation movements reached their goal during the last decades of the last century; the last one of these successful organizations being, in 1993–94, the African National Congress which fought for the transformation of the Apartheid State into a State of the entire people of South Africa. Only the Palestine Liberation Organization (PLO) has not been able to bring about the admission of Palestine as a full member of the UN. Originally being admitted as a liberation movement in 1974 (UNGA Res 3237 [XXIX] [22 November 1974] ‘Observer Status for the Palestine Liberation Organization’ GAOR 29th Session Supp 31 vol 1, 4), it was a few years later granted the right to act in the UN under the name of ‘Palestine’ (UNGA Res 43/177 ‘Question of Palestine’ [15 December 1988] GAOR 43rd Session Supp 49 vol 1, 61), enjoying far-reaching rights of participation much beyond the traditional status of an observer. Eventually the status of Palestine was upgraded to that of a non-member observer State (UNGA Res 67/19 ‘Status of Palestine in the United Nations’ [29 November 2012] GAOR 67th Session Supp 49 vol 1). The last group of non-State observers is constituted by international organizations and other international bodies, the list of which has grown ever longer in recent years (eg UNGA Res 64/3 ‘Observer Status for the International Olympic Committee in the General Assembly’ [19 October 2009] UN Doc A/RES/64/3; UNGA Res 64/121 ‘Observer Status for the International Humanitarian Fact-finding Commission in the General Assembly’ [16 December 2009] UN Doc A/RES/64/121; International [Humanitarian] Fact-Finding Commission). Attempts by the European Union to be granted rights of participation closely resembling those of a full member of the UN were finally successful in 2011 after earlier similar endeavours had failed (UNGA Res 65/276 ‘Participation of the European Union in the Work of the United Nations’ [3 May 2011] GAOR 65th Session Supp 49 vol 1). Only two States abstained in the voting (Syrian Arab Republic and Zimbabwe).

Art. 9 (2) UN Charter determines representation in the GA. This rule, which is designed to prevent the larger States from gaining an unfair edge over the smaller ones, limits the number of representatives which may be sent to the GA to five. In practice, this rule is primarily enforced de facto by the lack of adequate seating space in the GA hall. Every delegation must submit appropriate credentials. Under Rule 27 Rules of Procedure of the General Assembly (‘GA Rules of Procedure’), the examination of credentials must confine itself to the formal criterion of whether the document has been correctly signed by the Head of State or Government or by the Foreign Minister. Although this requirement was certainly fulfilled in the case of the delegates of South Africa during the apartheid era, the GA refused to acknowledge their credentials from 1970 onwards, arguing that they had been issued by a racist minority government that was not authorized to speak for the people of South Africa as a whole. It was during the 29th Session in 1974 that this charge was first translated into the decision that the South African delegation was to be barred from participating in the work of the world forum (UNGA Res 3206 [XXIX] ‘Credentials of Representatives to the 29th Session of General Assembly’ [30 September 1974] [GAOR 29th Session Supp 31 vol 1, 2], together with the decision of the President of the Session, Buteflika from Algeria, 12 November 1974, UN Doc A/PV.2281 para. 76). Hitherto, conflicts over the acknowledgement of credentials had arisen only in instances where two rival governments both laid claim to sole representation of their countries (China, Congo/Zaire, Yemen, Cambodia). In substance, each of these disputes concerned the question of recognition of a government, as more recently shown in the case of the Côte d’Ivoire where the GA recognized the credentials signed by Alassane Ouattara, the winner of the elections held in the country in November 2010 (UNGA ‘Credentials of Representatives to the 65th Session of the General Assembly: Report of the Credentials Committee’ [22 December 2010] UN Doc A/65/583/Rev.1), rejecting those of the former President, Laurent Gbagbo, still effectively in power. According to a legal opinion delivered by the Secretary-General in 1950, the only relevant criterion for the recognition of a government, that is, of its right to represent a Member State, should be that of effectiveness. However, the GA refused until 1971 to apply this criterion with regard to China and dropped it entirely in the case of South Africa; again, in the case of the Côte d’Ivoire, legitimacy seems to have taken precedence over effectiveness. It may thus be concluded that effectiveness has ceased to be the sole determinative criterion. Since 1982, the Arab States and Iran have made repeated attempts to elbow Israel out of the GA, but those endeavours were thwarted every time by the US’s threats to stop its payments of assessed contributions and, possibly, to even leave the UN (motions that no action be taken on the proposal were adopted each time).

B.  Organizational Structure

The GA does not only meet in plenary; most of its resolutions are prepared in committees. Since 1993, the GA works on the basis of six main committees which are entrusted with studying the topics assigned to them before the plenary takes the final decisions (see also United Nations Committees and Subsidiary Bodies, System of). These six main committees are the following:

  1. i)  First Committee (Disarmament and International Security Committee), concerned with disarmament and related international security questions;

  2. ii)  Second Committee (Economic and Financial Committee), concerned with economic issues;

  3. iii)  Third Committee (Social, Humanitarian and Cultural Committee), concerned with social and humanitarian issues;

  4. iv)  Fourth Committee (Special Political and Decolonization Committee), concerned with a variety of political subjects not dealt with by the First Committee, as well as with decolonization;

  5. v)  Fifth Committee (Administrative and Budgetary Committee), dealing with the administration and the budget of the United Nations;

  6. vi)  Sixth Committee (Legal Committee), tasked with legal issues (United Nations, Sixth Committee).

The division of the membership into regional groups has never been determined by the GA itself. However, in many instances the GA distributes the seats in a subsidiary body according to regional affiliation. Thus, eg, regarding the Human Rights Council and the International Law Commission (ILC), quotas have been set for the different groups. In respect of elections to the International Court of Justice (ICJ), no formal scheme exists; to date, the elections proceed on the basis of consensual traditions according to which each of the five permanent members of the UN Security Council (‘SC’; United Nations, Security Council) should have a judge of their nationality on the bench. In 2017 the British candidate Sir Christopher Greenwood was not able to secure a majority in the General Assembly so that the United Kingdom abandoned the factual position which it had occupied for 71 years in favour of an Indian jurist. The five regional groups are the African Group, the Asian Group, the Eastern European Group, the Latin American and Caribbean Group, and the Western European and Others Group (‘WEOG’). Curiously enough, the fall of the iron curtain in Eastern Europe has had no impact on the division of European States between the Western and the Eastern Group. Since many members of the Eastern European Group are now members of the European Union (Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia, Slovenia), the criterion of distinction has become a purely territorial one, whereas until 1990 it had essentially been a political character. The United States does not formally belong to the WEOG but is treated as a member for election purposes. Israel is counted as a WEOG member in New York but not at the European headquarters of the UN. Turkey belongs to the Asian Group but is considered a WEOG member in respect of elections.

On the basis of the general authorization laid down in Art. 22 UN Charter to create subsidiary or specialized organs, the GA has surrounded itself with a wide circle of auxiliary institutions, which are divided into three categories. The group of procedural committees comprises the General Committee (28 members), which consists of the President, the Vice-Presidents of the Assembly, and the chairpersons of the Main Committees, and is in charge of questions of agenda management (agenda setting, duration of sessions, acceleration of procedure); and the Credentials Committee, consisting of nine members. Two Standing Committees, the Advisory Committee on Administrative and Budgetary Questions, as well as the Committee on Contributions, are composed of independent experts. The largest group is comprised of the ‘subsidiary, ad hoc and related bodies’ as they are termed by the UN Yearbook, generally 60 to 70 subsidiary and specialized organs, whose precise number varies (among them, for instance: United Nations Conference on Trade and Development [UNCTAD]; United Nations Development Programme [UNDP]; United Nations Environment Programme [UNEP]; International Law Commission; United Nations University [UNU]). The United Nations Peacebuilding Commission, established by UN General Assembly Resolution 60/180 of 20 December 2005 (GAOR 60th Session Supp 49 vol 1, 96) and UN Security Council Resolution 1645 of 20 December 2005 (SCOR [1 August 2005–31 July 2006] 235), has double parenthood. The Human Rights Council, brought into being in 2006 as the successor to the Commission on Human Rights, is also a body whose legal foundation is provided by Art. 22 UN Charter, whereas formerly the Commission on Human Rights was a functional sub-commission of the United Nations, Economic and Social Council (ECOSOC) (see also United Nations Commission on Human Rights/United Nations Human Rights Council).

UN General Assembly Resolution 111 (II) ‘Establishment of an Interim Committee of the General Assembly’ of 13 November 1947 (GAOR 2nd Session Resolutions 15), established the Interim Committee, the purpose of which was to preserve the GA’s potential for action between sessions, particularly in the area of maintenance of international peace and security. A seat was allotted to each Member State. However, as the Soviet Union regarded the Interim Committee as an encroachment upon the competences of the SC and refused, together with its allies, any form of co-operation, the Committee was unable to fulfill the expectations set upon it. It has not convened since June 1961. Accordingly, although formally still in existence, it must be considered defunct, a piece of legal history.

C.  Procedures

The GA Rules of Procedure, supplemented by practice, have resulted in bringing about different kinds of GA sessions. The GA meets for its regular annual session in New York on the third Tuesday of September in each year. Because of the large quantity of agenda items, it usually ends just before Christmas; more and more frequently, it continues into the new year, sometimes ending just before the start of the new session. Special sessions, according to Art. 20 UN Charter, must be summoned by the Secretary-General within fifteen days after the SC or a majority of the Member States have made a corresponding request. Practice has made it clear that the veto power under Art. 27 (3) UN Charter does not extend to a SC request for a special session to the Secretary-General. Another category of sessions owes its creation to the famous Uniting for Peace Resolution (1950). The resolution mandates the calling of an ‘Emergency Special Session’ within 24 hours at the request of the SC sitting in full, any nine members of the SC, or the majority of the members of the UN. As of April 2019, 30 special sessions have taken place, and the number of emergency special sessions has risen to 10, where, on each occasion, sometimes extended over years, hotspots of international politics were on the agenda.

10  Every member of the GA—that is, every Member State—shall have one vote (Art. 18 (1) UN Charter). In principle, decisions are taken on the basis of a simple majority (Art. 18 (3)) whereas ‘important questions’ require a two-thirds majority (Art. 18 (2)). The UN Charter itself identifies some of these important questions but its enumeration is not to be viewed as exhaustive. Should a controversy arise on whether a question is important or not, this preliminary question may be decided by simple majority, as is the case with the determination of additional categories of important questions (Art. 18 (3)). No fixed legal standards are to be gleaned from the practice of the GA. In 1965, for example, it was decided that UN General Assembly Resolution 2105 (XX) ‘Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples’ of 20 December 1965 (GAOR 20th Session Supp 14, 3), which had generated considerable controversy because of its call—directed primarily at the colonial powers—for the dissolution of all military bases in colonial territories, did not require adoption by a qualified majority. On the other hand, the decision taken in the fundamental UN General Assembly Resolution 1668 (XVI) ‘Representation of China in the United Nations’ of 15 December 1961 (GAOR 16th Session Supp 17, 66), that any motion to alter the representation of China in the UN was an important question, was overturned in 1971 (UNGA Res 2758 [XXVI] ‘Restoration of the Lawful Rights of the People’s Republic of China in the United Nations’ [25 October 1971] GAOR 26th Session Supp 29, 2) although the political and legal assessment of the situation between the People’s Republic of China and the Republic of China remained unchanged. It seems apt to conclude that the GA exercises an exclusively political discretion in that respect.

11  The two-thirds majority necessary for decisions on important questions is determined on the basis of the number of members present and voting. Abstaining members are not included (Rule 86 GA Rules of Procedure). A vote is carried if there are at least twice as many ‘yeas’ as ‘nays’.

12  By far the greater part of GA resolutions are adopted with a large majority, often even without any opposition. Even in case of lack of opposition, the characterization as adoption by unanimity would be misleading inasmuch as some States have actually abstained or would have abstained if directly asked. Until the 28th Session, it was the practice of the group of Western States to voice disagreement with the substance of a resolution by abstention rather than by a negative vote, except in extreme cases. Not least because of the undesirable impression likely to be created by abstentions, informal voting is often preferred to the ‘roll-call’ (Rule 87 GA Rules of Procedure). The resulting decision is then referred to as having come about ‘without a vote’, ‘without objection’, ‘by acclamation’, or ‘by consensus’, terms which all have slightly different connotations. The landmark Friendly Relations Declaration (1970), for instance, was adopted ‘without a vote’, which is, more often than not, erroneously interpreted as a unanimous vote; the same voting pattern characterized the 2005 World Summit Outcome (UNGA Res 60/1 [16 September 2005] GAOR 60th Session Supp 49 vol 1, 3). In fact, decision-making by consensus is possible even when reservations are made to parts of a resolution before or after the vote. Only the complete rejection of a draft by at least one Member State will prevent the adoption of a resolution by consensus.

13  Under Art. 19 UN Charter, the right to vote is forfeited if a State falls in arrears with its contributions for the last two full years. At the start of each Session, the President makes an open statement or draws attention to a letter of the Secretary-General specifying which States have transgressed the borderline and are therefore deprived of the right to vote. An exceptional authorization may be granted to a State if it is able to show that the failure to pay is due to conditions beyond its control.

14  As the Soviet Union and France, in particular, refused to contribute to the costs of the first peacekeeping operation of the UN in the Near East and the peacekeeping operation in the Congo, for both of which appropriations had been made in the regular United Nations budget, the situation envisaged by Art. 19 UN Charter arose for both countries in 1964. The two States took the view that the ICJ’s Certain Expenses of the United Nations (Advisory Opinion) (20 July 1962 [1962] ICJ Rep 151), which had declared that these costs were part of the organization’s expenses in the sense of Art. 17 (2), was erroneous. At any rate, they argued, the loss of the right to vote was not automatic but had to be decided, as an ‘important question’ in the sense of Art. 18 (2), by the GA with a two-thirds majority. Since the United States insisted on the application of Art. 19 to the debtors in default, but the application of the corresponding sanction to two permanent members of the SC seemed politically inconceivable, an attempt was made during the 19th Session in 1964–65 to deal only with subjects which could be decided without a vote, on the basis of a consensus arrived at beyond the confines of the GA. Finally, in August 1965, an agreement was reached that the question of the applicability of Art. 19 with regard to costs arising out of those two peacekeeping missions would not be raised. The rule has thus been stripped of some of its practical relevance, but is otherwise still used against defaulting debtors, with the assumption that it operates ipso iure.

D.  Powers

15  The basic rule determining the powers of the GA is Art. 10 UN Charter, according to which the GA may ‘discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter’, and to address the results of its deliberations to the Member States or to the SC in the form of ‘recommendations’. The powers of the GA ratione materiae thus go as far as the competence of the world organization as such, whereas all the other principal organs may only take action with regard to specific sectors of the competences of the UN. Considering the breadth of the goals and principles laid down in Arts 1 and 2, it becomes apparent that there are few questions deserving discussion by the world forum which might not by right be taken up by the GA. Of course, Art. 2 (7) prohibits intervention by the UN in ‘matters which are essentially within the domestic jurisdiction of any state’. However, it is precisely through Arts 1 and 2, as well as Art. 55, that the scope of the concept of ‘domestic matters’ has been narrowed down considerably. Particularly in cases where racial discrimination is concerned, the GA had long since refused to admit any recourse to Art. 2 (7). With regard to the protection of human rights in general, a similar reading of the rule has progressively gained ground. At a first stage, discussion of matters under the effective control of States was considered permissible only if a high degree of gravity was found to exist, for which the formula of a ‘consistent pattern of gross and reliably attested violations of human rights’ was coined (UN ECOSOC Res 1503 [XLVIII] [27 May 1970] ESCOR 48th Session Supp 1A, 8). Currently, this cautious approach, which only permits focusing on extremely serious situations, seems to have been definitively overcome. Under the procedure of Universal Periodic Review before the Human Rights Council (UN HRCouncil ‘Resolution 5/1: Institution-Building of the United Nations Human Rights Council’ [18 June 2007] UN Doc A/HRC/5/L.11), each State is now pushed to submit to a general review of its human rights practices, irrespective of whether it has ratified the International Covenant on Civil and Political Rights (1966) and International Covenant on Economic, Social and Cultural Rights (1966) or other fundamental treaties for the protection of human rights. All 193 Member States have accepted such scrutiny of their human rights record. It stands to reason that the GA, on the other hand, cannot have lesser rights than its subsidiary body.

16  Arts 11–14 contain variations on the basic theme stated in Art. 10 without adding anything fundamentally new. However, the function fulfilled by Art. 11 is not unimportant inasmuch as it expressly affirms that the GA may take action for the preservation of international peace and security, that is, in an area that is under the primary responsibility of the SC. Art. 14, finally, which establishes a right to make recommendations with regard to situations which might impair the ‘general welfare or friendly relations among nations’, also invites a broad reading of the powers of the GA ratione materiae. The purpose of this rule was primarily to facilitate peaceful change, whose failure to materialize led to the decline and fall of the League of Nations.

17  Seen as a whole, the powers of the GA may be divided into internal and external powers. While the GA possesses some true decision-making powers in the area of internal organization, such powers have been denied it in almost all other areas of its activity.

18  Among the elective powers allotted to the GA, the most important ones are: the election of the non-permanent members of the SC (Art. 23 (1)) and of the members of ECOSOC. The appointment of ICJ judges is undertaken by the GA and the SC jointly, but in two separate votes (Art. 8 ICJ Statute); while the Secretary-General is elected by the GA upon a recommendation made by the SC (Art. 97 UN Charter). Elections must also be held to fill positions at the subsidiary and special organs created under Art. 22 inasmuch as they have limited membership; today, the election of the members of the Human Rights Council stands out on account of its political importance. Two more competences belonging to the class of internal powers are the organizational power rooted in Art. 22 and the power to establish regulations for the staff of the organization (Art. 101). The power to ‘consider and approve the budget’ (Art. 17) is also usually mentioned in this connection. However, the approval of the budget unfolds external effects inasmuch as it supplies the basis for the determinations of the Member States’ contributions according to the scale of assessment established by the GA as well (Art. 17 (2)).

19  Cases on the borderline between internal and external competences are the decision, upon the recommendation of the SC, to admit new members (Art. 4 (2)), the suspension of membership rights (Art. 5), as well as expulsion from the organization (Art. 6). The same holds true for the GA’s participation in matters of UN Charter amendment. Under Art. 108, draft amendments must be adopted by the GA with a two-thirds majority. For their entry into force, the ratification by two-thirds of the Member States, including all permanent members of the SC, is required (United Nations Charter, Amendment).

20  Given the breadth of the mandate established by Arts 10–14, it is nearly impossible to give a detailed substantive account of the external powers of the GA as they have unfolded in practice; all the more so since the GA does not usually specify the legal bases of its actions. In functional terms, these powers may be divided into a comprehensive right of discussion, linked to a related right to the procurement of information of any kind, and an equally sweeping right to make recommendations. After four decades dominated by the issue of self-determination of colonial peoples and the fight against South Africa’s policy of apartheid, the main centre of the GA’s attention has undergone a strategic shift. There remains a strong focus on the rights of the Palestinian people. However, economic advancement, disarmament, and ecological protection of the planet have come to the foreground, together with strong emphasis on economic and social rights, in particular attempts to reduce the frightening levels of poverty in the world.

21  Another objective steadfastly pursued by the GA is the codification and progressive development of international law, according to Art. 13 (1) (a). In this context, the GA leaves most of the ‘non-political’ questions to the ILC, but it prefers to assign other matters to special committees (such as those set up to search for a definition of aggression, the establishment of principles on friendly relations). The 1982 UN Convention on the Law of the Sea was also the fruit of a special committee created in 1967, whose mandate was then taken over by the Conference on the Law of the Sea (Conferences on the Law of the Sea). Today, the issue of environmental protection increasingly turns up on the GA’s agenda. Finally, the GA may also ask the ICJ to render advisory opinions. Famous are the Nuclear Weapons Advisory Opinions (Legality of the Use by a State of Nuclear Weapons in Armed Conflict [Advisory Opinion] [1996] ICJ Rep 66; Legality of the Threat or Use of Nuclear Weapons [Advisory Opinion] [1996] ICJ Rep 266), the Israeli Wall Advisory Opinion (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory) ([2004] ICJ Rep 136), and Kosovo (Advisory Opinion) (Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo [Advisory Opinion] [2010] ICJ Rep 403).

22  In principle, those resolutions of the GA that go beyond the scope of its internal powers possess no binding force. In terms of international law, such resolutions are legal acts which are not capable of creating direct legal obligations as such. The relevant provisions of the UN Charter unmistakably classify them as recommendations. Nevertheless, it has frequently been argued in recent times that resolutions adopted unanimously or by consensus should be considered as legally binding stricto sensu if they purport to set forth legal rules. This reasoning applies primarily to resolutions which are specifically identified as ‘Declarations’. Two types of such ‘Declarations’ may be distinguished. On the one hand, a ‘Declaration’ may set out legal propositions that are conceived of as aims of legal policy. The most prominent case in point is the Universal Declaration of Human Rights (1948). Originally, therefore, the Universal Declaration did not constitute a set of binding legal rules, but some of its provisions have crystallized as customary international law in the more than 70 years since its adoption. On the other hand, a ‘Declaration’ may intend to codify existing rules of customary international law or particularize the provisions of an international treaty. This latter classification applies, in particular, to the Friendly Relations Declaration. In its judgment in the Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States of America) ([1986] ICJ Rep 14), the Court acknowledged that the Friendly Relations Declaration stands as an act mostly embodying existing customary law (at paras 188–91). Reference to the Friendly Relations Declaration was also made in the Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) para. 102). It is true that, in particular, a declaration adopted by consensus embodies much more common legal substance than the dispersed elements of legal practice, mostly taken from the diplomatic intercourse of countries of the ‘First World’, that in the past were taken as the factual basis of rules of customary law. Resolutions under which the GA simply takes note of a set of rules do not confer on those rules any authoritative legitimacy (see, eg, UNGA Res 56/83 ‘Responsibility of States for Internationally Wrongful Acts’ [12 December 2001] [GAOR 56th Session Supp 49 vol 1, 499], which took note of the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts); however, the GA thereby acknowledges that the instrument concerned is a worthwhile piece of legal craftsmanship, which is likely to obtain the formal seal of approval in the near future.

E.  Legal Status within the UN System

23  The relationship of the GA to the subsidiary and specialized organs created on the basis of Art. 22 is based on the principle of subordination. The GA is empowered to determine the composition and the mandate of these organs, to determine their rules of procedure, to give binding instructions, and to accept or reject the results of their work. Of course, some of these organs have achieved a considerable amount of independence so that their status now approaches that of a specialized agency; this is the case, in particular, with UNCTAD, UNDP, UNEP, and the United Nations Children’s Fund (UNICEF). On the other hand, the GA is not precluded from binding itself. For instance, it specifically created the UN Administrative Tribunal for the settlement of staff disputes on the basis of its Resolution 351 (IV) ‘Establishment of a United Nations Administrative Tribunal’ of 24 November 1949 (GAOR 4th Session Resolutions 49), as an independent organ for the administration of justice, and must therefore accept its judgments as authoritative (Effect of Awards of Compensation Made by the United Nations Administrative Tribunal [Advisory Opinion] [1954] ICJ Rep 47 at 53). With effect from 1 January 2010, the UN Administrative Tribunal was abolished; it has been replaced by the Dispute Tribunal and, for purposes of appeal, the Appeals Tribunal.

24  The GA’s relationship with the other principal organs varies from case to case. The SC is subject to the authority of the GA only inasmuch as it must report on its activities to the GA on a yearly basis under Art. 15 (1). However, it is significant that the GA has not discussed these reports for many years and that it merely takes note of them, rather than to adopt a formal decision in the sense of an acceptance or rejection. The reason for this self-restraint is that the SC, in the exercise of the responsibility for the maintenance of international peace and security bestowed on it by Art. 24, enjoys a wide discretionary freedom of decision. Nevertheless, world peace and security are also within the GA’s competence (Art. 12) although it is—in conformity with its general functional status—restricted to discussion and the adoption of recommendations. Two rules intended as delimitations of power for the benefit of the SC have lost their practical relevance. First, the GA is supposed to refrain from making any pertinent recommendations as long as the SC is dealing with an issue (Art. 12 (1)); however, the GA seems to feel less than bound by this rule. The term ‘while the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter’, which lay down a clear ban on recommendations, is read in practice as preventing the GA from making a statement only in those cases where the SC has already acceded to its wishes. If this does not occur, particularly when a permanent member of the SC has exercised its veto right, the GA feels free to adopt lengthy resolutions and to criticize the SC in harsh language; for many years, South Africa and Palestine were the most prominent cases in point, and in the case of Palestine there is no end to the parallelism in sight. On the other hand, Art. 11 (2) second clause states that the GA must transfer any issue touching upon international peace and security to the SC before or after discussion, as soon as ‘action’ becomes necessary for the resolution of the problem. Despite a remark to this effect by the ICJ in its Certain Expenses of the United Nations (Advisory Opinion) (at 163), it remains disputed to this day whether this term refers to any and all actions necessary for the resolution of a conflict, or whether its meaning is merely restricted to coercive measures by the SC on the basis of Chapter VII. This controversy, which also concerns the interpretation of Art. 12 (1), peaked in the dispute about the Uniting for Peace Resolution. Under this Resolution, of which mention has already been made (see para. 9 above), the GA may, particularly in case of a breach of peace or an aggressive act, recommend collective measures to be taken by the Member States if the SC fails to assume its primary responsibility for world peace and international security. The Soviet Union had always argued that this assumption of a subsidiary power by the GA was illegal because, in case of a threat to or breach of the peace, or of an act of aggression in the sense of Art. 39, which requires the taking of measures, recommendations made by the GA would encroach on the powers of the SC. In fact, the Uniting for Peace Resolution has merely been used as a legal basis for peacekeeping operations and for the summoning of emergency special sessions, but never for a military reaction against an act of aggression. Besides, the GA is not prepared to acknowledge Art. 11 (2) as restricting its power to make recommendations in any way.

25  In contrast to the SC, ECOSOC works under the authority of the GA (Art. 60) and does not possess any exclusive powers. It serves as the central forum for discussing international economic and social issues, and for formulating policy recommendations addressed to Member States and the UN system. Its reports are discussed in depth by the GA. The influence exercised by the GA on ECOSOC is so far-reaching that, in practice, its status hardly differs from that of the subsidiary and special organs created under Art. 22. The debate on a strengthening of the status of ECOSOC has dragged on for years. Since the challenges to be addressed by the international community in the field of economic and social policies are increasing year after year, ECOSOC may have found its legitimate place as a forum where discussions are held which could not be fitted into the time frame available for the work of the GA.

26  It need hardly be emphasized that the ICJ, as ‘principal judicial organ’ of the UN (Art. 92), is not subject to supervision by the GA. Rule 13 (b) GA Rules of Procedure envisaged reports of the ICJ to the GA from the very beginning, but the ICJ only started to submit these reports in 1968 (available in electronic format since 1985–86). They have been acknowledged, but never discussed. The same is true of the reports of the International Criminal Court (ICC).

27  The Secretary-General must support the work of the GA insofar as this is within his powers. Essentially, he is the executive arm of the GA. The GA may impart to him any kind of mandate. On the other hand, the Secretary-General is obliged under Art. 12 (2) to report to the GA the activities of the SC.

28  With regard to the specialized agencies (Arts 57 and 63), the GA plays only a modest role. Its most important power is to examine their administrative budgets and to work towards the co-ordination of financial and budget policies (Art. 17 (3)) by means of recommendations. Some progress has actually been made here (co-ordination of financial and staff rules, joint auditing). Apart from this, however, the specialized agencies have preserved their budgetary and financial independence; their obligations vis-à-vis the UN do not go beyond a duty to consult. A notable source of controversy during the decolonization process was the GA’s relevant policy. Some specialized agencies, particularly the World Bank Group, were not willing to comply with the GA’s recommendation in support of the colonial liberation struggle and of a total breaking off of relations with Portugal and South Africa. From a legal standpoint, the recommendatory character of GA resolutions applies to the specialized agencies as well; any other view would necessarily sacrifice the independence of the specialized agencies with their widely differing composition and the principle, used in some organizations, of weighted voting.

F.  Evaluation

29  Legal terms are not sufficient to describe the position and importance of the GA. On the other hand, any political evaluation will inevitably be guided by more subjective terms.

30  To begin with, the GA, in its role of a periodically meeting world forum, represents a place of communication whose value is inestimable. Every government may establish contacts and enter into talks, not only with reference to the UN, but also in bilateral relations between States. The annual sessions thus provide a unique opportunity, particularly for smaller States that cannot afford diplomatic representations in each and every one of the worlds almost 200 States, to resolve pressing foreign policy questions with friends or foes.

31  A review of the GA’s history shows distinctive phases of development. In the first ten years of its existence, the GA was under the political leadership of the United States. Two events representative of this era were the creation of the Interim Committee and the adoption of the Uniting for Peace Resolution. The period after 1955, when the stagnation in membership was halted by the accession of fifteen new States, saw a growing influence of the Soviet Union (Union of Soviet Socialist Republics ‘USSR’) and its allies. In particular, the USSR emphatically supported all anti-colonial tendencies. The year 1960 brought the first great wave of admissions of newly independent States to the UN. From then on, the GA was increasingly under the sway of the States of developing countries that were no longer willing to accept the political leadership of the Soviet Union. It was no longer possible to speak of an identity of interests, given that, since the solution of the colonial question, the focus of the GA’s activity moved to economic and social questions. By economic standards, the Soviet Union, together with its allies, belonged for a long period to the group of the ‘haves’, which are the addressees of the demands of developing countries for material improvement of their situation. The culmination point of the formal dominance of the Third World in the GA were the years 1974 and 1975 when the GA proclaimed first a New International Economic Order (NIEO) and ‘determined’ that ‘zionism is a form of racism and racial discrimination’ (UNGA Res 3379 [XXX] ‘Elimination of All Forms of Racial Discrimination’ [10 November 1975] GAOR 30th Session Supp 34, 83). Soon it turned out that such ‘victories’ in voting battles were largely illusory. No constant pattern of power relations has emerged after the democratic revolution in Eastern Europe. The reputation of Russia was seriously damaged by its brutal actions in Chechnya; the United States and the United Kingdom were severely criticized on account of their invasion of Iraq in 2003 (Iraq, Invasion of [2003]); while China still remains in the background as far as world order issues are concerned, being primarily concerned with its economic interests. On many occasions, the United States is also viewed as blindly supporting Israel to the disadvantage of its Arab neighbours. Thus, none of the great powers has been acknowledged as exercising legitimate leadership at universal level through the GA.

32  Given the present distribution of votes in the GA, the original inclination, prevalent particularly in the Western World, to extend the powers of the GA at the expense of those of the SC, has diminished. The veto right of the permanent members of the SC is progressively seen as a necessary counterweight to the GA majority’s claim, bolstered by an egalitarian reasoning, to assume the role of a global legislative organ.

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