Unblocking the UN Security Council: The Uniting for Peace Resolution

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1 Journal of Conflict & Security Law ß Oxford University Press 2013; all rights reserved. For permissions, please doi: /jcsl/krt016 Advance Access published on 13 August Unblocking the UN Security Council: The Uniting for Peace Resolution Andrew J. Carswell* Abstract The United Nations Security Council s recent blocked attempts to address the deteriorating political and humanitarian situation in Syria have renewed calls for UN reform. From the Cold War until the present day, the fact that the UN system has failed to live up to the lofty expectations of its framers can be attributed in significant part to the threat and exercise of the veto by individual Permanent Five (P5) members of the Council. This situation can be attributed to an unequal but politically necessary compromise that took place between the great Allied victors of the Second World War and the remainder of the UN membership. The result was a division of powers between the Security Council and the General Assembly that has never found a satisfactory equilibrium. In light of this predicament, the author argues that a 1950 General Assembly resolution should be re-examined in the modern context as a possible means of mitigating the bad faith exercise of the veto. The Uniting for Peace resolution, drafted by a P5 member, revealed the latent powers of the General Assembly existing within the UN Charter to make recommendations in lieu of a blocked Council, up to and including the use of force. However, it went too far when it assigned to the Assembly a role that effectively usurped the primary role of the Security Council in the maintenance of international peace and security. When P5 members realized that it potentially restricted their respective sovereign interests, it was relegated to obscurity. Nevertheless, read down to reflect a constitutional balance between the UN s primary organs, the resolution represents a viable tool capable of overcoming the worst effects of a veto exercised in circumstances that cry out for an international response. The aggressor who breaks [the UN Charter] will stand naked in infamy before the embattled conscience of an outraged world. Senator Arthur Vandenberg, June Introduction On 4 February 2012, just over a year following the first protests of the Arab Spring, the humanitarian situation in Syria commanded the world s attention. * The author is an international law practitioner and former military lawyer. He wishes to thank Professor Robert Kolb of the University of Geneva for his substantive review of a previous version of this paper; and Mary Anne Carswell for her helpful editorial comments. The text is written solely in the author s personal capacity. carswell.andrew@gmail.com... Journal of Conflict & Security Law (2013), Vol. 18 No. 3,

2 454 Andrew J. Carswell At that moment, there were credible reports that over 200 civilians had recently been killed by government forces in Homs, where the violence continued unabated. That day in New York, 13 of the United Nations Security Council s 15 members, backed by the League of Arab States, voted in favour of a draft resolution that condemned the Syrian authorities widespread and gross violations of human rights, demanded a cessation of violence on both sides, and called for a fair and inclusive Syrian-led political process aimed at addressing the concerns of Syria s people. However, the negative votes of Russia and China both permanent, vetoholding members of the Security Council were sufficient to defeat the resolution. The outcry of the Council s majority was profound: For months this Council has been held hostage by a couple of members. These members stand behind empty arguments and individual interests while delaying and seeking to strip bare any text that would pressure Assad to change his actions. This intransigence is even more shameful when you consider that at least one of these members continues to deliver weapons to Assad. 1 We regret that our vote was in vain owing to the very particular voting system that governs our decision-making process. That adds to the ranks of those affected by this matter not only the victims of the violence, whom, I underscore, are our prime concern, but also the effectiveness of the Security Council in adequately responding to the challenges facing it. 2 The facts speak for themselves. There is nothing in this text that should have triggered a veto. We removed every possible excuse. 3 After more than 11 months of brutal violence and repression by the Syrian Government; after more than 5,500 deaths; after the killing of almost 400 children; and after far too many peaceful protesters have been detained, tortured, raped and abused, today the Security Council again failed to assume its responsibilities and to live up to its mandate to maintain international peace and security. 4 Two weeks later, the UN General Assembly adopted a similarly-worded resolution by a margin of 137 to 12, with 17 abstentions. 5 The difference, of course, is that the Assembly s resolution constituted a recommendation without the binding force of a Security Council resolution, and was not backed by the possibility of subsequent coercive measures up to and including an authorization to use force under article 42 of the UN Charter. Indeed, it had little effect other than UNSC 6711th Meeting (4 February 2012) UN Doc S/PV.6711, 5 (Ambassador Rice, United States). ibid 8 (Ambassador Rosenthal, Guatemala). ibid 7 (Ambassador Grant, United Kingdom). ibid 4 (Ambassador Wittig, Germany). UNGA 66th Session, Res 66/253 A (16 February 2012).

3 Unblocking the UN Security Council 455 expressing the vast majority of the international community s abhorrence of the situation. The Assembly s frustration continued to accumulate and was vented on 3 August 2012, when a large majority took the highly unusual step of passing a resolution condemning the Security Council for its failure to take action. 6 In short, the UN s system of collective security was frozen by the votes of two permanent members of the Security Council, while the clearly expressed will of the international community to address an unfolding humanitarian disaster remained blocked. It is this very type of situation that has given rise to determined calls for Security Council reform since its creation, and particularly over the past decade. 7 What has remained largely overlooked since the 1950s, however, is the potential residing within the UN Charter to give the organization s second principal organ, the General Assembly, a more prominent role in the maintenance of international peace and security. If the strongest complaint levied against the 15-member Security Council is that it is not adequately representative, a substantial part of the solution may lie in the more democratic Assembly; not as a substitute for the primacy of the Security Council, but as a body capable of lawfully unblocking the Council and thereby ensuring the UN s continued relevance in the domain of international peace. This potential solution finds its substance in the Charter itself, and its form in General Assembly resolution 377 A (V) of 1950: Uniting for Peace, otherwise known as the Dean Acheson resolution. 8 Much has been written about the practice of the UN s two primary bodies pursuant to the Uniting for Peace resolution since its inception. 9 This practice reveals that the Security Council has, at least since 1982, lost all faith in the General Assembly s authority to exercise a residual responsibility for maintaining the peace; and as the last emergency special session of the Assembly initiated under the resolution demonstrates, by turning Uniting for Peace into yet another forum for rhetorical debate, the once useful strategy [is] threatening to become essentially useless. 10 This article argues that the short life of the resolution as part of the UN s mainstream vocabulary can be attributed to the fact that it went too far when it purported to bestow upon the Assembly a role that usurped the primacy of the Security Council. Once the five permanent members of the Security Council ( P5 ) realized that the resolution was a UNGA 66th Session, Res 66/253 B (3 August 2012). For an overview of UN reform attempts since 1950, see J Muller, Reforming the United Nations: The Struggle for Legitimacy (Koninklijke Brill NV 2006). UNGA 5th Session, Resolution 377 A (V) (3 November 1950). For recent examples see J Krasno and M Das, The Uniting for Peace Resolution and Other Ways of Circumventing the Authority of the Security Council in B Cronin and I Hurd (eds), The UN Security Council and the Politics of International Authority (Routledge 2008) ; D Zaum, The Security Council, the General Assembly, and War: the Uniting for Peace Resolution in V Lowe and others (eds), The United Nations Security Council and War: The Evolution of Thought and Practice since 1945 (OUP 2008); C Tomuschat, Uniting for Peace : ein Ruckblick nach 50 Jahren (2001) 76 Die Friedens-Warte, J Int Peace and Organization Krasno and Das (n 9) 186.

4 456 Andrew J. Carswell double-edged sword and indeed threatened their sovereign interests by potentially undermining their own respective veto powers it was relegated to obscurity. However, read down to reflect a lawful constitutional balance, the Uniting for Peace resolution holds significant modern potential as a safety valve capable of temporarily shifting the responsibility for the maintenance of international peace and security from a blocked Council to the world s fully inclusive conference of states, the General Assembly. The key to maintaining both the credibility and constitutionality of this process is ensuring that the Security Council plays the central role conferred upon it by the Charter. The objective of this article is not to recount the well-documented past practice that has, at least over the past three decades, diminished the Uniting for Peace resolution s reputation as a tool for the expression of the international will in the realm of peace and security. Instead, it aims to provide future Security Council majorities facing the veto with the strongest arguable legal case for referring situations to the General Assembly in appropriate situations; and to highlight the latent powers within the UN Charter that allow the Assembly to make recommendations concerning international peace and security up to and including the use of force in a constitutional manner. Such arguments can only be credibly made if they, unlike the drafters of the Uniting for Peace resolution, fully accept the primacy of the Council and the valid role of the veto as foundations of the UN system of collective security. This article s reasoning accordingly relies upon the construction of the UN Charter, and a reading of the delicate balance of powers between the UN s two principal organs; but insofar as the recommended procedure requires a value judgment on the part of the Security Council s majority regarding the constitutional validity of a veto, the argument also depends on the doctrine of abuse of rights in international law. Given this author s conclusion that the Uniting for Peace resolution is unconstitutional in its existing form, the article seeks to inform future practice along sound legal lines. 2. History of the Uniting for Peace Resolution The situation in Syria described above is but one manifestation of a UN system that has been under enormous stress since its 1945 inception. Much of that stress has related to the compromise that was struck in San Francisco between the Big Three countries 11 plus China and France on one hand, and the remainder of the Allied victors of the Second World War on the other. The result was an awkward divide between a hegemonic Security Council dominated by five vetoholding Great Powers with primary responsibility for international peace and security, 12 and a broadly representative General Assembly with loosely-defined United States, United Kingdom and the Soviet Union represented by Roosevelt, Churchill and Stalin, respectively. See art 24 of the UN Charter.

5 Unblocking the UN Security Council 457 powers of discussion and recommendation. Although the two principal UN organs potentially overlapped, the Security Council was granted the predominant position in the organization s core role. 13 The framers of the UN Charter foresaw that the Great Powers would accept the privilege of the veto 14 with a concomitant obligation to shoulder a more substantial burden for the maintenance of international peace and security. This vision quickly dissipated, as ideological differences between East and West crystallized in the Cold War. In 1950, five years following the signing of the UN Charter, it was abundantly clear that the treaty s central tenet, the existence of a functional Security Council, was foundering. The Soviet Union, as the sole ideological outcast within the permanent membership of the Council (the Taiwanese government still occupied the Chinese seat), exercised its negative vote 26 times between 1946 and 1949, severely undermining the Council s authority. The Soviets then boycotted the Council in January 1950 to protest the occupation of the Chinese seat by its government-in-exile rather than communist Peking. When North Korean troops crossed the 38th parallel into the newly recognized Republic of Korea in June of that same year, a small window opened for the Security Council. It passed resolution 82 on 25 June 1950 by nine uncontested votes (Yugoslavia abstained and the Soviets were absent from the 11 member body), determining pursuant to article 39 of the UN Charter that North Korea s attack represented a breach of the peace and opening the door to measures under articles 41 and 42. The second resolution (83) passed on 27 June by seven votes to one with two abstentions (the Soviets remained absent). It recommended that the Members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and restore international peace and security in that area. 15 Sixteen states volunteered military assets to fulfil the resolution s mandate, under the leadership of the USA. 16 However, realizing the magnitude of their strategic mistake, 17 the Soviets returned to the table in August and resumed their previous campaign, now blocking any additional efforts to address the shifting state of affairs in Korea See arts of the UN Charter. The so-called veto is in fact a label given to the phenomenon set out in art 27(3) of the UN Charter, in which substantive decisions of the Security Council cannot be made in the absence of the concurring votes of the P5. Such decisions require affirmative votes from nine of the Council s 15 members in other words, the votes of the P5 in addition to at least four of the 10 non-permanent members elected to two-year terms by the General Assembly in accordance with art 23. Decisions on procedural matters require nine affirmative votes, and are not subject to the veto. No viable option other than art 51 was available in the absence of art 43 agreements and therefore a standing UN force. CY Pak, Korea and the United Nations (Kluwer Law International 2000) 76. The Soviets stringently but ultimately unsuccessfully argued that Resolution 83 was unlawful in light of a plain reading of art 27 of the UN Charter, which requires the concurring votes of the permanent members and therefore implies that an absent member effectively vetoes any action taken by the Security Council.

6 458 Andrew J. Carswell US Secretary of State Dean Acheson, along with delegates Benjamin Cohen and John Foster Dulles, pressed for a creative reading of the UN Charter that would empower the General Assembly to step in to assist the struggling Council. At the September 1950 annual session of the General Assembly, the US delegation requested the addition of an item to the Assembly s agenda, accompanied by the following note: The Charter gives the General Assembly important functions to perform in the field of international peace and security, including the right to discuss any question relating to this field and the right to make recommendations. The experience of the United Nations in the five years since the Charter came into force has demonstrated the value of the Assembly s role. In the view of the United States, the Assembly s contribution can be enhanced both with respect to the avoidance of conflicts and with respect to the restoration of peace if need arises. The General Assembly should be enabled to meet on very short notice, in case of any breach of international peace or act of aggression, if the Security Council, because of lack of unanimity of the permanent members, is unable to discharge its primary responsibility for the maintenance of peace and security. To this end, the United States proposes that the Assembly should make provision for emergency special sessions to be convoked in twenty-four hours In promoting such a radical departure from the status quo before the Assembly, Cohen went so far as to put forward the US Supreme Court s historic decision in McCulloch v Maryland 19 as a persuasive precedent for constitutional interpretation, supporting the concept of the Charter as a living tree capable of adapting to shifting political reality. 20 In spite of strenuous objection from the Soviet delegation, General Assembly resolution 377 A (V), Uniting for Peace, was adopted by a vote of 52-5 on 3 November This vote reflected both the level of international frustration with Soviet tactics the resolution s preamble reaffirmed the duty of the permanent members to seek unanimity and to exercise restraint in the use of the veto and the fact that the General Assembly of the day contained a secure majority of Western states and their allies. The resolution has been employed to convene 10 emergency special sessions of the General Assembly since that time Note from the head of the US delegation to the UN Secretary General (20 September 1950) 5 UNGAOR (279th plenary meeting) Annexes (Agenda Item 68) 2 3 UN Doc A/ US 316 (1819). T Franck, Recourse to Force: State Action against Threats and Armed Attacks (CUP 2002) 33.

7 Unblocking the UN Security Council 459 However, the Assembly has recommended action inclusive of military force only once, in the context of the Korean conflict as it continued into Mechanics of the Resolution The core of the Uniting for Peace resolution, and today its only surviving mechanism, is Part A. The General Assembly: 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. If not in session at the time, the General Assembly may meet in emergency special session within twenty-four hours of the request therefor. Such emergency special session shall be called if requested by the Security Council on the vote of any seven members, or by a majority of the Members of the United Nations; Taken as a whole, the resolution is designed to allow the General Assembly to step as far as possible into the space left by a stagnant Security Council, employing a patchwork of measures designed to mirror the structure of Chapter VII of the UN Charter mutatis mutandis. 4. Constitutionality of the Resolution On the surface, the surviving elements of the resolution appear straightforward, and the notion of the emergency special session is indeed firmly etched into General Assembly practice. However, the relationship between the Security Council and the General Assembly is fluid and intricate. 23 The resolution s constitutional underpinnings, principally contained in articles of the UN Charter, go to the heart of the complex compromise reached between the P5 and the remainder of the UN membership in The first fundamental constitutional issue is whether one of the central features of the resolution the General Assembly s ability to recommend the use of force against states clashes with UNGA 5th Session, Res 498 (V) (1 February 1951). GA Res 377 (V) (n 8) 347. S Bailey and S Daws, The Procedure of the United Nations Security Council (3rd ed, OUP 1998) 281.

8 460 Andrew J. Carswell the prohibition against the threat or use of force contained in article 2(4) of the Charter. The remainder of the issues surround the delicate balance between the primary powers of the Security Council and the secondary powers of the Assembly in the realm of collective security. A. The Potential for Conflict between Recommendations to Use Force and Article 2(4) It is widely held that the prohibition against the threat or use of force set out in article 2(4), the cornerstone of peace in the Charter 24 which has taken on customary international legal status, 25 is by virtue of the structure of the Charter subject to two exhaustive exceptions : collective measures taken by the Security Council under Chapter VII, 26 and the exercise of self-defence by members in response to an armed attack pursuant to article 51. It has accordingly been argued that a recommendation by the General Assembly that states take forcible measures against another state would provoke a violation of the prohibition against the use of force. The reason given is that the Assembly is incapable of placing any forcible measures employed on a new juridical footing, 27 since no UN organ is qualified to either release a member state from its duties under international law or suspend the law s effect. 28 As a consequence, it is maintained that the use of force by states pursuant to a General Assembly recommendation could only comply with the UN Charter if it were to fall under another legitimate use of force title such as self-defence. Such a recommendation could only serve as an exhortation for states to exercise an existing right. 29 This argument is persuasive to the extent that the Assembly merely recommends the use of force. However, if such a recommendation is accompanied by a delegation of authority, a different logic applies C Waldock, The Regulation of the Use of Force by Individual States in International Law, Académie de Droit International de la Haye Recueil des Cours 81 (Librairie du Recueil Sirey 1952) 492. Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep para 190. Including regional arrangements authorized by the Security Council under art 53, which fall under Ch VIII. Another formal exception is art 107, today obsolete, which gave members carte blanche to take military action against their enemy states of the Second World War. Y Dinstein, War, Aggression and Self Defence (5th edn, CUP 2011) para 905. K Hailbronner and E Klein, Article 10 in B Simma (ed), The Charter of the United Nations: A Commentary (OUP 2002). Dinstein (n 27) para 906. See also J Stone, Legal Controls of International Conflict (Rinehart and Co 1959) 273.

9 Unblocking the UN Security Council 461 (i) Applicability of Article 2(4) of the Charter to UN Organs From the outset, it is important to note that the so-called Security Council exception to the prohibition against the threat or use of force is not an exception per se. As a UN organ, the Security Council s authority to employ measures up to and including force under Chapter VII falls outside the ambit of article 2(4), whose prohibition specifically binds Members as such and not the Organization. 30 As stated by Delbrück: The SC is an organ of the UN and therefore derives its powers from the UN Charter itself. As an organ of the UN, the SC acts on behalf of the organization and not on behalf of the individual member States. Accordingly, its actions and decisions are attributed to the UN Organization as a whole and not to individual members such as, for instance, the members of the SC. 31 This interpretation is reinforced by a plain reading of article 42: the power to take forceful measures is attributed to the Security Council itself and hence is not captured by the article 2(4) prohibition applicable to member states. 32 Moreover, turning to treaty construction, the article 42 power is not preceded by the words nothing in the present Charter shall impair [the following right] as it is in article 51 in that case regarding individual or collective self-defence which is the only genuine exception to article 2(4). Accordingly, as long as the actions of UN states can be ascribed to the Security Council, they are the actions of the UN Organization as such and are not captured by article 2(4). As the UN s second principal organ, the General Assembly also acts on behalf of the Organization. This obvious point is evident on a plain reading of articles 2 and 7, and was reaffirmed in the Certain Expenses Advisory Opinion of the International Court of Justice (ICJ). 33 As such, the key question is whether the actions of individual member states can be attributed to either the Security Council or the General Assembly, and therefore the UN Organization itself The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles:...4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. J Delbrück, Article 24 in Simma (n 28) 449. Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.... Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 1962, 168.

10 462 Andrew J. Carswell (ii) The Effect of Security Council Resolutions on UN Members As the flip side of Delbrück s assertion, 34 it is today uncontroversial that the actions of individual UN member states taken within the scope of a Chapter VII resolution of the Security Council are, by virtue of article 24 and consistent practice, subsumed within the Council s authority. This notion is expressed as a delegation of Council powers to members, 35 one consequence of which is that the latter are acting on behalf of the UN Organization and, in accordance with the preceding analysis, are not captured by article 2(4). However, the concept of Security Council delegation has not always been without controversy: as drafted, the Charter envisaged that pursuant to special agreements the UN would have its own armed forces, supplied by member states and under the Council s control. In the 1962 Certain Expenses Advisory Opinion, 36 the ICJ considered the constitutionality of Security Council enforcement measures under Chapter VII in light of member states refusal, for political reasons, to enter into such special agreements under article 43. Indeed, article 106 creates a temporary security arrangement outside the framework of Chapter VII and the Security Council pending the coming into force of article 43 agreements. It provides for joint action on behalf of the UN by the four great post-war Allied powers 37 plus France, and thereby implies that article 42 is of no force and effect in the absence of an article 43 UN military capability. 38 Nevertheless, the ICJ rejected the Soviet bloc s argument that the Security Council was prevented from authorizing military action, as such a conclusion would leave the Council impotent in the face of an emergency situation when agreements under Article 43 have not been concluded. 39 This teleological interpretation of the Charter was then confirmed by legal commentators 40 and by the uniform practice of the Security Council from the 1990s onward, as it regularly authorized member states to take all necessary means to carry out a particular coercive mandate without obliging states to provide the necessary military capacity for such operations. 41 On its face, this custom contravened article 2(4), insofar as article 42 explicitly concerns action authored by the Security Council itself, whereas individual member states remain bound by the prohibition against the threat or use of force. However, the interpretation of the ICJ, reinforced by consistent practice, recognizes that the Charter is not a static instrument and must be interpreted in J Delbrück (n 31). D Sarooshi, The United Nations and the Development of Collective Security: The Delegation by the UN Security Council of its Chapter VII Powers (OUP 1999) Chs 1 and 4. Certain Expenses of the United Nations (n 33) United States, United Kingdom, Soviet Union and China. J Frowein and N Krisch, Article 42 in Simma (n 28) 756. Certain Expenses (n 33) 167. For a list of authors, see Frowein and Krisch (n 38) 757. See, for example, Security Council Resolution 678 authorizing states to terminate the Iraqi occupation of Kuwait.

11 Unblocking the UN Security Council 463 such a way as to further its essential object and purpose. As Ambassador Cohen had suggested in 1950, the Charter is a living tree. (iii) The effect of General Assembly Recommendations on UN Members A parallel reasoning can be applied to a recommendation to use force by the General Assembly under the Uniting for Peace resolution. The arguments put forward by the US delegation in 1950 and reflected in the Uniting for Peace resolution suggest that the mala fide employment of the veto by permanent members obstructs the mission of the UN and demands a legal solution. The tone of the resolution is set in the preamble, which reads as follows: Reaffirming the importance of the exercise by the Security Council of its primary responsibility for the maintenance of international peace and security, and the duty of the permanent members to seek unanimity and to exercise restraint in the use of the veto,... Conscious that failure of the Security Council to discharge its responsibilities on behalf of all the Member States... does not relieve Member States of their obligations or the United Nations of its responsibility under the Charter to maintain international peace and security, Recognising in particular that such failure does not deprive the General Assembly of its rights or relieve it of its responsibilities under the Charter in regard to the maintenance of international peace and security... Just as the failure of states to conclude agreements pursuant to article 43 erected a legal obstacle that threatened to undermine the very raison-d être of the UN, the alleged misuse of the veto that had manifested itself between 1945 and 1950 stood to block the central competence of the organization. In both cases, the drafters of the Charter had not envisaged such a predicament; and in both cases, state practice confirmed the validity of teleological constitutional interpretations. Practice in the former case has been stronger than the latter although, as this article contends, the door is open for states to benefit from a more robust General Assembly insofar as the Security Council maintains its primary role in the process. As established above, the threat or use of force by a member state will not be captured by the article 2(4) prohibition if carried out on behalf of the UN Organization. Unlike the Security Council, the General Assembly does not benefit from article 24 or Chapter VII, and the effect of its decisions is nonbinding. Accordingly, the central question is whether the actions of self-selecting UN member states taken within the scope of a General Assembly recommendation inclusive of forceful measures may be considered the actions of the UN Organization, and thereby exempt from the article 2(4) prohibition. Where the Assembly considers a matter and makes recommendations of its own volition, it

12 464 Andrew J. Carswell benefits solely from the limited powers contained in Chapter IV of the Charter. Nevertheless, although it is the Security Council that bears the primary responsibility for the maintenance of international peace in security, the International Court of Justice affirmed in the Certain Expenses Advisory Opinion that its responsibility is not exclusive, and that the Assembly has a secondary responsibility in the same domain. 42 The extent of that secondary responsibility was not elaborated by the Court, except in relation to the financing of peacekeeping missions. However, as the drafters of the Uniting for Peace resolution had asserted in 1950, the paralysis of the Security Council does not relieve Member States of their obligations or the United Nations of its responsibility under the Charter to maintain international peace and security - albeit within constitutional constraints. The Charter s system of collective security is primarily managed through the Security Council s Chapter VII powers. However, by virtue of article 1(1), maintaining international peace and security through collective measures is a Purpose of the UN writ large. Whether the action of a given UN member state may be attributed to the UN Organization itself depends on the collective nature of that action. As Kelsen eloquently describes: The collective character of the security established by a legal order manifests itself, firstly, in the fact that the use of force is forbidden by the legal order which is valid equally for all members of the community constituted by the order, and, secondly, in the fact that the reaction against an illegal use of force is a collective action. It is a collective action because it is an action performed by organs of the community and is therefore imputable to the community, even if the individuals concerned are not special organs When the General Assembly assumes its secondary responsibility for the maintenance of international peace and security, it represents the security community to which Kelsen refers. Insofar as member states take action within the scope of a recommendation of the UN s second principal organ, that action may be subsumed within the authority of the UN Organization. What may take place in effect is a delegation from the Assembly to willing members states - not of a particular power under Chapter IV of the Charter, but of the authority to act on behalf of the UN Organization. It is well established that organs of international organizations have a general competence to delegate powers to subsidiary bodies. 44 In the case of the Security Council, the practice of delegating its Chapter VII powers to member states was Certain Expenses of the United Nations (n 33) 163. H Kelsen, Collective Security under International Law (International Law Studies, Naval War College 1954) 7. See for example Meroni v. High Authority, European Court of Justice, Case 9156, [1958] ECR 133.

13 Unblocking the UN Security Council 465 founded on a teleological reading of the Charter and subsequent practice. As discussed above, the necessity of such an arrangement resulted from the refusal of states to enter article 43 special agreements, and the consequent neutralization of the collective enforcement capability of the UN. As a general principle of international law, a delegation of power must be explicit, and the authority delegated must not exceed the principal organ s own authority. 45 Furthermore, the delegating body must maintain overall authority and control, and remain capable of rescinding that power. 46 This last requirement has presented a challenge in practice, and the Security Council was at one stage criticized for giving members carte blanche delegations of power. 47 However, the Council has responded to its critics by defining mandates more narrowly, decreasing the time frame in which those mandates are to be executed, and requiring thorough reporting. 48 In the case of the General Assembly, the validity of a delegation of its authority and indeed whether the actions of willing member states are attributable to the UN Organization will be judged based on the principle that responsibility itself must not be delegated. 49 Accordingly, the wording of the resolution must clearly define the objective and scope of the use of force, and should specify the time frame. Furthermore, the Assembly has an obligation to scrutinize that authority (possibly inclusive of a reporting requirement) and, where relevant, rescind it through an additional resolution. It is obvious that member states are not obliged to act on the basis of an Assembly recommendation. Nevertheless, as the Security Council has demonstrated through its recent practice, even non-binding decisions and recommendations are sufficient to delegate its Chapter VII powers to willing states. 50 Although there is no similar practice upon which to evaluate the legality of delegating authority to states through a General Assembly recommendation, the imperative of drawing such a parallel is clear from the perspective of ensuring the viability of the UN system of collective security. In conclusion, the actions of UN members, pursued within the scope of a General Assembly recommendation to use force, will be subsumed within the authority of the UN Organization in cases where an effective delegation of authority has taken place, and will not therefore be captured by the article 2(4) prohibition on the threat or use of force. However, as is argued in Section B, the General Assembly cannot initiate the Uniting for Peace procedure of its own accord without violating the Charter s internal division of responsibilities between the principal UN organs. Furthermore, the case for Sarooshi (n 35) 42; N Blokker, Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by Coalitions of the Able and Willing (2000) 11(3) at 552. Sarooshi (n 35) 36-41; Blokker (n 45) 552. Blokker (n 45) Ibid 561. Ibid 552. Dinstein (n 27) para 887.

14 466 Andrew J. Carswell the legality of force recommended by the Assembly is buttressed where the Security Council itself initiates the Uniting for Peace procedure. (iv) The role of a Security Council referral to the General Assembly Where a qualified majority of the Council refers a matter via procedural vote to the Assembly expressly in accordance with the Uniting for Peace procedure, there are two consequences relevant to the potential applicability of article 2(4). First, the Council majority implicitly qualifies the situation as a threat to the peace, breach of the peace or act of aggression that would normally give rise to its Chapter VII powers. However, given its inability to proceed as a consequence of the lack of unanimity of the P5, it requires the Assembly to consider the matter, 51 and in so doing triggers the latter s secondary responsibility for the maintenance of international peace and security. Second, by tasking the Assembly with making appropriate recommendations to Members for collective measures inclusive of armed force in the case of a breach of the peace or act of aggression, 52 the Council majority endorses the collective nature of action taken pursuant to such recommendations. It is important to note that following an article 27 veto the Council cannot delegate its Chapter VII powers to the Assembly: it is not possible for the principal to delegate powers that it does not itself enjoy as a result of the exercise of a legitimate constitutional function. 53 However, through its referral, the Council does effectively activate the Assembly s secondary role in the realm of collective security, eliminating any controversy concerning the qualification of the matter as a threat to the peace, breach of the peace or act of aggression demanding the attention of the UN Organization. Most importantly, a referral from the Council bestows a degree of moral legitimacy on that secondary role. In summary, where the General Assembly exercises its secondary responsibility for the maintenance of international peace and security by passing a substantive resolution recommending the use of force by willing UN members, the potential application of article 2(4) to those members depends on the validity of a delegation from the Assembly of the authority to act on behalf of the UN. If the delegation is made in conformity with the principles of general international law that is, reserving the Assembly s responsibility the recipients of that authority can be said to be acting on behalf of the UN Organization, and therefore outside the ambit of article 2(4). The case for the legality of the use of force is clearer where the Security Council refers the matter to the General Assembly, thereby legally qualifying the situation and endorsing the latter s substitutive role in the pursuit of collective security. Where a successful delegation of authority from the Assembly to member states takes place, there is no need General Assembly Resolution 377 (V) (n 8). Idem. Sarooshi (n 35) 9.

15 Unblocking the UN Security Council 467 to tie the use of force to another Charter heading such as article 51 selfdefence. 54 However, whether such an internal attribution of power to the UN s second organ can be reconciled with Chapter IV of the Charter is a separate issue addressed in the following section. B. Limitations of the General Assembly in the Realm of International Peace A great deal has been written on the subject of the internal constitutionality of the Uniting for Peace resolution, both prior to and following the Certain Expenses case. 55 The controversy surrounding the resolution harks back to the tension between small- and medium-sized powers on the one hand and the P5 on the other at the San Francisco Conference in Smaller states advocated for a significant role for the General Assembly in the application of enforcement measures, but the great powers were unwilling to cede that responsibility. 56 The resulting compromise was a series of loosely worded provisions governing the Assembly s powers of discussion and recommendation in articles of the Charter, delimited only insofar as those powers directly conflicted with the Security Council s overriding mandate. 57 It is clear from both the structure of these articles and their travaux préparatoires that the General Assembly was understood to be barred from entering the specific domain of collective security occupied by the Security Council under Chapter VII. 58 As such, early critics of the Uniting for Peace resolution, particularly the Soviets, argued that the Resolution was abandoning one of the fundamental working principles of the United Nations which was built up on the maintenance of peace through the unanimity of the permanent members of the Security Council. 59 However, the division of powers between the Security Council and the General Assembly is not as clear-cut as these critics suggested. Article 24 of the UN Charter states: Members confer on the Security Council primary responsibility for the maintenance of international peace and security.... Following the decision of the ICJ in the Certain Expenses case, it is no longer controversial that primary does not equate to exclusive responsibility, leaving the General Assembly with a residual or secondary responsibility within As suggested by Dinstein (n 27). See, for example, H Kelsen, Is the Acheson Plan Constitutional? (1950) 3 The Western Political Quarterly ; LH Woolsey, The Uniting for Peace Resolution and the United Nations (1951) 45 AJIL ; J Andrassy, Uniting for Peace (1956) 50 AJIL ; DW Bowett, United Nations Forces: A Legal Study of UN Practice (Stevens and Sons 1964) ; H Reicher, The Uniting for Peace Resolution on the Thirtieth Anniversary of Its Passage (1981) 20 Columbia J Transnational L L Goodrich, E Hambro and A Simons, Charter of the United Nations: Commentary and Documents (3rd edn, Columbia UP 1969) 115. See art 12 of the UN Charter. See Hailbronner and Klein (n 28) 263. Andrassy (n 55) 563.

16 468 Andrew J. Carswell the same domain. 60 What remains controversial is the timing and extent of that responsibility. The ICJ made no reference to the Uniting for Peace resolution, and only explicitly approved the General Assembly s activity with regard to traditional peacekeeping missions, leaving open the broader question of its authority to recommend measures up to and including force in the pursuit of international peace and security. (i) The Permissive Effect of General Assembly Resolutions The starting point for an analysis of the General Assembly s relative powers is the confirmation of the prima facie validity of the body s resolutions in the jurisprudence of the International Court of Justice. In its Namibia Advisory Opinion, the ICJ confirmed that a resolution of a properly constituted organ of the United Nations which is passed in accordance with the organ s rules of procedure, and is declared by its President to have been so passed, must be presumed to have been validly adopted. 61 Second, as the Court affirmed in Certain Expenses, when the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization. 62 Having established the prima facie validity of Assembly resolutions, but recognizing the superior relative position of the Security Council, we turn to the more controversial constitutional powers bestowed by the UN Charter. (ii) Article 12: Primacy of the Security Council The General Assembly s wide-ranging power of recommendation set out in article 10 of the Charter and refined by article 11 is, by virtue of article 12, subject to the primacy of the Security Council when the latter is exercising in respect of any dispute. This provision ensures that the two principal organs of the UN do not find themselves in a position of conflict. One of the early controversies of the Uniting for Peace resolution surrounded the allegation that it takes the General Assembly into the exclusive domain of the Security Council and thereby oversteps article Under the terms of the resolution, where the Council remains paralyzed in the face of a perceived threat to the peace, breach of the peace or act of aggression, the Assembly is entitled to recommend collective measures (including use of force in the latter two situations) regardless of Certain Expenses of the United Nations (n 33) 163. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971], ICJ Rep 22. Certain Expense of the United Nations (n 33) 168. Woolsey (n 55) 134.

17 Unblocking the UN Security Council 469 the fact that the Council is indeed seized of the dispute, albeit in a non-productive manner. However, in its 2004 Wall Advisory Opinion, the ICJ recognized that four decades of practice had modified article 12(1) so as to permit the General Assembly to deal with a matter in parallel with the Security Council. The Court accepted that in practice It is often the case that, while the Security Council has tended to focus on the aspects of such matters related to international peace and security, the General Assembly has taken a broader view, considering also their humanitarian, social and economic aspects. 64 It concluded that the Assembly s unilateral decision to adopt a resolution which sought an advisory opinion from the Court under the Uniting for Peace mechanism did not violate article 12(1). Nevertheless, taking into account situations in which the Assembly might go well beyond requesting an advisory opinion and recommend measures up to and including the use of force, thereby encroaching on the constitutional domain of the Security Council, it is important to analyse the relationship between the resolution and article 12 more closely. It is apparent from the wording of the resolution, which is triggered exclusively by a failure of the Security Council to exercise its primary responsibility, that it is aimed at situations in which article 12(1) does not apply that is, where the Security Council is not exercising in respect of any dispute or situation. The resolution s original unqualified supporters contended that whenever the veto is employed by a permanent member, the Council stops exercising within the meaning of article 12(1). 65 However, the fact remains that article 27(3) creates a veto power that is contemplated as an essential mechanism for the fulfilment of the Security Council s Chapter VII mandate; its exercise does not necessarily connote the Council s failure. 66 Indeed, as Higgins declares, the veto is an integral part of what was provided for in the Charter: the Permanent Members were certainly intended to have this power to control the use of force by the Security Council. 67 Interpreted in a manner that recognizes the prima facie constitutionality of the veto s use, the relevant segment of the resolution because of lack of unanimity of the permanent members, [the Security Council] fails to exercise its primary responsibility premises General Assembly action upon two conditions: the veto, and, as a possible consequence, a failure of the Council to exercise its primary responsibility. This reading of the resolution, which accords with the object and purpose of the UN Charter, recognizes that the employment of the veto is a necessary but not sufficient prerequisite for the exercise of the General Assembly s substitutive role. It is only when both conditions have been met that it can be concluded that the Security Council has stopped Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep See for example the statement of John Foster Dulles, UNGAOR 5th Session, 299th Plenary Meeting (1 November 1950) 294. See also Andrassy (n 55) 572. Hailbronner and Klein (n 28) 291. R Higgins, Problems and Process: International Law and How We Use It (OUP 1994) 262.