Resolutions of the General Assembly

Article 18 governs voting: each Member has one vote, and decisions on important questions require a two-thirds majority of the members present and voting, the list of important questions including recommendations on international peace and security, elections, admission, suspension and expulsion of Members, questions relating to the trusteeship system and budgetary questions.

So the accurate statement is: binding on the Organization, recommendatory to the Members.

How a recommendation can still matter in law

This is the substance of the topic, and there are four routes.

As evidence of custom

Custom needs practice and opinio juris. A resolution can supply evidence of the second and sometimes of the first.

The vote of a State for a resolution is a statement by that State, in a formal setting, of its position on a question of law. When a resolution is adopted unanimously or nearly so, and when its language is normative rather than hortatory, and when States afterwards behave consistently with it, the resolution becomes strong evidence that a customary rule exists.

The test to apply is the one from the North Sea Continental Shelf cases, worked in [Custom]. Ask whether the text is of a norm-creating character, whether participation is widespread and representative including the States specially affected, and whether practice has been extensive and virtually uniform with the belief that law required it. A resolution adopted by acclamation and ignored in practice fails the third limb, however impressive the vote.

As a declaration of existing law

Some resolutions are drafted as statements of what the law already is, and are titled Declarations for that reason.

Resolution 2625 (XXV) of 24 October 1970, the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, is the outstanding example. It was adopted without a vote after years of negotiation, and it elaborates seven principles: the prohibition of the threat or use of force; the peaceful settlement of disputes; non-intervention in matters within the domestic jurisdiction of any State; the duty of States to co-operate; the equal rights and self-determination of peoples; the sovereign equality of States; and the duty to fulfil in good faith the obligations assumed in accordance with the Charter. It is universally treated as an authoritative statement of how the Charter's article 2 is to be read.

Resolution 217 A (III) of 1948, the Universal Declaration of Human Rights, is the other great example. It was not binding when adopted, and much of it is now accepted as customary.

Resolution 1514 (XV) of 1960, the Declaration on the Granting of Independence to Colonial Countries and Peoples, is expressly referred to in article 140 of the Convention on the Law of the Sea, which is a striking measure of how far a resolution can travel.

As a step in a treaty's life

Many conventions begin as resolutions. The Assembly adopts a declaration of principles, a negotiating conference follows, and a treaty results. Resolution 1962 (XVIII) of 1963, the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, was turned almost word for word into the Outer Space Treaty of 1967, which is [International Space Law].

As soft law

Some resolutions are meant to guide conduct without binding: codes of conduct, sets of principles, standards. They are not law and they are not nothing. States comply with them, invoke them against each other, and build them into national legislation, and over time some of them harden.

The developing-country argument, and why it failed

In the 1960s and 1970s newly independent States, then a large majority in the Assembly, argued that Assembly resolutions adopted by an overwhelming majority should be treated as making law. The argument had a real basis: those States had had no part in making the customary law they inherited, and the Assembly was the one place where each State had one vote.

The high point was the New International Economic Order resolutions of 1974, including the Charter of Economic Rights and Duties of States, which asserted, among other things, a right to nationalise foreign property with compensation determined by the nationalising State's own law.

It failed, and the reason is the second limb of the North Sea test. The developed States, whose interests were specially affected, voted against or abstained, and their practice did not follow. Without extensive and virtually uniform practice including the specially affected States, no custom formed, whatever the size of the majority.

The episode is worth knowing because it shows exactly what a resolution can and cannot do: it can express what a majority of States believe the law should be, and it cannot by itself make that belief into law.

A worked example

The General Assembly adopts, by 150 votes to 3 with 20 abstentions, a Declaration on the Protection of Undersea Cables, stating that every State is under an obligation to prosecute persons who damage a submarine cable. Two years later State T's court refuses to prosecute, and State U complains that international law has been broken.

Is the Declaration binding? No. Under articles 10 and 13 the Assembly may only recommend, and a Declaration is a recommendation whatever it is called.

Did State T vote for it? If it did, that is evidence of its own view of the law and may found an argument that it is precluded from denying the rule. If it voted against, that is evidence the other way, and if it has objected consistently since, it may be a persistent objector.

Has the Declaration made custom? Apply the North Sea test. The language, an obligation to prosecute, is norm-creating. A vote of 150 to 3 is widespread and representative, but the question is whether the major cable-laying and cable-owning States are among the 150 or among the 3 and the 20, because they are the specially affected States. And what have States actually done in the two years? If several have legislated and prosecuted, the practice limb is being satisfied; if nothing has happened anywhere, it is not.

What is the honest advice to State U? That the Declaration is powerful evidence and not a rule, that its case depends on practice since 1974-style majorities do not by themselves make law, and that the strongest single piece of material would be State T's own vote and any legislation State T has passed in reliance on it.

Distinctions table

What it does NOT mean

"Not binding" does not mean "not important". Resolution 2625 is not binding and is cited by the International Court as the authoritative gloss on article 2 of the Charter.

A large majority does not make law. The New International Economic Order resolutions show it. What matters is whether practice, including that of specially affected States, follows.

A resolution binding on the Organization is not binding on international law. A budget assessment binds a Member to pay; it creates no rule for anybody.

Not everything the Assembly adopts is a Declaration. Most resolutions are routine, and the ones that matter for this topic are the small number drafted in normative language and adopted with overwhelming support.

Limits and criticism

The category is unstable. There is no accepted test for when a resolution has crossed from recommendation into custom, so the same resolution can be described as declaratory by one State and aspirational by another, and both can point to respectable authority.

Voting is cheap. A State can vote for a resolution costlessly and behave otherwise, which is why practice, not votes, has to carry the weight. That is also why the second and third limbs of the North Sea test do the real work.

Article 38 has never been amended to accommodate any of this. A student is therefore asked to fit into a 1920 list a phenomenon that did not exist when the list was drafted, and the fit is imperfect by construction.

Quick revision

Articles 10 to 14 of the Charter: the Assembly may discuss, consider and recommend. Article 13 is the codification provision, under which the International Law Commission exists. Article 12 bars recommendations while the Council is seised, unless the Council requests.

Contrast article 25: Members agree to accept and carry out the decisions of the Security Council.

Binding on the Organization, recommendatory to Members. Article 17, budget and apportionment of expenses. Article 18: one vote each; two-thirds of members present and voting on important questions.

Four ways a resolution matters: evidence of custom, especially of opinio juris; a declaration of existing law; a step towards a treaty; and soft law.

Resolution 2625 (XXV), 24 October 1970, Friendly Relations Declaration, adopted without a vote: seven principles, including the prohibition of force, peaceful settlement, non-intervention, co-operation, self-determination, sovereign equality, and good faith.

The New International Economic Order resolutions failed to make law because the specially affected States voted against and their practice did not follow: the second and third limbs of the North Sea test.

Test yourself

1. Are resolutions of the General Assembly binding? Give the Charter basis.

Not on Members. Articles 10, 11, 13 and 14 empower the Assembly to discuss, consider and make recommendations, and article 12 restricts even that while the Security Council is seised of a dispute. The contrast is article 25, by which Members agree to accept and carry out decisions of the Security Council. Resolutions on the Organization's own internal affairs do bind: the budget and the apportionment of expenses under article 17, admissions, elections and rules of procedure.

2. How can a non-binding resolution acquire legal effect?

Four ways. It can be evidence of custom, particularly of opinio juris, since a State's vote is a formal statement of its view of the law. It can be a declaration of law that already exists, as Resolution 2625 is of the principles in article 2 of the Charter. It can be a step towards a treaty, as Resolution 1962 (XVIII) of 1963 was towards the Outer Space Treaty. And it can operate as soft law, guiding conduct and hardening over time.

3. What test decides whether a resolution has produced a customary rule?

The test from the North Sea Continental Shelf cases, applied to the resolution's text and its aftermath. The provision must be of a norm-creating character rather than hortatory. Support must be widespread and representative, including the States whose interests are specially affected. And State practice must have been extensive and virtually uniform in the sense of the rule, accompanied by a general recognition that a rule of law was involved. A resolution adopted by acclamation and ignored in practice satisfies the first two limbs and fails the third.

4. Why did the New International Economic Order resolutions fail to make law, despite overwhelming majorities?

Because a majority in the Assembly is not the test. The developed States, whose interests were specially affected by rules on nationalisation and compensation, voted against or abstained, and their subsequent practice did not conform. Without extensive and virtually uniform practice including the specially affected States, no customary rule formed. The episode is the clearest demonstration that resolutions express what States think the law should be and cannot by themselves make it so.

5. State the seven principles of Resolution 2625 (XXV).

The prohibition of the threat or use of force against the territorial integrity or political independence of any State; the settlement of international disputes by peaceful means; the duty not to intervene in matters within the domestic jurisdiction of any State; the duty of States to co-operate with one another; the principle of equal rights and self-determination of peoples; the sovereign equality of States; and the duty to fulfil in good faith the obligations assumed in accordance with the Charter.

6. Distinguish the legal effect of a General Assembly resolution from that of a Security Council resolution.

An Assembly resolution is a recommendation to Members under articles 10 to 14, and binds only in the Organization's internal affairs such as the budget under article 17. A Security Council resolution taken under Chapter VII is binding: article 25 provides that Members agree to accept and carry out the decisions of the Council in accordance with the Charter, and article 48 requires the action required to carry out those decisions to be taken by the Members. The difference is one of legal quality and not of importance: Resolution 2625 binds nobody and is treated as an authoritative statement of the Charter's principles.