The General Assembly

Article 10 is as wide as the Charter itself, and it has exactly one limit of substance, article 12, and one limit of form, the word recommendations.

Peace and security, article 11

11(1). The Assembly may consider the general principles of cooperation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments, and make recommendations on those principles to the Members or the Council or both.

11(2). It may discuss any questions relating to the maintenance of international peace and security brought before it by any Member, by the Security Council, or by a non-Member state in accordance with article 35(2), and, except as provided in article 12, may make recommendations to the state or states concerned or to the Council or both. Any such question on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion.

11(3). The Assembly may call the attention of the Security Council to situations which are likely to endanger international peace and security.

11(4). The powers in article 11 shall not limit the general scope of article 10.

The word "action" in 11(2) is the whole controversy. If action means enforcement action under Chapter VII, then only the Council may take it and the Assembly must refer; if it means any action at all, the Assembly's role shrinks drastically. The narrower reading of "action", confining it to coercive action, is the one that supports the practice under the Uniting for Peace resolution.

The article 12 restriction

While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.

12(2). The Secretary-General, with the consent of the Security Council, shall notify the Assembly at each session of matters relative to the maintenance of international peace and security being dealt with by the Council, and shall notify the Assembly, or the Members if it is not in session, immediately the Council ceases to deal with such matters.

Note what article 12 forbids and what it permits. It forbids recommendation, not discussion. And it bites only while the Council is exercising its functions in respect of that dispute, which in practice has been read narrowly: the mere presence of an item on the Council's agenda has not been treated as barring the Assembly, and the two organs have increasingly dealt with the same situations in parallel.

Uniting for Peace. By resolution 377(V) of 3 November 1950 the Assembly resolved that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility where there appears to be a threat to the peace, breach of the peace or act of aggression, the Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including the use of armed force where necessary, and may meet in emergency special session within twenty four hours. The resolution is a resolution and not an amendment, so it cannot enlarge the Assembly's powers beyond recommendation; what it does is organise the exercise of powers the Assembly already has under articles 10, 11 and 14 when the Council is paralysed. Its legality was contested from the start and its practice is now long-standing.

The development of law, article 13

The Assembly shall initiate studies and make recommendations for the purpose of:

(a) promoting international cooperation in the political field and encouraging the progressive development of international law and its codification;

(b) promoting international cooperation in the economic, social, cultural, educational and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.

Article 13(1)(a) is the constitutional basis of the International Law Commission, established by the Assembly in 1947, whose drafts became the Vienna Convention on the Law of Treaties, the Vienna Convention on Diplomatic Relations and the Articles on State Responsibility used throughout this book. So the article that looks least practical has produced the most law.

Peaceful adjustment, article 14

Subject to article 12, the Assembly may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the Charter's Purposes and Principles.

Regardless of origin is a deliberately wide phrase, and article 14 is not confined to threats to the peace, so it reaches situations well below the Chapter VII threshold.

Supervision and money, articles 15 to 17

Article 15. The Assembly shall receive and consider annual and special reports from the Security Council, including an account of the measures the Council has decided upon or taken, and reports from the other organs.

Article 16. Trusteeship functions under Chapters XII and XIII, including approval of the trusteeship agreements for areas not designated as strategic, dealt with in [The Trusteeship System and the Trusteeship Council].

Article 17, the real power.

17(1). The Assembly shall consider and approve the budget of the Organization.

17(2). The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly.

17(3). It shall consider and approve financial and budgetary arrangements with the specialized agencies and examine their administrative budgets with a view to making recommendations.

Article 17 is not a power of recommendation. Approving the budget and apportioning expenses are decisions binding on the Members, which is why article 19 has teeth and why the budget is the one place the Assembly's majority tells.

Procedure: articles 20 to 22

Article 20. The Assembly meets in regular annual sessions and in special sessions as occasion may require, special sessions being convoked by the Secretary-General at the request of the Security Council or of a majority of the Members.

Article 21. It adopts its own rules of procedure and elects its President for each session.

Article 22. It may establish such subsidiary organs as it deems necessary for the performance of its functions. Under this article the Assembly created the International Law Commission, the Human Rights Council, and the bodies dealt with in [UNICEF] and [UNDP and UNEP].

The legal effect of what it adopts

The Assembly's resolutions are recommendations except where the Charter provides otherwise, and the exceptions are internal: the budget under article 17, apportionment of expenses, elections, admission, suspension and expulsion, and the Assembly's own rules.

Their legal significance is a different question from their binding force, and it is worked in [Resolutions of the General Assembly]. In short: a resolution may state existing custom, may evidence the opinio juris of the States voting for it, and may begin the process by which a rule crystallises, and the manner of adoption, the language used and the conduct of States afterwards decide which of those it does. What it cannot do is legislate.

A worked example

The Security Council is seised of a conflict between States AA and BB but is deadlocked by a veto. State CC asks the Assembly to act. The Assembly wishes to recommend a ceasefire, to recommend that Members impose sanctions, to establish a commission of inquiry, and to charge the cost of the commission to the Members.

May the Assembly discuss it? Yes. Article 10 permits discussion of any question within the scope of the Charter, and article 12 forbids only recommendations.

May it recommend a ceasefire while the Council is seised? Article 12(1) bars a recommendation while the Council is exercising its functions in respect of the dispute. Where the Council is deadlocked and taking no action, practice has treated it as no longer exercising its functions, and resolution 377(V) provides for the Assembly to consider the matter immediately with a view to appropriate recommendations, meeting in emergency special session within twenty four hours if required.

May it recommend sanctions? It may recommend them, including collective measures. It cannot order them, because article 25 attaches binding force to decisions of the Security Council and not of the Assembly, and article 11(2) requires any question on which action is necessary to be referred to the Council.

May it establish a commission of inquiry? Yes. Article 22 permits such subsidiary organs as it deems necessary.

May it charge Members with the cost? Yes. Article 17(2) provides that the expenses of the Organization shall be borne by the Members as apportioned by the General Assembly, and that apportionment binds. A Member that refuses to pay risks article 19.

Change one fact: the Council is actively adopting resolutions on the dispute. Then article 12(1) bars a recommendation unless the Council requests one, and the Assembly is left with discussion, with calling the Council's attention under article 11(3), and with its budgetary and organisational powers.

Distinctions table

What it does NOT mean

The Assembly does not legislate. Its acts on substance are recommendations.

Article 12 does not bar discussion. It bars recommendation while the Council is exercising its functions.

Uniting for Peace did not amend the Charter. A resolution cannot; it organises powers the Assembly already had.

Abstentions do not defeat a resolution. Majorities are of members present and voting.

Article 19 is not discretionary in form. The loss of vote follows the arrears, subject to the Assembly's power to excuse conditions beyond the Member's control.

Budgetary decisions are not recommendations. Article 17(2) apportionment binds.

Limits and criticism

The Assembly's authority is moral and political rather than legal, and the gap between the majorities it can assemble and the compliance it can secure is the standing weakness of the organ.

Article 12 has been quietly drained by a practice under which the Assembly recommends on matters simultaneously before the Council, which is convenient and difficult to square with the text.

Uniting for Peace remains constitutionally contested, because article 11(2) requires questions on which action is necessary to be referred to the Council and article 24 gives the Council primary responsibility, and the answer depends on reading "action" as coercive action alone.

One State one vote produces majorities without power. Resolutions supported by States representing a large majority of the world's population and a small fraction of its resources bind nobody, which is the structural reason the Assembly's law-making role runs through custom rather than through its own resolutions.

Quick revision

Article 9: all Members, not more than five representatives each. Article 18: one vote each; two thirds of those present and voting on important questions, the list including peace and security recommendations, elections to the Council, ECOSOC and Trusteeship Council, admission, suspension, expulsion, trusteeship operation and budgetary questions; other questions by simple majority, including adding new categories.

Article 19: arrears equalling two full years cost the vote, unless beyond the Member's control.

Article 10: may discuss any question within the Charter and recommend, except as provided in article 12. Article 11: general principles including disarmament; questions of peace brought by a Member, the Council or a non-Member under article 35(2); any question on which action is necessary goes to the Council; may call the Council's attention. Article 12: no recommendation while the Council is exercising its functions, unless requested.

Article 13: studies and recommendations for the progressive development of international law and its codification, the basis of the International Law Commission. Article 14: peaceful adjustment of any situation regardless of origin. Article 15: reports from the Council.

Article 17: approves the budget; expenses borne as apportioned, which binds. Article 20: annual and special sessions, special ones convoked by the Secretary-General at the request of the Council or a majority of Members. Article 22: subsidiary organs.

Resolution 377(V), Uniting for Peace, 3 November 1950: where the Council fails for lack of unanimity of the permanent members, the Assembly considers the matter immediately and may recommend collective measures including the use of armed force, meeting in emergency special session within twenty four hours.

Test yourself

1. What may the General Assembly discuss, and what may it recommend?

By article 10 it may discuss any questions or matters within the scope of the Charter or relating to the powers and functions of any organ provided for in the Charter, and, except as provided in article 12, may make recommendations to the Members or to the Security Council or to both. Article 11 adds specific powers over the general principles of cooperation in the maintenance of peace and security, including disarmament, and over questions of peace and security brought before it by a Member, by the Council, or by a non-Member under article 35(2). Article 14 permits it to recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations. The output on substance is recommendation, and article 11(4) confirms that the specific powers do not limit the general scope of article 10.

2. Explain article 12 and how it has been applied.

Article 12(1) provides that while the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the Charter, the Assembly shall not make any recommendation with regard to that dispute or situation unless the Council so requests. Two limits are important. It bars recommendation and not discussion, so the Assembly may debate a matter before the Council. And it operates only while the Council is exercising its functions, which practice has read narrowly, so that the presence of an item on the Council's agenda has not by itself prevented the Assembly from acting, and the two organs have increasingly addressed the same situations in parallel. Article 12(2) supports the scheme by requiring the Secretary-General, with the Council's consent, to notify the Assembly of the matters the Council is dealing with and immediately it ceases to deal with them.

3. What is the Uniting for Peace resolution, and what is its legal standing?

Resolution 377(V) of 3 November 1950 resolved 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 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 the use of armed force where necessary, and may meet in emergency special session convened within twenty four hours. Its legal standing is that of a resolution and not an amendment, so it cannot confer powers the Charter withholds. What it does is organise the exercise of powers the Assembly already possesses under articles 10, 11 and 14, and its constitutionality has been contested from the outset, chiefly because article 11(2) requires questions on which action is necessary to be referred to the Council.

4. Are any acts of the General Assembly binding?

Yes, but they are internal or financial rather than substantive. Article 17(1) provides that the Assembly shall consider and approve the budget of the Organization, and article 17(2) that the expenses of the Organization shall be borne by the Members as apportioned by the General Assembly, and that apportionment binds Members, with article 19 depriving a Member of its vote where arrears equal or exceed the contributions due for the preceding two full years. Elections, admission of Members under article 4(2), suspension under article 5, expulsion under article 6 and the adoption of its own rules of procedure under article 21 are also operative acts. On matters of substance affecting States, the Assembly recommends.

5. Explain article 18 and the significance of "present and voting".

Article 18(1) gives each member of the Assembly one vote. Article 18(2) requires a two thirds majority of the members present and voting for important questions, and lists them: recommendations on the maintenance of international peace and security, elections to the Security Council, the Economic and Social Council and the Trusteeship Council under article 86(1)(c), admission of new Members, suspension of rights and privileges, expulsion, questions relating to the operation of the trusteeship system, and budgetary questions. Article 18(3) sends other questions, including the determination of additional categories of important question, to a simple majority of those present and voting. Present and voting counts only affirmative and negative votes, so abstentions do not obstruct a majority, and a resolution may accordingly pass with the support of well under two thirds of the total membership.

6. How has the Assembly contributed to the development of international law?

Through article 13(1)(a), which directs it to initiate studies and make recommendations for promoting international cooperation in the political field and encouraging the progressive development of international law and its codification, and through article 22, under which it may establish subsidiary organs. Acting under both, it created the International Law Commission in 1947, and the Commission's drafts became the Vienna Convention on the Law of Treaties, the Vienna Convention on Diplomatic Relations, and the Articles on Responsibility of States for Internationally Wrongful Acts. Its resolutions have also contributed indirectly, since a resolution may declare existing custom, may evidence the opinio juris of the States supporting it, and may set in motion the process by which a rule crystallises, though it cannot by itself create law.