The General Assembly as a Protection Mechanism

In one line

The General Assembly protects human rights by setting standards that later become treaties or custom, by creating and funding the bodies that do the operational work, and by naming situations in resolutions, and none of these is a power to decide anything.

Function one: standard-setting

The Assembly's resolutions are the source of nearly every instrument in this book.

The Universal Declaration, resolution 217A (III) of 10 December 1948.

The two Covenants and the first Optional Protocol, resolution 2200A (XXI) of 16 December 1966.

The Declaration on the Granting of Independence to Colonial Countries and Peoples, resolution 1514 (XV) of 1960.

The Friendly Relations Declaration, resolution 2625 (XXV) of 1970.

The Declaration on the Establishment of a New International Economic Order and the Charter of Economic Rights and Duties of States, both 1974.

The Declaration on the Right to Development, resolution 41/128 of 1986.

And the core treaties on racial discrimination, discrimination against women, torture, the rights of the child, migrant workers, enforced disappearance and the rights of persons with disabilities, each adopted by an Assembly resolution and opened for signature.

The pattern is the same every time: a declaration first, a convention afterwards. The declaration establishes the vocabulary and tests the consensus; the convention converts it into obligation. Twenty-eight years separated the Universal Declaration from the Covenants coming into force.

How a recommendation becomes law

A resolution of the Assembly binds nobody, and saying otherwise is the commonest error in this area.

Three routes by which its content acquires binding force.

By treaty. The Assembly adopts the text and opens it for signature; States that ratify are bound by the treaty, not by the resolution.

By custom. Where a resolution states a rule, is adopted with wide support, and is followed by consistent practice accepted as law, the rule may become customary international law binding all States. Resolutions are evidence of opinio juris, and the Universal Declaration's core is generally treated as having passed into custom by this route.

By interpretation. A resolution may be evidence of the agreed meaning of a Charter term, and the Charter is binding, so a resolution interpreting human rights and fundamental freedoms in articles 55 and 56 gives content to an existing obligation. [The Charter of the United Nations, and the Pledge] sets out the argument.

Note what these three have in common. The resolution never binds by its own force; it binds by feeding into a source that does.

Function two: creating and funding the machinery

The Assembly created the High Commissioner by resolution 48/141 of 20 December 1993.

It created the Human Rights Council by resolution 60/251 of 15 March 2006, abolishing the Commission on Human Rights and relocating the function from a subsidiary of the Economic and Social Council to a subsidiary of itself.