The United Nations, whose membership comprises almost all the States in the world, is founded on the principle of the equal worth of every human being. ~ Kofi Annan
It was Winston Churchill who said that the United Nations was not designed to get us into heaven, but to save us from hell.
On Friday 27th October 2023 The United Nations General Assembly (UNGA) adopted, with 120 members in favor and 14 against (with 45 abstentions) , a major resolution on the war declared by Israel on Hamas and the increasing casualties in Gaza. The resolution called for an “immediate, durable and sustained humanitarian truce leading to a cessation of hostilities.” It also called for all parties to “immediately and fully comply with obligations under international humanitarian and human rights laws, particularly in regard to the protection of civilians and civilian objects.”
Among other resolving clauses in the resolution were demands for the protection of humanitarian personnel, persons hors de combat, and humanitarian facilities and assets, and recognition of the need to “enable and facilitate humanitarian access for essential supplies and services to reach all civilians in need in the Gaza Strip.”
Furthermore, the resolution demanded that the order by Israel, “the occupying Power”, for Palestinian civilians, UN staff and humanitarian workers to evacuate all areas in the Gaza Strip north of Wadi Gaza and relocate to the south, be rescinded.
With regard to the hostages held by Hamas the resolution called for the “immediate and unconditional release” of all civilians being Illegally held captive, demanding their safety, well-being and humane treatment in compliance with international law.
It also emphasized that the ongoing Israeli-Palestinian conflict needed to be brought to a halt through a “just and lasting solution” which could only be achieved by peaceful means, based on the relevant UN resolutions and in accordance with international law, and on the basis of the two-State solution.
A UNGA resolution requires a two thirds majority of members present and voting to be adopted and earlier The UNGA had failed to adopt four draft resolutions on the same issue.
What is a UNGA Resolution?
A UNGA resolution is a formal text adopted by the UNGA which by no means is enforceable law. At best it is a formal expression of an opinion, intention, or decision by an official body or assembly and is widely considered as a cluster of recommendations and decisions. These resolutions follow a common format and consist of three parts: the heading, the preambular clauses, and the resolving or operative clauses (Title; Preamble containing Preambular or Whereas clauses; and resolving or action clauses). The entire resolution comprises one long sentence, with commas and semi-colons throughout, and only one period at the very end.
UNGA Resolutions, which are the resolutions adopted by member States of the United Nations at meetings of the Organization, can be considered as having a recommendatory nature which are at best comprised of a coercive feature that could push States to follow a particular line of action of compliance. Usually, resolutions present a normative system which is calculated to establish a degree of social order.
It must be noted that resolutions of the UNGA Assembly are not totally destitute of effect and their effectiveness can vary depending on the situation and context in which they are used. Although these resolutions can be ambiguous and lack time limits for terminating controls and sanctions, they can assist in the mediation of negotiations, highlight issues to other nations who can then condemn the actions of the aggressive party, allow for the start of humanitarian aid and support, and hopefully lead to a resolution to the situation. UNGA resolutions can exert considerable influence by producing general political effects in the relations among nations.
Some commentators, referring to UNGA Resolutions have offered a contrarian view. Ahmad Alsharqawi, Ahmad Bani Hamdan, Moh’d Abu Anzeh, in their article The Role of General Assembly Resolutions to the Development of International Law published in Journal of Legal, Ethical and Regulatory Issues (2021 Vol: 24 Issue: 2) say: “it can be concluded that the resolutions of the UNGA are a legitimate source of international law”. However, there are differences of opinion on the legal aspect of such resolutions. The resolutions are legitimate in the sense that the breach of the resolutions will be counterproductive in all aspects of international law. The UNGA resolutions do not classify as sources of law as the ICJ lays down the categories that should be construed as the sources of law. In this context there are suggestions that the UNGA resolutions should be viewed as an independent source of international law. The roles of the UNGA resolutions are to strengthen the international law and can establish a general practice that is recognized by international law. The UNGA produces norms that functionally operate as law and States respond in a positive aspect and comply with the “prescriptive assertions” of the General Assembly as though such resolutions are binding on the States.
The Different Schools of Thought
There are three schools of thought which support the view that resolutions of the United Nations have legal legitimacy. The first is that these resolutions are derived from the Charter of the United Nations which confer legitimacy to the resolutions with the authority of the Charter. In the 1979 case of Filartiga v. Pena-Irala the United States courts addressed the relevance of a resolution of The United Nations in the course of their finding based on international law. The Filartiga case was a landmark in United States and international law. The court took a middle ground approach which, while referencing the traditional sources, relied prominently upon resolutions – a source many authorities would give far less consideration .
For the purpose of the Alien Tort Claims Act, torture may be considered to violate the law of nations. The court observed that there is no definitive statement as to the extent of the “human rights and fundamental freedoms” promoted in the Charter, but there is no dissent from the view that the [Charter] guaranties include, at a bare minimum, the right to be free from torture. The court cited language from two General Assembly Resolutions S-The Universal Declaration of Human Rights and the Declaration on the Protection of All Persons – as evidence that this prohibition is now part of customary international law. One commentator observed: “Standing alone, General Assembly Resolutions (even those adopted unanimously) have no binding force among the member nations. They are not law, only evidence of it. Their provisions must be balanced against other pronouncements of state practice, which may or may not be consistent with a given resolution” (C. Donald Johnson Jr, FILARTIGA v. PENA-IRALA: A CONTRIBUTION TO THE DEVELOPMENT OF CUSTOMARY INTERNATIONAL LAW BY A DOMESTIC COURT).
The second point of view supporting the claim that resolutions have legal legitimacy is that resolutions can replace elements needed to establish customary law. This cannot be applied to UNGA Assembly resolutions as States have the option of rejecting principles contained in the resolutions by recording their reservations of non-compliance. The third theory is that UNGA applies normative rules adopted by the entirety of the international community. This does not comport with UNGA resolutions which are non-binding on States which can mark their reservations.
Other commentators view United Nations resolutions as mere recommendations, not laws, and thus not binding on member States saying “hence, an important focus has been put on the ‘legal status’ of the Resolutions: without any formal legal obligation for the member states (MS) to implement, let alone consider these resolutions, it is difficult for the UNGA to have any real coercive authority” (Celine Van den Rul, Why Have Resolutions of the UN General Assembly If They Are Not Legally Binding? E-International Relations, June 16 2016 ) . They argue that, even though UNGA Resolutions enjoy a limited legal status, there is actually a point to having them if we consider first their symbolic as well as political impact and secondly their influence on contemporary international law, especially customary law.
UNGA resolutions can be symbolic in two main ways: it can have an invaluable influence on the behavior of states and stigmatize or isolate the practice of states that do not conform to it. It is through the symbolic power of UNGA resolutions in international relations that one can find a persuasive argument in favor of having them. As an international forum or a ‘town meeting of the world’, the UNGA represents the most suitable place for international dialogue and discussion. The resolutions passed by the UNGA can then be successfully presented as crystallizing, formulating and expressing the view or opinion of the international community of states.
UNGA resolutions, by expressing a ‘world opinion’, can thus exert considerable pressure for States to take this opinion into account, especially when conducting their domestic or foreign affairs. For example, resolutions defining or clarifying the meaning of a specific word such as Resolution 3314 on aggression directly reflect this idea of formulating a common view, which then sets ‘common standards’ that the global community can refer to.
UNGA resolutions are a symbolic gesture by the international community to stigmatize and formally condemn the practice of States which do not abide by fundamental principles that are followed by a rules based order. There is also the political impact that might follow non-adherence of a resolution, although in the UNGA context, some States have freely exercised their prerogative of marking their reservations to UNGA Resolutions in whole or part thereof.