The recent vote in the UN General Assembly (GA) suspending Russia from the UN Human Rights Council (HRC), due to its conduct in Ukraine, in early April 2022 is a rare instance of the GA asserting its powers with binding force. Generally, only the UN Security Council (SC) can adopt measures; these are exemplified by sanctions adopted by the SC periodically against errant states, non-government armed groups and individuals. Is there then room for a more assertive GA, especially when the SC is dysfunctional?
The GA is the most representative body of the UN, as all the member states have equal voting power. Currently, there are over 190 member states. While the GA has the power to adopt binding measures in regard to its internal functioning, such as in relation to its budget, it does not have explicit powers to adopt measures of an effective and binding nature in regard to its external role, such as to adopt sanctions against other entities. It is the SC which has such powers.
The situation becomes complicated when the SC fails to act, due to the anomaly dating from the establishment of the UN after World War II. Out of the 15 members of the SC, five countries ("the Powers") can veto resolutions and measures, thus preventing them from taking effect. In reality, there is often an impasse resulting in inaction which leaves the world with a "protection vacuum". Victims are then left unprotected in the face of the transgressions of others.
The "protection vacuum" can be filled in, to some extent, through creative development of the powers of the General Assembly. For example, in the early 1950s, at the beginning of the war between North Korea and South Korea, and with the shadow of SC dysfunctionality, the GA adopted the "Uniting for Peace Resolution" to overcome that vacuum by advocating a role for the GA to take collective measures in relation to international peace and security, particularly though emergency special sessions to address crises, where there is a blockage in the SC. This resolution has been used many times to call for sessions to discuss the longstanding issue of Palestine and the conflict in the region. Might this resolution be used in a more innovative way to adopt other effective measures, in addition to those emergency sessions?
Wisdom dictates that even by resorting to not only the expressed powers but also the implied powers of the GA, the organ should not be able to adopt measures of a military kind, for those measures fall under the purview of the SC. However, there might be some other measures which could be adopted "by default", especially when a member of the SC itself is in violation of the UN Charter, or where there is a veto-blocking action needed. Three areas are worth exploring: humanitarian access and assistance, protection of victims, and protection of UN personnel and related experts. These three areas do not necessarily entail military action of an enforcement kind, but they can justify actions beyond mere verbal reprimand, for instance, the dispatch of observers and peace-keepers to help reduce tensions, establishment of corridors to facilitate provision of food and medicine, and monitoring of attacks on civilians and UN personnel. There is every reason to justify the implied powers of the GA to promote "de-escalation" of conflicts when the SC fails to perform.
The GA could press for more accountability in relation to serious violations of International Law, especially the prohibition of attacks on civilians in times of armed conflict. One concrete example of the GA's role in this regard was witnessed in 2016 when it set up the International, Impartial and Independent Mechanism for the Syrian Arab Republic to document violations in that country and to prepare evidence for judicial cases in the future.
Yet to date, the GA has not claimed the power to set up specific courts/tribunals and has left this to the SC, for instance, in relation to the setting up of international criminal tribunals on the former Yugoslavia and Rwanda. However, from a progressive angle, if the SC itself is dysfunctional, the powers of the GA should be interpreted to enable the establishment of such courts/tribunals by the GA in the face of key violations of International Law.
Another channel for resetting the powers of the GA is to leverage for UN reforms. It was the UN reform process of 2005-6 which helped to abolish another dysfunctional body, the UN Commission on Human Rights, and set up instead the UN HRC. Importantly, the latter was placed under the supervision of the GA. In the process, the founding document -- a GA resolution setting up the HRC in 2006 -- also stipulated the power of the GA to suspend member(s) of the HRC in the case of serious human rights violations, and this was witnessed in the case of the suspension cited above.
In 2021, the UN Secretary General (SG) came out with a vision for the future in the form of "Our Common Agenda" which calls for post Covid-19 recovery, a comprehensive social contract for all, protection of our "commons" (in particular our environment), and the equitisation of services (such as health care for all). That vision calls for a roadmap on International Law. While the call for reform of the SC would be part of this, ways of empowering the GA more along the lines asserted above should be explored.
In the meantime, the GA can innovate without waiting by advancing this initiative. It should work with the SG to map, monitor and report annually on how states cooperate with the UN, namely "cooperation cartography". This should leverage for the improved implementation of recommendations from the UN, such as on human rights. Physical and verbal attacks on the part of states and related media against UN personnel and related experts are also part of global aberrations that need exposure to ensure transparency, premised on more prevention of harm, protection of the victims and related remediation.
Vitit Muntarbhorn is a Professor Emeritus at Chulalongkorn University. His latest book is 'Challenges of International Law in the Asian Region'.
