The Uniting for Peace Resolution’s original purpose was to address the failings of the Security Council in meeting its responsibility to maintain international peace and security when faced with a veto by one of its permanent members. More particularly, the resolution provided a means of circumventing Security Council paralysis due to the “use” or, as viewed by the wider international community, the “abuse” of the veto power by the Soviet Union with respect to the conflict in Korea. The General Assembly passed Resolution 377A(V), the Uniting for Peace Resolution on 3 November 1950. The key provision is Part A which states that the General Assembly:
Resolves 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 in any case 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 in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.Footnote 61
U4P granted the UN General Assembly a key subsidiary role for the maintenance of international peace and security when the Security Council failed to exercise its primary responsibility. That the General Assembly has a clearly articulated secondary responsibility upon which U4P can ground its constitutional base is no longer controversial, as confirmed by the International Court of Justice in the Certain Expenses case.Footnote 62 The Court stated definitively that whilst Article 24 of the Charter confers upon the Security Council the primary responsibility for the maintenance of international peace and security, this does not translate as “exclusive” responsibility, leaving the General Assembly with secondary responsibility.Footnote 63
Under the Charter, where a matter is referred by the Security Council to the General Assembly, under article 11(2) of the Charter the General Assembly ‘may discuss any questions relating to the maintenance of international peace and security’ brought before it by the Security Council and make recommendations regarding any such questions. Importantly however where “action” is necessary, article 11(2) states that a matter shall be referred to the Security Council. It has been a source of controversy whether this means a resolution of the General Assembly recommending enforcement action falls within the definition of “action,” thereby making such a recommendation from the General Assembly ultra vires. Some guidance of what the word “action” means was provided in the Certain Expenses case but this did not go as far as addressing whether forceful enforcement action fell within this meaning.Footnote 64
On its face U4P clearly authorises the General Assembly to take action with respect to matters that under the Charter’s constitutional balance are considered to be the preserve of the Security Council.Footnote 65 In particular where there has been a breach of the peace or act of aggression, U4P grants to the General Assembly the power to recommend the use of armed force.Footnote 66 According to Carswell,
[a]lthough the Charter subjects the Assembly to specific limitations regarding matters that would tend to trespass upon the primary constitutional domain of the Council, it places no arbitrary limits on the Assembly’s ability to recommend a full range of measures – including force – in cases where the Council is unable to fulfil its primary responsibility.Footnote 67
Others disagree with this interpretation, however. Johnson argues, for example, that the use of force recommended by the General Assembly against the independence and territorial integrity of another state would breach Article 2(4) of the Charter prohibiting the use of force.Footnote 68 According to Johnson, this would be the case even if the purpose of the recommendation was ‘to stop a genocidal State from murdering parts of its own population.’ He continues, ‘… outside the self-defense context and absent a Security Council Chapter VII use of force authorisation, it is difficult to see how an Assembly recommendation that states use force squares with the norm reflected in Article 2(4).’Footnote 69
Ensuring the centrality of the Security Council
It’s clear that a principal objection to the use of U4P is that it upsets the “delicate balance of powers” between the General Assembly and the Security Council under articles 11(2), 12 and 24 of the Charter whereby the General Assembly becomes involved in a usurpation of Security Council power. A possible answer is to re-envision U4P as a mechanism of the Security Council to enable the realisation of its responsibility, rather than a usurpation of the power of the Security Council by the General Assembly.Footnote 70 Through this lens, rather than the General Assembly making recommendations including for the use of force, to member states, General Assembly recommendations would be limited to legitimating the Security Council to take action in spite of the use of a veto by a permanent member. It would be for the member states of the Security Council therefore to determine what action should be taken. Such an approach seeks to respect the Charter’s balance of power between the General Assembly and the Security Council and would promote the Security Council as the primary body for the maintenance of international peace and security.
There are a number of ways in which this could be achieved. To begin with, in order to avoid any charge of acting ultra vires, it is important that the power of the General Assembly to make recommendations under U4P should be interpreted in line with the clear delineation of powers between the General Assembly and the Security Council in the Charter. This would mean that only when the Security Council has stopped “exercising” its primary responsibility should the General Assembly take on its secondary responsibility.Footnote 71 This clearly begs the question: When has the Security Council stopped “exercising” its primary responsibility and more particularly, whether the use of the veto means the Security Council is no longer exercising its primary responsibility? To this question, Carswell argues that despite the claim that once the veto is cast the Security Council automatically stops exercising its primary responsibility, it is not possible to discount that the veto is a valid and legitimate procedure of the Security Council under article 27(3) of the Charter. Moreover, the veto is ‘contemplated as an essential mechanism for the fulfilment of the Security Council’s Chapter VII mandate,’Footnote 72 therefore in itself the casting of the veto does not equate to the Security Council no longer “exercising” its responsibility. Rather, Carswell argues, the casting of the veto alone is a ‘necessary but not sufficient prerequisite’ for the exercise of the General Assembly’s secondary responsibility under Uniting for Peace.Footnote 73 In addition, he suggests, it is necessary to determine that a permanent member’s use of the veto was a failure to exercise its responsibility.Footnote 74 Therefore, it is the casting of the veto and the determination that the veto constitutes the Security Council failing to exercise its primary responsibility that provides the constitutional basis for the General Assembly asserting its secondary responsibility under Uniting for Peace. If this is correct, then a key question becomes: Who then decides whether the Security Council has failed to exercise its primary responsibility, due to an “illegitimate” use of the veto that then triggers the resort to U4P?
The use of the veto presents a tension between the ideas of the lawfulness of the use of the veto and its legitimacy.Footnote 75 That the veto is constitutional under the terms of the Charter is not questioned. Equally, the view that the veto was intended as an integral part of the functioning of the Security Council and its primacy is not controversial.Footnote 76 But a multitude of controversies and criticisms regarding the illegitimacy of the veto’s use by permanent members has been ever present. It is this idea of illegitimacy that is often characterised as veto abuse and the manner in which a permanent member interprets how to exercise veto power gives rise to multiple overlapping ideas of legitimacy: whether the use of the veto is politically legitimate, morally legitimate or strategically legitimate. Often when a use of the veto is damned for being illegitimate, it reflects the view that there is something questionable politically, morally or strategically with the decision taken.
Moreover, the question of legitimacy is a transmutable concept. Our idea of what constitutes a legitimate use of the veto has changed with the changing emphasis of the values of the international system more acutely focussed today upon human rights and humanitarian protection as a priority.Footnote 77 For example, within the current socio-cultural context, a use of the veto that hinders the pursuit of humanitarian goals is considered an illegitimate use of the veto.Footnote 78 In this regard, the General Assembly has been particularly critical of the Security Council and its inability to respond adequately to the Syrian crisis. While not legally binding, such criticism can have trenchant moral and political force. At the meeting of the 70th UN General Assembly in 2015, a number of States condemned Russia’s use of the veto (including in relation to Syria).Footnote 79 The Assembly’s Resolution 71/130 expressed ‘outrage at the escalation of violence’ in Syria, urging the Security Council to take additional measures to address the “devastating humanitarian crisis” and expressly stressing article 11 of the Charter.Footnote 80
What constitutes a legitimate use of the veto by a permanent member should, appropriately, be made by the Security Council. As Carswell notes, for example: ‘[B]y virtue of the primacy bestowed by articles 12 and 24, and the very construction of the Charter around the nucleus of the Security Council… the appropriate forum to determine that question [of legitimacy] must be the Council itself.’Footnote 81 Moreover the view of the legitimacy of the use of the veto can be expressed through the Security Council’s use of U4P. It has long been decided that under the Charter the ‘submission to the General Assembly of any question relating to the maintenance of international peace and security’Footnote 82 and a ‘request that the General Assembly make a recommendation on a dispute or situation in respect of which the Security Council is exercising the functions assigned to it in the Charter’Footnote 83 are procedural decisions, which can be made on the basis of a two-thirds majority vote (9 out of 15 members); and importantly, they are not subject to the veto under Article 27(2). Moreover, U4P makes explicit the obligation of a two-thirds majority for any referral of a matter to the General Assembly.Footnote 84 It can be argued therefore that in deciding to trigger U4P and refer the matter to the General Assembly and in achieving a two-thirds majority to do so, the Security Council is implicitly expressing its view on the legitimacy of the use of the veto by a permanent member.Footnote 85