Revisiting the Legal Effect of General Assembly Resolutions: Can an Authorising Competence for the Assembly be Grounded in the Assembly’s ‘Established Practice’, ‘Subsequent Practice’ or Customary International Law?

Abstract

The Security Council’s recent intractability in the face of human rights and humanitarian crises has directed increased attention to the General Assembly’s secondary responsibility for international peace and security. Despite considerable academic attention to the issue, however, significant questions remain regarding the scope of the Assembly’s powers. One of the most significant of these questions is whether the Assembly may authorise conduct that would otherwise be unlawful. This question is important, because while there is good authority to support the proposition that the Assembly may recommend measures up to and including the use of force, if the Assembly is not also competent to authorise such measures, we are left with the unsatisfactory scenario in which the Assembly is legally competent to make recommendations that States may not legally be able to act upon. Drawing on the International Law Commission’s 2018 Draft Articles on Subsequent Agreement and Subsequent Practice, as well as those on Identification of Customary International Law, this article explores whether an authorising competence on the part of the General Assembly can be grounded in the Assembly’s practice. Specifically, it considers whether the Assembly’s practice of recommending and seemingly purporting to authorise coercive measures may amount to ‘established practice’, thus forming part of the ‘rules of the organisation’ within the meaning of the Vienna Convention on the Law of Treaties (VCLT); or alternatively if it can be considered ‘subsequent practice’ within the meaning of the VCLT; or alternatively it may attest to a rule of customary international law.