General Assembly Resolutions, Security Council Resolutions as a Source of International Law

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INTRODUCTION

International law is the law governing the issues, when a foreign element is there in a case. The United Nations, is an international intergovernmental organisation formed to promote peace and security across the globe, after World War II. The General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court of Justice and the UN Secretariat are the six principal organs of the UN. The resolutions passed in the General Assembly and Security Council are not officially recognised as a source of International law, but this article will look into the validity of the same.

Source of International Law

The official sources of International law are given in Article 38(1) of the Statute of the International Court of Justice (ICJ), which are, international treaties, international customs, general principles of law, judicial decisions and the teachings of jurists. The priority of the sources is also based on the same order. 

Treaties are the basic source of international law. It is an agreement between sovereign countries or international organisation and governed by International law. Customs will be considered as a source of law, when there is no treaty governing the particular issue. It is the oldest source of law. It is mostly the customs followed by two or more countries for a long period of time. sometimes, customs, will be modified to be a treaty. General principles are those principle on whose basis International law is built on. Judicial decisions are not usually applicable in International law but is only taken into account when the other sources are not available. Jurist’s opinion is only used when all the other sources are not available and they are not preferred much because of various reasons, like the jurist might be biased towards his own country, etc.

General Assembly

The General Assembly is the decision-making organ of the UN. It makes decisions on questions related to the peace and security, admission of new members and also about the matters related to the budgets of the UN. The decisions are taken by a voting with a majority and by a simple majority vote, followed by two-third majority present and voting, in case of issues with important questions, where each country has one vote. Chapter IV of the UN Charter talks about the General Assembly, which gives the General Assembly the power to discuss any questions, within the scope of this Charter and to initiate studies and make any recommendations to the member countries, for promoting international cooperation and development of international law. The subsidiary bodies of the General Assembly look into areas of international law and reports it to meeting of the General Assembly. Out of the six committees of the General Assembly, the Sixth Committee looks into the legal matters and reports it to the General Assembly along with the International Law Commission and the UN Commission on International Trade Law. The General Assembly also looks into matters related to the UN’s institutional law, like, the matters related to Staff Regulations and the formation of the internal justice system.

Sir Ian Brownlie in his book ‘Principles of Public International Law’, classified the sources of international law into two: formal sources and material sources. Sources mentioned in Article 38(1) of the Statute of the ICJ are the formal sources of international law, that looks into the methods and procedures necessary for the creation of International law and it creates the law. There are also material sources of international law, which looks into the content and substance of international law and it helps in identifying the obligatory substance, that would later become a part of law. Keeping this in mind, there have been suggestions that the resolutions passed by the General Assembly should be considered as a material source, because they indicate the obligations of the states and it is binding on the states, but it is not a law. Hence, he said that the resolution of the General Assembly is an obligation and not a law.

Security Council

The security council has to maintain peace and security among all the countries. When the other countries only have the power to make recommendations to the members, the Security Council, under Article 25 of the UN Charter, has the power to make decisions that are binding on the member states. The purpose of the Security Council is not to maintain and restore law, but to maintain peace and order and both are not the same. The Security Council does not necessarily make any law and so its resolutions are not considered to be a source of international law, but they work in the interpretation of the law and help in the law-making process. Few examples of the Security Council’s contributions are, recognition and non-recognition of statehood, the law of treaties, international criminal law, international human rights law, international humanitarian law, international administration of the territory, and state responsibility.

The Security Council was referred to as a World Legislature, with the adoption of Resolution 1373, on September 28, 2001, and it was also suggested that a new legislative stage was started along with it. With the adoption of Resolution 1540 on April 28, 2004, the consultation process was described as the first major step for the Security Council to legislate for the other members of the UN and it was also said that the Security Council has replaced the conventional law-making process in international level, by its enforcement powers.

The Security Council resolutions are framed in a general and abstract character of the obligation. An example of this is Resolution 1390, which was about freezing the assets of Al Qaeda, this resolution shows the characters of the legislative resolution. This type of resolution was also referred to as a resolution, which is not in response to a particular fact or situation. Hence, this obligation is similar to those obligations entered by states as international agreements. These resolutions are referred to as international legislation.

CONCLUSION

After looking into all the above-mentioned things, we can conclude that neither the General Assembly resolutions nor the Security Council resolution is a source of International law, but these are resolutions, that the countries are bound to follow. Now comes the question, whether these resolutions can be considered as a source of law, any time soon? My answer to this question would be no. This is because both the General Assembly and Security Council have no legislative authority and acting as it has, would mean that it is inconsistent with the provisions of the UN Charter. On the other hand, these two organs of the UN are also political institutions and not legal institutions and they are not democratic and they also do not have a lot of legal restrictions for their actions. 

To make these as a source of International law, would mean that both General Assembly and Security Council should be given a separate legal identity and that would mean that they are separate international organizations and not a part of the UN. To conclude, I would say that both the General Assembly resolutions and Security Council resolutions won’t be considered as a source of International law.

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