Can the General Assembly Provide a Way Around the Security Council on Syria?

by Julian Ku

As Samantha Power (the new U.S. Ambassador to the U.N.) demands unilateral action and rages against the deadlocked Security Council, it is worth thinking again about the odd structure of the UNSC and its veto power for P-5 members.  In this light, I would point our readers to an interesting piece by Andrew Carswell forthcoming in the Journal of Conflict and Security Law entitled “Unblocking the Security Council: The Uniting for Peace Resolution.”  Essentially, there is some (very thin in my view) precedent from the Korean War era for the General Assembly to provide authority for the use of military force.  This might allow the U.S. to seek GA endorsement of a strike against Syria due to the deadlock in the Security Council.  As a practical matter, it is far from clear that a majority of the current GA would actually support the U.S. but even if it did, the legal significance of a GA act is uncertain to say the least.  Still, something worth discussing.

Unfortunately, the full article is not quite done but it will be out shortly. This link may provide (for a limited time) access to his almost complete draft. His abstract is below the jump.

 The United Nations Security Council’s recent blocked attempts to address the deteriorating political and humanitarian situation in Syria have renewed calls for UN reform. From the Cold War until the present day, the fact that the UN system has failed to live up to the lofty expectations of its framers can be attributed in significant part to the threat and exercise of the veto by individual Permanent Five (P5) members of the Council. This situation can be attributed to an un- equal—but politically necessary—compromise that took place between the great Allied victors of the Second World War and the remainder of the UN membership. The result was a division of powers between the Security Council and the General Assembly that has never found a satisfactory equilibrium. In light of this predicament, the author argues that a 1950 General Assembly resolution should be re-examined in the modern context as a possible means of mitigating the bad faith exercise of the veto. The ‘Uniting for Peace’ resolution, drafted by a P5 member, revealed the latent powers of the General Assembly existing within the UN Charter to make recommendations in lieu of a blocked Council, up to and including the use of force. However, it went too far when it assigned to the Assembly a role that effectively usurped the primary role of the Security Council in the maintenance of international peace and security. When P5 members realized that it potentially restricted their respective sovereign interests, it was relegated to obscurity. Nevertheless, read down to reflect a constitutional balance between the UN’s primary organs, the resolution represents a viable tool capable of overcoming the worst effects of a veto exercised in circumstances that cry out for an international response.

http://opiniojuris.org/2013/09/08/can-general-assembly-provide-way-around-security-council-syria/

One Response

  1. better revise his draft – UN GA website noted that by 2008 it had been invoked ten times.  That’s why I listed UPR as one of seven possible claims for permissible use of force in Syria in earlier responses to posts.

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