Limiting ourselves to the «legal status» of General Assembly resolutions would only give us a narrow view when assessing the impact of those resolutions. Although they are not legally binding on Member States, there is a real and compelling interest in having General Assembly resolutions. They have a symbolic effect in the way they express, formulate and crystallize the opinion of the international community, which can serve to influence the behavior of MS itself and to stigmatize or formally condemn the practice of MS that disagrees with it. They also have a significant weight in their political impact. General Assembly resolutions can be used and are appreciated by Member States as an instrument of persuasion and legitimacy. Finally, the most notable effect of General Assembly resolutions lies in the way in which they affect international law, in particular customary law. Some important resolutions have been transformed into a new legal norm or used as a reference in the settlement of international law cases. Last but not least, they can creatively shape customary law by reflecting an opinio jurisive necessity. It has been proposed that a binding triad of conditions – a super-majority of the number of voting nations whose population and contributions to the UN budget represent the majority of the total amount – make a General Assembly resolution binding on all nations; The proposal came to nothing. The resolution aimed to hinder terrorist groups in various ways: UN member states were encouraged to share information on terrorist groups to help fight international terrorism.
The resolution also called on all States to adapt their national laws in order to be able to ratify all existing international conventions on terrorism. It states that all States «should ensure that terrorist acts are classified as serious criminal offences in national laws and regulations and that the gravity of such acts is duly reflected in the sentences served». A treaty is negotiated by a group of countries, either through an organization established for that purpose or through an existing body such as the United Nations (UN) Disarmament Council. The negotiation process can take several years, depending on the subject of the treaty and the number of participating countries. At the end of the negotiations, the contract will be signed by the representatives of the governments concerned. The terms may require that the treaty be both ratified and signed before it becomes legally binding. A Government ratifies a treaty by depositing an instrument of ratification at a place specified in the treaty; The instrument of ratification is a document containing a formal confirmation that the government accepts the terms of the treaty. The ratification process varies according to the laws and constitutions of each country. In the United States, the president can only ratify a treaty after receiving the «advice and approval» of two-thirds of the Senate. If a resolution is formulated with sufficient precision to allow its application without further interpretation and has been adopted unanimously by the Member States, it can often have important legal implications.
A General Assembly resolution adopted by a large majority, using precise language and reflecting the opinion of the international community, may be considered legally binding, although it may not be enforceable. The strength or status of the law attributed to soft law norms varies. Most decisions are not legally binding. In other words, their implementation is not mandatory. However, depending on the entity adopting these texts, their form and content, resolutions may create obligations for States and have a specific legal status. In fact, the most convincing example cited by researchers is the influence that General Assembly resolutions have in the field of customary international law. In that regard, resolution 217 on the Universal Declaration of Human Rights was the best way to recognize how the General Assembly could be used to strengthen the norms or rules of customary law. Although the Declaration is not legally binding, its influence on national constitutions, treaties or international law since 1948 cannot be denied.
Beyond the field of human rights, Christopher C. Joyner highlights how some notable resolutions have been perceived as filling a gap in international law or as mediators of a need for international law, and have thus been transformed into a new legal norm or a general principle of law. [17] For example, in 1961, the General Assembly successfully adopted the resolution on the peaceful uses of outer space, which was formally reaffirmed two years later in a Declaration of the General Assembly on Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. [18] In just ten years, three multilateral treaty instruments have entered into force, specifically containing the provisions of these resolutions. Christoph C. Joyner concludes: «The evolving experience of resolutions since 1960 has strongly suggested that some resolutions may have become universally accepted principles of law, or at least imprint the emerging principles of emerging customary law.» [19] Some courts have themselves attached importance to the decisions of the General Assembly by using them as a reference, evidence or substitute for customary international law. For example, in Texaco Overseas Petroleum Co. v. Libyan Arab Republic, arbitrator René Dupuy relied on the support of General Assembly resolution 1803 to settle the dispute. [20] In 1980, the U.S. Court of Appeals ruled on United Nations General Assembly resolutions in Filartiga v. Pena-Irala to prove that no country can claim the right to torture its citizens.
[21] He referred to the Universal Declaration of Human Rights, General Assembly Resolution 217, and General Assembly Resolutions 2625 and 3452. [22] Finally, some scholars have focused on how General Assembly resolutions meet the requirements of the formation of a customary rule of law: (1) as a reference to state practice and (2) as a reflection of opinio juris sive necessitatis («an opinion on law or necessity»). [23] Although the extent to which the General Assembly`s decision constitutes state practice is still widely debated, there is a broad consensus on how General Assembly resolutions require opinio jurisive, particularly if they are adopted unanimously or by consensus, thus creating customary law. [24] The mere repetition of principles in Member States` resolutions or votes can also be regarded as evidence of opinio juris. Thus, decisions of the General Assembly in the area of customary law may have important legal implications. The legal force that a soft law norm can have – and therefore its potentially binding character – must be determined on a case-by-case basis: Articles 10 and 14 of the Charter of the United Nations qualify General Assembly resolutions as «recommendations»; The recommendive nature of General Assembly resolutions has been repeatedly emphasized by the International Court of Justice. [3] However, some General Assembly resolutions dealing with the internal affairs of the United Nations, such as budgetary decisions or instructions to subordinate bodies, are clearly binding on their addressees. [Citation needed] The issuing body of a UN resolution determines whether it is considered binding on Member States.
