Вы находитесь на странице: 1из 15

The Role of General Assembly in International Dispute Resolution

This paper made to fulfill the assignment of International Dispute Resolution which lectured by
Mrs. Dr. Sefriani S.H., M.Hum

Written by:

Nasrullah Mazii (12410343)

Adlina Amalia Bakhri (10410759)

International Program Faculty of Law

Universitas Islam Indonesia

Yogyakarta

2016/2017
CHAPTER I

INTRODUCTION

Background

The international relations held between countries, or countries with individual, or

countries with international organizations are not always running well. Often arising dispute

between them. When such a case occurs, international law played no small role in the solution.

Then a remedies has become important enough attention in International society since the 20th

century - this effort is intended to create a better relationship between countries for the achievement

of world peace. Various methods of dispute resolution has become jurisprudence in different cases.

One method of dispute resolution through the United Nations (UN) framework, an

international organization which is globally and most important in the present. UN and all of his

agencies was established with the objective world and an attempt to create peace, and security in

the world1 through the role of preventive diplomacy, peacekeeping, peace-making, peace building

and peace enforcement.2

The purpose of the United Nation are set out in Article 1 (1) of the United Charter is to

bring about by peaceful means, and in conformity with the principles of justice and international

law, adjustment or settlement of international dispute or situations which might lead to a breach

1
Ion Diaconu, Peaceful Settlement of Disputes between States: History and Prospect, in St. J. MacDonald and
Douglas M. Johnston (eds), The Structure and Process if International Law: Essays in Legal Philosophy Doctrine and
Theory, Martinus Nijhoff, 1986.p.1095 as cited by Huala Adolf, Hukum Penyelesaian Sengketa Internasional. Sinar
Grafika. Jakarta. p.1
2
PBB dan Penyelesaian Sengketa Internasional, which can be seen on
http://sugipratiwi.blogspot.co.id/2011/12/pbb-dan-penyelesaian-sengketa.html, last accessed on April 04, 2017 at
11:47 pm.
of peace. Among the principle in accordance with the Organization and its member are to act in

pursuit of such purpose are that all member are to refrain in their international relation from the

threat or use of force against the territorial integrity or political independence of any State, or in

any other manner inconsistent with the Purposes of United Nations (article 2(4)), and that they

shall settle their international dispute by peaceful means in such a manner that international peace

and security, and justice, are not endangered.3

These purposes and principle are reflected in Chapter VI of the Charter, which deals with

the power of the Security Council and General Assembly in respect of Pacific Disputes Settlement

as is termed there. Article 33 enunciates the basic obligation of State, as follows:4

1. The parties to any dispute, the continuance of which is likely to endanger the maintenance

of international peace and security, shall, first, seek a solution by negotiation, enquiry,

mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or

arrangements, or other peaceful means of their own choice.

2. The Security Council shall, when it deems necessary, call upon the parties to settle their

dispute by such means.

This was repeated by the General Assembly of The United Nations in its Declaration of the

Principles of International Law concerning Friendly Relations and Co-operation between States of

24 October 1970, and amplified in the Manila Declaration on the Peaceful Settlement of

International Dispute of 15 November 1982.

3
See UN Charter 2(3), which stated in clear: All Members shall settle their international disputes by peaceful
means in such a manner that international peace and security, and justice, are not endangered.
4
Ibid. See UN Charter Art 33.
As one of the main /principal organ of United Nation5, General Assembly has important

role in carrying out the duties and functions of the United Nations. Particularly in maintaining

international peace and security, in accordance with justice and principles of international law.

This paper seeks an integrative agenda for making peace in conflict by using General Assembly

as part of dispute resolution chamber in United Nations. By understanding the agenda of the

General Assembly forum and also knowing about the assemblies, council, and rule of the

procedure inside. It will explain and examine on how the role of General Assembly in taking part

of dispute settlement in International sphere.

Problem Statement

Based on the background above, then How the role of General Assembly in International Dispute

Resolution?

5
The main organ of the United Nations are based on Chapter III (Article 7 (1)) of the UN Charter consists of the
General Assembly, Security Council, ECOSOC, the Transitional Council, International Court of Justice and the
Secretariat General, which has duty to maintain peace and security, achieve global order as termed to the Charter.
CHAPTER II

CONTENT

The Overview of General Assembly

Article 7 of the Charter establishes the General Assembly as one of six principal organs

of the United Nations (UN). It is the only one of the six that includes representatives of all member

states, simultaneously respecting and confirming their sovereign equality by giving each of them

one vote, regardless of military power, wealth, population, size of territory, or any other

characteristic. Historically, it is successor to the Assembly of the League of Nations.6 The League

Assembly also included representatives of all member states but tended to be overshadowed by

the League Council, where the foreign ministers of the major powers often met to address the

major crises of the day. Its egalitarian treatment of member states and worldwide composition

make the General Assembly the pre-eminent global deliberative body.

The General Assembly (GA) was the one of the instrument and main organ of the United

Nations where all of the member of states has their permanent mission as its delegates.7 Every

members state can send their delegates, not more than 5,8 but its only has one vote for each

member.9 The General Assembly was held their assemble session on meet every year in regular

session commencing on the Tuesday of the third week in September, counting from the first week

that contains at least one working day10 at the Headquarters of the United Nations unless convened

6
Peterson. M.J, the United Nations and General Assembly. Routledge Taylor and Francis Group: London and New
York. 2005. p.2
7
See Art 9(1) UN Charter
8
Ibid. Art 9(2)
9
Ibid. Art 18(1)
10
Rules of procedure. Art 1, based directly on a provision of the Charter (Art. 20), see introduction (of Rules of
procedure) paras. 46 and 48
elsewhere in pursuance of a decision taken at a previous session or at the request of a majority of

the Members of the United Nations11 which led by the president that choose from the parties

member. In ruling its duty, GA are assisted by main committee12, and subsidiary organ13.

Role of International Dispute Resolution; the Functions and Power of the General Assembly

As a forum for multilateral negotiation; Established in 1945 under the Charter of the United

Nations, the General Assembly occupies a central position as the chief deliberative, policymaking

and representative organ of the United Nations.14 Comprising all 193 Members of the United

Nations,15 it provides a unique forum for multilateral discussion of the full spectrum of

international issues covered by the Charter. It also plays a significant role in the process of

standard-setting and the codification of international law.

The Assembly meets from September to December each year, and thereafter, from January

to August, as required, including to take up outstanding reports from the Fourth and Fifth

Committees. Also during the resumed part of the session, the Assembly considers current issues

of critical importance to the international community in the form of high-level thematic debates

organized by the President of the General Assembly in consultation with the membership.

11
Ibid. Art 3
12
Several Committee in assisting General Assembly to run their duty, pervades; Committee on disarmament and
international security issues; special political committee; social affairs committee, humanitarian and cultural;
committee of decolonization issues; administrative and budgetary affairs committee; legal affairs committee
13
Based on Art 22 UN Charter GA may establish the subsidiary organ which might be necessary to assist General
Assembly in running their function, Such as: UNCTAD (United Nation Conference on Trade and Development);
UNEP (United Nations Environmental Programme); UNCITRAL (United Nations Commission on International Trade
Law); UNDP (United Nations Development Programme); UNITAR (United Nations for Training and Research), etc.
14
General Assembly Resolution 55/2 of 8 September 2000, Section VIII. Accessible through www.un.org/general
assembly/resolutions.
15
See Permanent Missions to the United Nations. Protocol and Liaison Service. Doc ST/PLS/SER.A/306. N 306. June
2016.
During that period, the Assembly traditionally also conducts informal consultations on a

wide range of substantive topics, including on UN reform related matters.

Functions and powers of the General Assembly; The Assembly is empowered to make

recommendations to States on international issues within its competence. It has also initiated

actionspolitical, economic, humanitarian, social and legalwhich have affected the lives of

millions of people throughout the world. The landmark Millennium Declaration, adopted in 2000,

and the 2005 World Summit Outcome Document, reflect the commitment of Member States to

reach specific goals to attain peace, security and disarmament along with development and poverty

eradication; to safeguard human rights and promote the rule of law; to protect our common

environment; to meet the special needs of Africa; and to strengthen the United Nations.

In September 2015, the Assembly agreed on a set of 17 Sustainable Development Goals,

contained in the outcome document of the United Nations summit for the adoption of the post-

2015 development agenda.16

According to the Charter of the United Nations, the General Assembly may:17

1. Consider and approve the United Nations budget and establish the financial assessments

of Member States

2. Elect the non-permanent members of the Security Council and the members of other

United Nations councils and organs and, on the recommendation of the Security Council,

appoint the Secretary-General

16
G.A. Res 70/1
17
http://www.un.org/en/sections/un-charter/chapter-iv/index.html, last accessed on April 04, 2017 at 21:35 pm
3. Consider and make recommendations on the general principles of cooperation for

maintaining international peace and security, including disarmament

4. Discuss any question relating to international peace and security and, except where a

dispute or situation is currently being discussed by the Security Council, make

recommendations on it

5. Discuss, with the same exception, and make recommendations on any questions within

the scope of the Charter or affecting the powers and functions of any organ of the United

Nations

6. Initiate studies and make recommendations to promote international political

cooperation; the development and codification of international law; the realization of

human rights and fundamental freedoms; and international collaboration in the economic,

social, humanitarian, cultural, educational and health fields

7. Make recommendations for the peaceful settlement of any situation that might impair

friendly relations among countries

8. Consider reports from the Security Council and other United Nations organs.

The Assembly may also take action in cases of a threat to the peace, breach of peace or act

of aggression, when the Security Council has failed to act owing to the negative vote of a

permanent member. In such instances, according to its Uniting for peace resolution of 3

November 1950, the Assembly may consider the matter immediately and recommend to its

Members collective measures to maintain or restore international peace and security.18

Direct to the point, it role are written in its duty and authority of GA, pervades:

18
See Special Sessions and Emergency Special Sessions, can be seen at
http://www.un.org/en/ga/about/subsidiary/index.shtml, accessed on April 4, 10:00 pm.
1. implementing peace and international security;19

2. cooperation in the fields of politics, encouraging the development of international law

and its codification progress, international cooperation in the sphere of economic,

social, cultural, educational, health, and help human rights;20

3. tasks relating to the trusteeship system21

4. tasks related to the problem of the area that does not have self-government22

5. duties with respect to the financial affairs23

6. to establish, set nmembership and reception member24

7. to amend charter25

The search for consensus; each of the 193 Member States in the Assembly has one vote.

Votes taken on designated important issues such as recommendations on peace and security, the

election of Security Council and Economic and Social Council members, and budgetary questions

require a two-thirds majority of Member States, but other questions are decided by a simple

majority. Votes in the General Assembly to distinguish between issues that are important and not

important. The important issue detailed as follows26;

1. Advice on international peace and security

2. The election of non-permanent members of the Security Council, the trusteeship council
elections, election board members of Ecosoc

19
See UN Charter, Art 11-12
20
Ibid, Art 13
21
Ibid, Art 85
22
Ibid, Art 73
23
Ibid, Art 19
24
Ibid, Art 3-6
25
Ibid, Art 108-109
26
Sri Setianingsih Suwardi, Pengantar Hukum Organisasi Internasional. Jakarta: UI Press. 2004. P.281
3. The admission of new members of the UN
4. Deferment of rights and privileges rights of members
5. Dismissals of the member
6. Problems related to the implementation of the representative system
7. Budgeting affairs
8. The appointment of the secretary general
In recent years, an effort has been made to achieve consensus on issues, rather than

deciding by a formal vote, thus strengthening support for the Assemblys decisions. The President,

after having consulted and reached agreement with delegations, can propose that a resolution be

adopted without a vote.

Revitalization of the work of the General Assembly

There has been a sustained effort to make the work of the General Assembly more focussed

and relevant. This was identified as a priority during the 58th session, and efforts continued at

subsequent sessions to streamline the agenda, improve the practices and working methods of the

Main Committees, enhance the role of the General Committee, strengthen the role and authority

of the President and examine the Assemblys role in the process of selecting the Secretary-General.

During the 69th session, the Assembly adopted a landmark resolution on the revitalization

of the work of the General Assembly (69/321), which provided for informal dialogues to be held

with candidates for the position of Secretary-General of the United Nations. As a result, the

President of the 70th session organized a series of such informal dialogues with candidates. The

General Assembly, on the recommendation of the Security Council, is expected to appoint the next

Secretary-General during the main part of the 71st session.


The practice of convening high-level thematic interactive debates is also a direct outcome

of the revitalization process. It has become an established practice for the Secretary-General to

brief Member States periodically, in informal meetings of the General Assembly, on his recent

activities and travels. These briefings have provided a well-received opportunity for exchange

between the Secretary-General and Member States and are likely to be continued at the 71st

session.

Advantages and Lacknesses of Role of General Assembly in International Dispute Settlement

The decision of the UN General Assembly are recommendations27 which means are not

legally binding (binding decision), it is different with the Security Council decisions are binding.28

Although the decision of the UN General Assembly is a decision that contain recommendation,

but in reality there are decisions of the General Assembly that have the binding force that exceeds

in the formal meaning set out in the UN Charter.29 It must be recognized that the decision of the

General Assembly that does not have the binding force immediately, but the resolution of the

General Assembly may have legal implications, all the resolutions concerning the law; the

resolution was an important role in forming what is called a psychological element for international

customary law30. For example; the decision of the General Assembly that are important, such as

resolution of the Declaration of Human Rights, December 10, 1948; Assembly resolution on

"Permanent Sovereignty Over Natural Resources", dated December 14, 1962; Resolution on the

"Charter of Economic Rights and Duties of States," dated January 15, 1975.

27
See UN Charter Art. 10
28
Ibid., Art 25
29
Mochtar Kusumaatmadja, Pengantar Hukum Internasional. Binacipta: Bandung. 1982. p.145
30
Ibid. Kusumaatmadja, p.146-147
Although the UN General Assembly has no power to make binding decisions, havent

power to compel, the power granted by the Charter only give recommendations. This is different

from the power that belongs to the Security Council in which the Security Council resolution has

a binding force, which is why the right to veto in the Security Council was not in the General

Assembly31.

Pursuant to Article 12 (1) UN Charter which states:

While the Security Council is exercising in respect of any dispute or situation the

functions assigned to it in the present Charter, the General Assembly shall not make any

recommendation with regard to that dispute or situation unless the Security Council so

requests.

In fact, Article 12 (1) of the UN Charter is not a serious limitation of the General Assembly.

In the case Security Council cannot decide an issue due to veto right that used by the member,

those kind of issue of such an agenda is submitted to the General Assembly (thus the problem will

be decided by the non-procedural system, so it doesnt require/ used veto right). General Assembly

are free to discuss the issue. At its inception the United Nations, the General Assembly dominated

by the allied forces, and when the Security Council is powerless to make decisions due to the veto,

the Security Council would shift authority to take security measures by the Security Council to the

UN General Assembly. This happened in 1950 when there was the case in Korea (Uniting for

Peace Resoluiton). But, when countries newly independent such Asian and African has been a

member of the UN and dominate the membership at the General Assembly and voice (vote) in the

UN. When the Communist states (such as the Soviet Union and China and the countries of Eastern

31
Akehurst, Modern Introduction of Interntaional Law, 7th Edition. Routledge; London.1999. p.378-379
Europe) use the General Assembly as a forum to propagate political interests, but the Soviet Union

and China never rely on G.A that can actually support their interests, it due to the General

Assembly is not an organ that have a veto and binding, when the balance of power between the

great powers (super power) is still there, they are more like authorizes the security Council to

resolve the security problems. At the time of post-cold war finished, the authority to decide on

military action based on Chapter 7 of the UN Charter under the authority of the Security Council.

Therefore, the Security Council is often used by the superpowers to win the interests, the

developing countries often are proposing to restructure the Security Council. On the other hand

the General Assembly should be streamlined.32

32
Ibid.,.
CHAPTER III

CLOSURE

Conclusion

The UN General Assembly is arguably the most important forum for the discussion of

global politics. All of the session were reflected and accentuated the changing dynamics of global

politics by providing an environment for global deliberations, an arena for conflict, and an

additional site for diplomacy and transnational issue advocacy. However, it also one of door to

settle international range dispute. By its resolution through General Assembly, it will made change

circumstances in international sphere, by GA resolution, even if containing only recommendations,

but it may implied to the jurisprudence and become the international customary law.

Due to GA character as forum of multilateral negotiation, most of issue seen with more

prevailing on subjectivity, political views was seen with many intervention of power of the state,

dealing with the interest of state. With huge number of member, made many interest to be

discusses, dispute to be settle, and burdened with many working agenda. Meanwhile, as effort to

search consensus in GA Every state must respect the dispute resolution process as a process to

keeping safe and secure condition of global world in the platform of General Assembly as

mentioned in United Charter,


Recommendations

There is so many thing shall be settle and faced by international community, and even the

decision or resolution arent legally binding, and still many things must be addressed and to be

improve. Institutional models possess MU is should not only issuing recommendation resolutiion,

add one committee to determine priority issues that should be discussed by the Security Council,

and to determine the national jurisdiction of the UN member states