On the 6th of December 2017, Wednesday, US President Donald Trump made a formal declaration recognising Jerusalem as Israel’s capital.
Brief History of Jerusalem
Considered a holy city for both Jews and Muslims, Jerusalem is a hugely politically and religiously contentious city. In November of 1947, in the UN General Assembly resolution that partitioned Palestine, Jerusalem became an international enclave under UN trusteeship. 20 years later, in 1967, the Six-Day War garnered the Israeli forces a number of ‘occupied territories’ – Golan Heights from Syria, Sinai Peninsula and Gaza Strip from Egypt, and West Bank from Jordan. The last of these contained East Jerusalem, which continues to be administrated by Israel today. In 1980, the UN Security Council passed Resolution 478, which called upon countries which held their diplomatic delegations to Israel in Jerulalem to relocate outside the city. Most countries complied and moved to Tel Aviv or other Israeli cities.
Why was the Declaration a Problem?
By declaring Jerusalem as the capital of Israel, not only was this a serious affront to non-Israels living in the city, their lives were seriously put at risk. Following the declaration, violence has broke out in the area with unprecedented swiftness and scale. Not only that, Trump’s declaration voices the intention to move to the US embassy to Jerusalem, an act which contravenes international law by breaking a binding resolution of the US Security Council.
What did the international community do?
The Security Council’s Failure
On the 19th of December, the Security Council voted on a resolution brought forth by Egypt, calling for the withdrawal of Donald Trump’s recognition of Jerusalem as Israel’s capital. However, this fell through when the US vetoed the resolution, as expected.
Of course, this only serves to highlight one of the most glaring faults of the UN Security Council – the P5 and the use of veto powers. However, this is an argument for the future. What is necessary to know now is that, despite existing as a ‘modified’ collective security body, the sharing of power in the UN is definitely not equal. Despite being severely outnumbered in vote, the US’s status as a permanent member (P5) allows it to shutdown the decision of all other members. Just like Russia did with the resolutions regarding Syria, one single disagreement by one of the P5 was adequate to overturn what is an obvious majority.
General Assembly Takes Over
Initiated by Turkey, foreseeing the obvious veto by the US in the Security Council, a call was made for the UN General Assembly to trigger Resolution 377A, also known as the Acheson Plan or the “Uniting for Peace” resolution. On 21st of December, just today, the UN General Assembly reached a decision, rejecting Trump’s Jerusalem move with 128 votes in favour, 9 against and 35 abstains.
The point of this post is not to question the effectiveness of the UN General Assembly’s decision, but rather, to look at what exactly is the “Uniting for Peace” resolution.
The Introduction of Resolution 377A
The resolution was adopted in November 1950, following an impasse by the Security Council with regards to the Korean War. Ironically, since its most recent usage was against the US, it was initiated by the US. While the actual resolution is rather convoluted and its usage even more so, it facilitates action by the General Assembly to take up an issue in the case of a dead-locked Security Council by declaring an “energency special session (ESS). This can either by done by a procedural vote in the Security Council or by request from a majority of UN Members and approved by the Secretary-General.
This is essential because the UN Charter stipulates, essentially, that the Security Council is, by the act of decision-making, superior to the General Assembly and stands above it. Article 12 reads:
In other words, the Security Council’s responsibility towards the General Assembly is simply one of ‘information’. They are not to take into account the opinion of the General Assembly. On the other hand, the General Assembly is not to interfere with the workings of the Security Council, so much so that any issue that the SC has taken up cannot be discussed in the chamber of the GA. Article 377A allows this general rule to be overridden in special circumstances.
Usage of “Uniting for Peace”
While on paper, the Uniting for Peace resolution is aimed at solving many of the problems plaguing the modern UN – especially the deadlock of superpowers in the Security Council, it has proven to have much less of a balancing effect than one would expect.
The triggering of the Resolution requires 2 elements.
Firstly, the Security Council must have failed to adopt a resolution, not because of the failure to achieve a majority of 9 ‘yes’ votes, but because a P5 has vetoed the resolution. This is encapsulated in the resolution itself – “if the Security Council […] fails to exercise its primary responsibility’ due to the lack of unanimity of the permanent members. However, the wording is problematic: Is the casting of a veto contrary to a P5’s primary responsibility in the Security Council?
Secondly, 1 of 3 events must have occurred: threat to the peace, breach of the peace, or act of aggression. Such a decision is for the Security Council, not the General Assembly, as states in Chapter VII Article 39 of the Charter.
Furthermore, a decision of the General Assembly is non-binding in nature while the Security Council’s is. In other words, when a country is found acting contrary to a resolution of the General Assembly, it has not violated international law, as it would if it went against a Security Council resolution.
Even on paper, it seems that the “Uniting for Peace” resolution may not function to its full effect of ensuring international peace and security where the Security Council has failed.
The Uniting for Peace resolution has rarely been triggered and if it did, it is rarely complied with, because it is non-binding. As with the Russia veto in the 3 different Security Council resolutions regarding Syria, none of them were met with the triggering of Resolution 377A. It has even been argued that the Resolution was no longer helpful…well, until this fiasco happened.