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The Seventh Emergency Special Session of the UN General Assembly: An Exercise in Procedural Abuse
Published online by Cambridge University Press: 27 February 2017
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- Copyright © American Society of International Law 1986
References
1 GA Res. ES-7/2, para. 14 (July 29, 1980); ES-7/4, para. 17 (Apr. 28, 1982); ES-7/5, para. 10 (June 26, 1982); ES-7/6, para. 12 (Aug. 19, 1982); ES-7/9, para. 10 (Sept. 24, 1982).
2 The UN Charter itself makes no mention of emergency special sessions. Under Article 20 of the Charter, “[t]he General Assembly shall meet in regular annual sessions and in such special sessions as occasion may require. Special sessions shall be convoked by the Secretary-General at the request of the Security Council or of a majority of the Members of the United Nations.” The dominant view regards emergency special sessions as a streamlined version of special sessions in general, designed to meet the emergency situations they are intended to address. See, e.g., Bowett, D., United Nations Forces 297–98 (1964)Google Scholar.
3 On the entry into force, in September 1965, of the Charter amendments adopted by the General Assembly on Dec. 17, 1963 (Res. 1991 (XVIII)), which, inter alia, enlarged the Security Council from 11 to 15 members and correspondingly increased from 7 to 9 the number of votes required to adopt a decision by the Council, the General Assembly passed Resolution 2046 (XX) of Dec. 8, 1965. That resolution amended Rule 8(b) of the Assembly’s Rules of Procedure, which now reads as follows:
Emergency special sessions pursuant to General Assembly resolution 377A (V) shall be convened within twenty-four hours of the receipt by the Secretary-General of a request for such a session from the Security Council, on the vote of any nine members thereof, or of a request from the majority of the Members of the United Nations . . . or of the concurrence of a majority of Members. . . .
Of the nine emergency special sessions held to date, all but three have been convened by decisions of the Security Council, the exceptions being: (1) the fifth emergency special session on the Middle East (1967); (2) the seventh emergency special session on Palestine (1980); and (3) the eighth emergency special session on Namibia (1981).
4 Of the voluminous literature on this topic, see Kelsen, H., Recent Trends in the Law of the United Nations 962–83 (1951)Google Scholar; Andrassy, , Uniting for Peace , 50 AJIL 563 (1956)CrossRefGoogle Scholar; Vallat, , The Competence of the United Nations General Assembly , 97 Recueil des Cours 203, 264–67 (1959 II)Google Scholar; Goodrich, L. & Simons, A., The United Nations and the Maintenance of International Peace and Security 427–33 (1955)Google Scholar; D. Bowett, supra note 2, at 290–98.
5 1962 ICJ Rep. 151, 162–63 (Advisory Opinion of July 20).
6 GA Res. 1854A (XVIII) (Dec. 19, 1962).
7 UN Doc. A/6717 (1967). Mr. Gromyko made no explicit reference to Rules 8(b) and 9(b) of the Rules of Procedure of the General Assembly, which had been adopted in the annex to the “Uniting for Peace” Resolution. However, the Permanent Representative of the United States, Ambassador Goldberg, stated in his letter to the Secretary-General, dated June 15, 1967, that “the ‘Uniting for Peace’ resolution and Rules 8(b) and 9(b) of the General Assembly’s rules of procedure constitute the only sources of authority and the basis for the holding of an emergency special session.” UN Doc. A/6718-S/7987 (1967).
8 In later years, the General Assembly has made findings to this effect which, admittedly, are not binding on the Security Council. Cf. Goodrich, L., Hambro, E. & Simons, A., Charter of the United Nations 295 (3d rev. ed. 1969)Google Scholar.
9 This was essentially the argument put forward—unsuccessfully—by the representative of Poland in 1960 in an attempt to prevent the Security Council from adopting Resolution 157 (1960), which called for the convening of the fourth emergency special session on the Congo. 15 UN SCOR (906th mtg.), para. 188, UN Doc. S/PV.906 (1960).
Similarly, in objecting to the convening of the fifth emergency special session in June 1967, the United States representative, Ambassador Goldberg, pointed out that there had been no lack of unanimity of the permanent members, since “five . . . resolutions were adopted unanimously. A sixth draft resolution failed of adoption because it did not receive sufficient votes. Several other draft resolutions are pending before the Council. . . .” UN Doc. A/6718-S/7987 (1967).
10 11 UN GAOR (572d plen. mtg.), para. 28, UN Doc. A/PV.572 (1956).
11 1967 UN Juridical Y.B. 321, 324, para. 18. Neither the legal opinion nor the President of the first emergency special session referred to the question of holding two emergency special sessions simultaneously; this occurred in 1956 when the second emergency special session (Hungary) was held between Nov. 4 and 10, and the first emergency special session (Suez) was held between Nov. 1 and 10, with Mr. Ortega (Chile) as President of both sessions.
The same logic that militates against the holding of an emergency special session simultaneously with a regular session also seems prima facie to justify that no two emergency special sessions (or, for that matter, a special session and an emergency special session) be held simultaneously.
However, it must be borne in mind that in practical terms it may be easier to convene a separate emergency special session than to have an additional item inscribed on the agenda of a special (or emergency special) session already convened. Under Rule 19 of the Rules of Procedure of the General Assembly, the inscription of additional items on the agenda of special and emergency special sessions requires a two-thirds majority of members present and voting, with the added and logical proviso that only matters dealt with in the “Uniting for Peace” Resolution can be inscribed on the agenda of an emergency special session. By contrast, the convening of a separate emergency special session requires only the votes of nine members of the Security Council or a simple majority of the UN membership and may thus be more speedily or more easily effected than the inscription of an additional item on the agenda of a session already convened.
12 Thus, e.g., the 5th session of the General Assembly (opened on Sept. 19, 1950) closed on Nov. 5, 1951; the 31st session (opened on Sept. 21, 1976) closed on Sept. 19, 1977. For the closing dates of the General Assembly’s regular sessions in the sixties and seventies that extended beyond their initial 13-week period, see Mourgeon, , Les Sessions peu ordinaires de I’Assemblée Générate , 25 Annuaire Français de Droit International 491, 495–96 (1979)Google Scholar.
13 Likewise, on Dec. 3, 1948, the General Assembly reestablished the Interim Committee “for the period between the closing of the present session and the opening of the next regular session of the General Assembly.” GA Res. 196 (III) (Dec. 3, 1948).
14 Emphasis added.
15 Res. 2 of the Conference on the Question of Palestine, reprinted in UN Doc. A/34/542, at 172, 175, para. 11(1979).
16 UN Doc. S/13911 (1980).
17 UN Doc. S/PV.2220 (1980).
18 See Note by the Secretary-General, UN Doc. A/ES-7/1 (1980).
19 See the statement of the representative of Israel of July 23, 1980, UN Doc. A/ES-7/PV.3, at 26 (1980); see also his letter to the Secretary-General, July 21, 1980, UN Doc. A/35/344 (1980).
20 This aspect of the emergency special session procedure was also referred to by the representative of Israel in connection with the convening, under Security Council Resolution 500 (1982) of Jan. 28, 1982, of the ninth emergency special session (Golan). The Security Council decided to call that emergency special session following the exercise of the veto by the United States on Jan. 20, 1982 (UN Doc. S/PV.2329, at 52 (1982)), to defeat a Jordanian draft resolution (UN Doc. S/14832/Rev.1 (1982)). At the second meeting of that emergency special session, on Jan. 29, 1982, the representative of Israel, in referring to its mise–en–scène, told the General Assembly:
In requesting the Security Council to convene an emergency special session [the sponsors of this phony emergency special session] could have been expected to behave as if they believed that an emergency situation existed. One would have expected them to submit their request immediately after the Jordanian draft resolution failed of adoption in the Security Council last week. Instead, it took them a whole week and more for “consultations” on a variety of questions . . . including, among other things, the question as to the exact timing at which their contrived emergency would become so urgent as to require this extraordinary abuse of United Nations procedure.
The magnitude of this alleged emergency can also be readily gauged from the fact that none of the sponsors of this exercise was ready to speak this morning. We also understand that this phoney emergency will be suspended for the duration of the week–end so as not to interfere with the week-end plans of all those involved.
UN Doc. A/ES-9/PV.2, at 22 (1982).
20a However, in a legal memorandum dated July 21, 1980, from the Office of Legal Affairs, addressed to the Secretary-General, it was asserted:
The veto [of Apr. 30, 1980] is a matter of public record and as regards the requirement of a threat to the peace the Secretary-General cannot substitute his judgement for that of the Government requesting an emergency special session.
. . . [I]t is for the General Assembly . . . to decide whether a request for an emergency special session meets the requirements of resolution 377A (V). This has in effect been answered in the present case in the affirmative by the concurrence of a majority of Members in the request for the convening of the seventh emergency special session.
1980 UN Juridical Y.B. 187–88.
21 It should be pointed out, though, that there was also a delay of several months with regard to the convening, on Sept. 3, 1981, of the eighth emergency special session on Namibia. The “lack of unanimity of the permanent members” occurred in that instance on Apr. 28, 1981, at the 2275th meeting of the Security Council, when triple vetoes (France, the United Kingdom and the United States) were cast to defeat four draft resolutions then before the Council. The convening of the emergency special session, based on those vetoes, was requested by the Permanent Representative of Zimbabwe, in his capacity as Chairman of the African Group, on Aug. 12, 1981, i.e., over 3 months later. See his letter of that date, addressed to the Secretary-General, reproduced in the annex to UN Doc. A/ES-8/1, ES-8 UN GAOR Annexes at 213–14(1981).
In an apparent attempt to justify this long delay, the Permanent Representative of Zimbabwe stated in his letter that “[s]ubsequent negotiations have failed to resolve or even to advance towards the resolution of the issues” underlying the Namibian question. Id. However, this line of argument sounds rather unconvincing for two reasons: (1) it took the majority of the membership another 3 weeks to concur in the request; and (2) the session was eventually timed to convene less than 2 weeks before the opening, on Sept. 15, 1981, of the 36th regular session of the General Assembly, which could have given the question of Namibia—already on its provisional agenda as item 36—priority treatment under Rule 40 of its Rules of Procedure. Moreover, the question of Namibia (referred to as South West Africa until the mid–sixties) having engaged the United Nations virtually since its establishment, there did not appear in the summer of 1981 to be any particular circumstances that met the requirements of Resolution 377A (V) and warranted an emergency special session on the subject at that time.
22 There appears to have been one exception to this practice. The fifth special session held between Apr. 21 and June 13, 1967 dealt with the questions of South West Africa, peacekeeping and the postponement of the UN Conference on Outer Space. In addition, new members have been admitted to the United Nations in the course of special sessions (Burma at the 2d special session in 1948, Kuwait at the 4th in 1963, and Zimbabwe at the 11th in 1980), but this can hardly be regarded as a real departure from the usual practice of devoting such sessions to one substantive agenda item only.
23 The procedural possibility of including additional items at an emergency special session does exist under Rule 19 of the Rules of Procedure of the General Assembly, provided that the additional item relates to “the matters dealt with in resolution 377A (V)” and that the inclusion is effected by a two–thirds majority of the members present and voting.
24 1967 UN Juridical Y.B., supra note 11, at 325, para. 20.
25 GA Res. 2257 (ES-V), para. 1 (Sept. 18, 1967).
26 Statement of Aug. 17, 1982, UN Doc. A/ES-7/PV.26, at 28–30 (1982) (emphasis added).
27 Letter to the President of the General Assembly, Apr. 21, 1982, UN Doc. A/ES-7/18 (1982).
28 UN Doc. A/ES-7/PV.12, at 51 (1982).
29 UN Doc. A/ES-7/16 (1982).
30 UN Doc. A/ES-7/17(1982).
31 Id.
32 GA Res. ES-7/9, supra note 1, para. 10.
33 See GA Res. ES-7/5, ES-7/6 and ES-7/9, supra note 1.
34 The 36th regular session was formally closed on Sept. 20, 1982. Beyond the initial 13-week deliberations (between Sept. 15 and Dec. 18, 1981), it also met between Mar. 16 and 29, 1982, and on Apr. 28, 1982, immediately following the temporary adjournment of the seventh emergency special session.
35 See letter from the representative of Israel to the President of the General Assembly, Sept. 22, 1982, UN Doc. A/ES-7/20 (1982).
36 Under Rule 40, the General Committee of the General Assembly, which, under Rule 38, is composed of the President, the 21 Vice-Presidents and the Chairmen of the 7 main committees of the General Assembly, shall, inter alia, recommend “what priority should be accorded to an item the inclusion of which has been recommended [by the General Committee].”
37 UN Doc. A/ES-7/PV.3, at 26 (1980).
38 Conforti, , The Legal Effect of Non–Compliance with Rules of Procedure in the General Assembly and the Security Council , 63 AJIL 479, 486 (1969)Google Scholar.
39 Statement on the Interpretation of the Charter, Final Report of Committee IV/2, Doc. 933, IV/2/42, 13 UNCIO Docs. 709 (1945).
Under Article 96(1) of the Charter, the General Assembly may, of course, request that the International Court of Justice give an advisory opinion on any legal question. However, for obvious reasons, the majority in the General Assembly is usually very reluctant to subject its actions to such legal scrutiny. Moreover, even in those instances in which an advisory opinion has been sought, it cannot be considered as being legally binding per se. See 2 Rosenne, S., The Law and Practice of the International Court 747 ff (1965)Google Scholar.