, Research Paper
The General Assembly consists of all member states of the United Nations. In accordance with Article 10 of the UN Charta, the Assembly has the power to discuss any matters it sees fit, and to make recommendations to its members, unless the Security Council has seized itself to the situation, Article 12 of UN Charta. Therefore, if there is an argument for an international parliament, the only contender must be the United Nations General Assembly. Though, the influence of the General Assembly cannot be compared to those of a national parliament.
The Assembly has and is producing a great number of important resolutions, however, their legal nature is questionable.
It is the aim of this essay to examine to what extent the resolutions of the General Assembly influence the development of international law.
Influence of resolutions of the General Assembly on the development of international law
Article 38 (1) of the Statute of the International Court of Justice comprises a list of legal principles which should be applied by the Court in determining the rules of international law. This Article provides the recognised sources of international law to be treaty, custom, general principles and the opinions of academics and tribunals. This list is not exhaustive, it is merely an indication to the Court as to the sources it may use.
The resolutions of the General Assembly are not mentioned in Article 38, which leads to the question of their legal status.
There are different opinions on this subject.It is arguable to believe that General Assembly resolutions do not influence the development of international law, because of their political nature. Consequently, they only determine moral and political principles, which are of no legal validity.
On the other hand one may suggest to designate the resolutions of the General Assembly as quasi-legislative value. From this it follows that the resolutions can be compared to binding rules, thus are of legal importance.
However, it would be beyond the scope of General Assembly resolutions to define them as a new source of international law. This can be deduced from the fact that they are not mentioned in Article 38 of the Statute of the International Court of Justice. In addition, there is no evidence in the practice of states to assert that the resolutions of the General Assembly are recognised as a new source of law. Moreover, Article 10 of the UN Charta empowers the Assembly only to make non-binding resolutions. They are meant to be recommendations, which are not immediately legally binding upon the member states. If such resolutions are to have any legal validity they must be encompassed within the existing sources. However, only customary international law develops binding legal force. This leads to the conclusion that resolutions of the General Assembly are legally binding only when they may be considered a rule of customary international law. In order to examine the extent these resolutions influence the development of international law they must be tested against the validity of rules of custom.
Article 38 (1)(b) of the Statute of the International Court of Justice provides that a rule of costum consists of two elements, state practice, and the recognition of the practice by the state as law (the opinio juris).
First of all, we have to consider the requirements for state practice. In accordance with the Asylum Case the International Court of Justice held that for a rule of customary international law to exist the state must act out of an obligation and not merely political pressure. There is no minimum time limit on the duration of state practice before the rule may be considered as part of customary law. The test is whether the rule is generally accepted in the practice of state.
State practice can be identified through various factors: the action of states, publicised views of government, official response to international law, decision of municipal courts and participation by the state in international agreements.
One aspect of state practice is, thus, the way a state participates in an international arena, such as the General Assembly. In other words, the way states vote in the Assembly and the explanation given upon such occasions constitute evidence of state practice and state understanding as to the law.
However, a vote in favour, even by all states, is insufficient to create a rule of customary international law, if there is a lack of the necessary opinio juris. Where such opinio juris is absent the rule may be considered part of soft law of the international community but may not be considered as a binding rule of international law. Differently to rules of customary law, not to comply with soft law may cause diplomatic offences but does not break the law. Rules of customary international law are compulsory and impose a legal duty upon the state concerned.
Although it is difficult to identify an abstract body, such as a state, as being conscious of having a duty, the importance of the requirement of opinio juris to customary international law has been re-affirmed in a number of judgements by the International Court of Justice.
In the Nicaragua case the court held that the opinio juris requirement could derive from the circumstances surrounding the adoption and application of a General Assembly resolution. This comment, however, may well have referred solely to the situation where the resolution in question defines or elucidates an existing treaty commitment.
However, one may suggest that the view of the International Court of Justice expressed in the Nicaragua case is from a general validity. Thus, a resolution of the United Nations General Assembly, which has been adopted with the support of all, or nearly all, member states, can generally be seen as evidence of customary international law. From this it follows that they represents not only the opinio juris of the individual states, but the opinio juris communis, the common opinion of states as to the law. The resolution would probably have exactly the same value if it had been passed at a conference outside the framework of the United Nations, and, if many states vote against it, its value of evidence of customary law is correspondingly reduced. In accordance with this approach General Assembly resolutions have a great influence on the development of international law.
There are certain resolutions, which affirm this approach. They have been specifically declared to be law-making by the International Court of Justice.
For example, the 1960 Declaration on Granting of Independence to Colonial Peoples and Countries. This resolution represents an important stage in the development of international law in regard to non-self-governing territories. It was adopted with no oppositions and only nine abstentions and followed a series of resolutions in general and specific terms attacking colonialism and calling for self-determination of the remaining countries. In the Western Sahara advisory opinion in 1975 the International Court of Justice referred to this resolution in enunciating the principle of self-determination as a right of people. Thus, it has marked the untransmutation of consent of self-determination from a political and moral principle to a legal right. Another example for state practice, which has led to a binding rule of customary law is the Declaration on the Legal Principles Governing Activities of States in the Exploration and Use of Outer Space in 1963.
Further, the General Assembly resolution 3314 (XXIX), the Definition of Aggression , has been accepted by the Court as one that could be taken to reflect customary international law . Other resolutions of this category are the General Assembly resolution 1541 (XV) and the General Assembly resolution 2625 (XXV), which were also declared to be law-making by the Western Sahara advisory opinion. Apart from that, they can be understood as authoritative interpretations by the Assembly of the various principles of the United Nations Charta.
However, scepticism should be employed to this perceptions of General Assembly resolutions, because not all resolutions can be considered part of customary international law. Some resolutions may simply be recommending changes, and therefore cannot be interpreted as customary international law.
For example, the General Assembly resolution adopting the Declaration on the Right of Peoples to Peace merely approves a text which is annexed to the resolution and requests the Security-Council to ensure the widest dissemination of the Declaration to States, intergovernmental and non-governmental organisations. This declaration received UN approval and has recommendatory force, but cannot be said to be legally binding. The Assembly is pre-eminently a political body which passes resolutions. A number of states would not accept those resolutions if they were to believe themselves entering into binding international obligations. Thus, it is questionable in which cases General Assembly resolutions should be viewed as legally binding.
One way to decide whether states, who vote in favour of a General Assembly resolution, fulfil the requirement of the opinio juris, can be evidenced through the wording of the resolution. If the vast majority of states consistently vote for resolutions and declarations on a particular topic, a general state practice is reflected and a binding force may well emerge. The repetition of the particular resolution shows the uniformity and constancy of that particular state practice.
Resolutions most likely to considered part of customary international law are those which codify existing costum, or purpose instant international custom with universal support.From all this follows that General Assembly resolutions might reflect or be evidence of the development of international law, however the evidential value of General Assembly resolutions must depend on their circumstances.
The overall picture shows that General Assembly resolutions may contribute to the formation of customs and have a great influence on the development of international law. Such resolutions are able to speed up the process of legislation of a state practice and also enable to speedier adaptation of customary law.
However, the notion of the influence of General Assembly resolutions on international law would be restrictive if they were generally seen as evidence of customary law. One reason for this is that governments act with political motives as well as in accordance with legal norms. Therefore, the vote for a particular resolution can also be established through political pressure. Consequently, the way states participate in the General Assembly do not always reflect their opinio juris and are, thus, not evidence of customary international law.
General Assembly resolutions should be judged on its own merits. A general statement about their legal influence is difficult. However, a number of resolutions are expressively declared to be legally binding and law-making by the International Court of Justice. These particular resolutions may also been seen as evidence of customary international law. They carry a considerable weight as interpretations of the Charta, statements of the law or quasi-judicial determination. Furthermore, nearly all the states of the world are represented in the General Assembly. From this it follows that the value of that organ in general political terms and in terms of the generation of state practice, which may or may not lead to binding custom, is enhanced.Nevertheless there must be scepticism in ascribing legal value to everything that emanates from the Assembly. Resolutions are often the result of political compromises and arrangements and comprehended in that sense, never intended to constitute binding norms.