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References
Cf. Macgibbon, I., “Means for the Identification....”, op. cit., pages 10–26. See also Roucunas, E., “Engagements parallèles et contradictoire”, R. des C., VI, 206 (1987-VI), pages 9–288; Sepulveda, C., “Methods and Procedures for the Creation of Legal Norms in the International System of States: an Inquiry into the Progressive Development of International Law in the present Era”, German Y.I.L., 1990, Vol. 33, pages 444 et seq.
In this regard, see McWhinney, E., Les Nations Unies et la formation du droit, Pedone/Unesco, Paris, 1986; 1986; Economides, C., “Les actes institutionnels internationaux et les sources du Droit international”, AFDI, 1988, pages 131–145.
When R. Bernhardt published his work on the interpretation of treaties in 1963, he considered that this problem was in the initial stage of its development which made it difficult to understand (see Auslegung..., op. cit., page 2).
See Carrillo Salcedo, J.A., Curso..., op. cit., page 123.
A reinforced binding character due to the principles of primacy, immediate and uniform application enshrined in the case law of the ECCJ. About these questions see Blokker, N., “Decisions of International Organizations: the Case of the European Union”, N.Y.I.L., 1999, vol. XXX, pp. 45–74. Related to the Organization of African Unity see Maluwa, T., “International Law-Making in the Organization of African Unity: An Overview”, Rev. Afr. D.I. & Comp., 2000, vol. 12, no 2, pp. 201–225.
Vallat, F.A., “The competence of the United Nations General Assembly”, R des C., vol. 97 (1959-II), pages 225 et seq. See also Roucounas, E., op. cit., pages 174–193.
Which leads Reuter to state that “when the consent or the institutions arise from a sufficiently representative set of states mainly interested in one question, the consent or institution can sometime generate effects for third party states” (Principes de Droit....”, op. cit., pages 448 et seq.).
See Jacque, J.P., “Acte et norme en Droit International Public”, R. des C., vol. 227 (1991-II), page 388.
See Sloan, B., “General Assembly Resolutions Revisited (forty years later)” BYIL, 1987, page 42; Cf. Quoc Dinh, N., Dailler, P., and Pellet, A., op. cit., pages 356–372.
Dupuy, P.M., Droit International Public, op. cit., page 277.
Sloan, B., op. cit., page 42.
For example, Barberis, J, and Shaw, M.N., International Law, 3rd edition., Grotius, Cambridge, 1991.
See Gonzalez Campos, J.D., Sanchez Rodriguez, L.I. and Andres Saenz de Santa Maria, M. P., op. cit., page 90.
See ICJ, Reports 1974, page 23. With regard to the second matter see ICJ, Reports 1969, page 38. The non-existence of this consensus means that the ten mile rule has not acquired “the authority of a general rule of international law” but, at any rate, it could not be used against Norway “inasmuch as she has always opposed any attempts to apply this to the Norwegian coast” (Fisheries case, ICJ, Reports 1951, page 131).
ICJ, Reports 1971, page 50.
ICJ, Reports 1962, page 163. The part in italics is from the original.
The Institute of International Law (IIL) takes in the different types of documents under the form of Recommendations (Resolution of the Cairo meeting, September 13–21, 1987, Yearbook of the I.I.L., Vol. 62-II, 1987, Pedone, Paris, pages 273–289).
Cf. ibid., Conclusion 4.
Cf. ibid., Conclusion 12.
ICJ, Reports 1986, paragraph 188. Along the same lines, the ICJ mentions the resolution of the Sixth Inter-American Conference held on February 18, 1928, which condemned aggression and Resolution 78 of the General Assembly of American States (OAS), adopted on April 21, 1972 regarding the principles of non-intervention and the self-determination of peoples.
See sloan, B., op. cit., page 69.
Ibid.
See Jimenez de Arechaga, E., “General Course in Public International Law”, HR, (1978-I), vol. 159, page 31.
An example of this is the statement from the ICJ in the case concerning Military and Paramilitary Activities in and against Nicaragua (cf. ICJ, Reports 1986, page 100). In this regard, see Pastor Ridruejo, J.A., Curso de..., op.cit., page 175.
Castañeda, J., “Valeur juridique des résolutions des Nations Unies”, HR, (1970-I), vol. 129, page 171.
See updated information on the state of this Convention in the work published by Burhenne, W.E., Beiträge zur Umweltbestaltung, Internationales Umweltrecht-Multilaterale Verträge, vol. V, E. Schmidt, Berlin, pages 982:92/1 et seq.
See the text in RGDIP, 1994/3, pages 837–857.
Also the Resolution of the General Assembly in point 4, it “Affirms that the Agreement shall be interpreted and applied with Part XI-of the 1982 Convention-as a sole and same instrument” (ibid., page 857).
Cf. Carrillo Salcedo, J. A., Curso..., op. cit., page 131. The italics are from the original. See also Sloan, B., op. cit., page 70.
IIL, Yearbook of the Institute of International Law, 1987, vol. 62-II, page 279.
ICJ, Reports 1971, page 31. Cf. Also the advisory opinion of the ICJ on the Western Sahara Case (Reports 1975, especially page 32). This Resolution was repeated and developed in subsequent Resolutions, 1541 (XV), 1980 (XVII) and 2625 (XXV).
sloan, B., op. cit, page 140. Chapter IV of the Charter is the one concerning the General Assembly.
Ibid. page 57.
See ibid., page 57 et seq.
Ibid. Page 139. This is the case of articles 2.5, 17 and 18 of the Charter.
vallat, F.A., op. cit., page 231.
sloan, B., op. cit., page 140. He adds that “at least in some circumstances the obligation does go further and is a duty not only to consider in good faith but to act in good faith as well. Such duty arises out of the obligations of co-operation implicit in organizational theory and expressly stated in Articles 1(3), 2(5) and 56 of the Charter of the UN” (ibid., page 125).
Cf. Jaque, J.P., op. cit., page 397.
Cf. in this regard Carrillo Salcedo, J.A., Curso..., op. cit., pages 132 et seq.
See Jiménez de Arechaga, E., op. cit., page 34.
See Virally, M., “Résolution et Accord International”, in the collective work Essays in International Law in Honour of Judge Manfred Lachs, Nijhoff, The Hague, 1984. Especially page 299.
As regards this question from the perspective of protection of Human Rights, See Carrillo Salcedo, J.A., “Algunas Reflexiones sobre el valor jurídico de la Declaración Universal de Derechos Humanos”. In the collection, Hacia un nuevo orden internacional y europeo. Homenaje al Profesor M. Díez de Velasco, Tecnos, Madrid, 1993. Especially pages 173–175.
The ICJ refers to these criteria in the case of the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) notwithstanding Security Council Resolution 276 (1970) (See ICJ, Reports 1971, page 50).
See Dupuy, P.M. Droit..., op.cit., page 279.
In Carrillo Salcedo’s opinion, as a result of its political nature, the General Assembly adopts many resolutions which are clearly political in content “most of the time by majority, which naturally has little legal significance as concerns the process for the drafting of the general legal norms” (Curso..., op. cit., page 130).
At doctrinal level some authors choose to put institutional norms at the same level as conventional norms for the purposes of interpretation, and propose that the analysis of the content be done by analogy in accordance with the rules of the 1969 and 1986 Vienna Conventions. sloan, B. (op. cit., page 129) adds that “when the resolution contains a binding decision expressly authorised by the Charter or if this constitutes an agreement, it would seem reasonable to apply the treaty rule on travaux préparatoires” (preparatory works). Virally maintains that the acceptance of the adoption of a resolution also constitutes acceptance of the terms of the resolution “so it is necessary to formulate reservations in order to disassociate, in the event of consensus” (“Résolution et....”, op. cit., page 304).
The adoption of a resolution would only express “an informal agreement regarding the text among all the states which, through their representatives, have contributed to this adoption”, whether by majority, unanimously or by consensus (Virally, M., “Résolution et...”, op. cit., page 301).
Thus Virally himself is inclined to recognise that the adoption of the resolution confers on the regulatory provisions of the text a legal authority which is above its formal classification, and he states that the resolution is of a mixed nature: “formally it is a unilateral act of the committee of the conference which produced it. Due to the conditions of its adoption, it expresses the content of the inter-governmental agreement and is thus of a conventional colouring” (“Résolution et...”, op. cit., pages 301 et seq).
Following this line of thought, the resolution of the IIL at its Cairo meeting in 1987, in its conclusion number 13, states: “A law declaring resolution, adopted without negative vote or abstention, creates a presumption that the resolution contains a correct statement of law. That presumption is subject to rebuttal”. And Conclusion number 14 adds: “In situations where a rule of customary law is emerging from State practice or where there is still doubt whether a rule, though already applied by an international organ or by some States, is a rule of law, a resolution adopted without negative vote or abstention may consolidate a custom or remove doubts that might have existed” (op. cit., 283–285).
Sloan, B., op. cit., page 131.
Dupuy, P.M., Droit......, op. cit., pages 279 et s
See in this regard Carrillo Salcedo, J.A., Curso..., op. cit., page 130. Other criteria apart from the representative nature is, according to P.M. Dupuy, the establishment of a control mechanism which is more or less institutionalised for the monitoring of the resolution by the member states. This control could consist of a periodical examination of the conditions of application laid down in the resolution by an institution of the Organisation (Droit..., op. cit., page 280) The criteria of the representative nature appears backed by the IIL in its Cairo Resolution, “The authority of a resolution is enhanced when it is adopted by a representative majority that includes the main legal systems” (op. cit., page 285).
As stated by the ICJ in the case of Military and Paramilitary Activities in and against Nicaragua (ICJ, Reports 1986, para. 188).
Cf. Virally, M., “Résolution......”, op. cit., page 301
Sloan, B., op. cit., page 131.
See IIL, op. cit., page 285.
See Jacque, J.P., op. cit., page 398. This author describes this agreement as “an informal legal agreement among states”, which must be deduced from the examination of the circumstances involved in the adoption of the resolution (ibid).
As concerns the reservations, the Cairo Resolution of the IIL in its Conclusion number 17, states that “Where a resolution may be subjected to reservations either in the explanations of votes or in other statements, the effect of such reservations is to qualify or limit the extent of approval by the reserving State. Depending on its contents a reservation may mean less than rejection of the rule. It may be merely an expression of doubt. If a resolution expresses existing law, a State cannot exclude itself from the binding force of that law by making a reservation” (op. cit., page 285).
See Jacque, J.P., Acte et norme en Droit International Public”, R. des C., vol. 227 (1991-II) op. cit., page 398.
See Virally, M., “Résolution...”, op. cit., page 303.
Which leads P.M. Dupuy to state that in such cases, whether it is wished or not, “it is a matter of the expression of a meeting of wills, although rather diluted... which is facilitated by the organic framework of the intervention, whose nature is conventionally deaf and difficult to respond to” (op. cit., page 281).
Pastor Ridruejo, J.A., Curso..., op. cit., page 710. Also Carrillo Salcedo who, after he had stressed the negotiation process of the resolution among the states which make up the political groups which constitute the General Assembly, he states that “when this negotiation becomes fruitful and makes the adoption of a resolution possible by consensus or by general agreement, the resolution in question is in fact a concerted judicial act of a nonconventional nature, that is to say, an agreement between states expressed at a judicial act as distinct from an international agreement, with undeniable legal value as a new procedure for drafting legal norms in contemporary International Law...” (Curso..., op. cit., page 134).
The IIL in Conclusion number 10 of the Cairo Resolution of 1987 highlights as criteria for appreciating the intention of states both the drafting and the context of a resolution as these help to determine the scope of the norm, and adds that the presence of “references to international law or equivalent phrases, or the deliberate omission, are relevant but not in themselves” (IIL, op. cit., page 281). See also Amerasinghe, C.F., “Interpretation of texts in Open International Organizations”, BYIL, 1994, pages 175–209.
ICJ, Reports 1986, para. 193.
Cf. Sloan, B., op. cit., page 59. This presumption could only be destroyed if the rejection of the resolution were to be proved by subsequent practice (ibid.).
Ibid., page 60.
See Carrillo Salcedo, J.A., Curso...., op. cit., page 130.
According to Sloan the “resolutions-or at least the votes of States on resolutions-are a part of state practice”, and constitute “a material source of customary law and must be taken into account in considering the current state of the law” (op. cit., page 74). And he adds, the “resolutions are evidence” (ibid., page 85).
Dupuy, P.M., Droit...., op. cit., 283. Sloan adds other factors such as the time and the circumstances, “the international climate in which the resolution was adopted must influence its weight” (op. cit., page 128). These changes give rise to another problem which is the replacement of the commitments and the text of the past by new individual and collective consent. Cf. also Amerasinghe, C.F., “Interpretation of texts....”, op. cit., pages 198–200.
See Dupuy, P. M., Droit..., op. cit., page 290.
Pastor Ridruejo, J. A., Curso..., op. cit., page 177. One of the results of current situation after the changes which have occurred is the new protagonism of the Great Powers and the role they play in the General Assembly. This has led to the fact that international law declarations or texts are not being adopted as frequently as between 1960 and 1990.
ICJ, Reports1971, page 31.
Cf. ICJ, Military and Paramilitary Activities in and against Nicaragua, Reports 1986, para. 188.
According to Virally, the resolutions of the International Organisations “are the expression of a political agreement made between states which have participated in its adoption. Insofar as they share specific commitments for the states, these commitments must be considered as politically binding the states which have accepted them”, and they do not have a value inferior to those the states assume in other actions apart from the institutions of the international organisations or at conferences convened to adopt an agreement” (“Résolution....”, op. cit., pages 305 et seq.). However as P. M. Dupuy points out., “the nature and the intensity of the relations maintained between the two regulation orders, the political order and the legal order” remain to be known. (Droit..., op. cit., page 281).
For example, the 1972 Declaration of Stockholm, the Universal Declaration of Human Rights of December 10, 1948, the Declaration on Protection Against Torture or Cruel, Inhuman or Degrating Treatment or Punishment of December 9, 1975, etc. As regards the Human Rights sector cf. Kiss, A. Ch., “Le rôle de la Déclaration universelle des droits de l’homme dans le développement du droit international”, Bulletin des Droits de l’Homme, éd spéciale, Nations Unies, New York, 1988, pages 51–56. The same can be said as regards the principle of self-determination of peoples.
Sepulveda, C., “Methods....”, op. cit., page 466. The italics are from the original.
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(2007). The Institutionalisation of the International Community Gives a New Dimension to Law Making: The Institutional Norms. In: Sovereignty and Interpretation of International Norms. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-68207-3_3
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