Abstract
The General Assembly, like other organs of the United Nations, interprets the Charter and other international agreements from day to day in connection with the performance of its functions. It also applies the principles of the Charter and other principles of international law when required by circumstances. In the absence of a compulsory adjudicatory process in the international legal order, political organs of the international organizations have to perform quasi-judicial service in discharging their functions. This is not to say that the process is comparable to the judicial process. Several factors inevitably enter into the quasi-judicial determinations of political organs which may be absent in a strictly judicial process. But that is the best the international legal system can afford at present, and it is not entirely without merit since it lends itself to greater flexibility and creativity than would otherwise exist. It de-emphasises the shortcomings of the law-creating process, particularly the absence of a legislature.
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References
Kelsen, Recent Trends in the Law of the United Nations 960 (1951); Pollux, “The Interpretation of the Charter,” 23 Brit. Yb. Int’l L. 54 (1946).
Schachter, O. “The Relation of Law, Politics and Action in the United Nations,” 109 Recueil des Cours 185 (1963).
Interpretation as a legal function can be performed only by those whom the law authorizes to interpret, i.e., the law-creating or law-applying organs. Kelsen, The Law of the United Nations xvi (1950).
Fitzmaurice, “Law and the Procedure of the International Court of Justice,” 28 Brit. Yb. Int’lL. 1 (1951).
Id., at 2.
Afghanistan, U.N. Gen. Ass. Off. Rec. 17th Sess., 6th Comm. 142-144 (A/C.6/SR.762) (1962); Algeria, Id., at 138-139 (A/C.6/SR.761); Argentina, Id., at 119-120 (A/C.6/SR. 758); Ceylon, Id., at 149-150 (A/C.6/SR.762); Hungary, Id., at 112 (A/C.6/SR.756); Syria, Id., at 156 (A/C.6/SR.764); U.A.R. Id., 18th Sess., 6th Comm. 164 (A/C.6/SR.8l1 (1963).
McDougal, “International Law, Power and Policy,” 82 Recueil des Cours 143–157 (1953); Pollux, “The Interpretation of the Charter,” 23 Brit. Yb. Int’lL. 55 (1946); Kelsen, The Law of the United Nations xiii-xvii (1950).
See McDougal and Gardner, “The Veto and the Charter: An Interpretation for Survival,” 60 Tale L. J. 258 (1951).
Reparations for Injuries Suffered in the Service of the United Nations (1949) I.C.J. Rep. 174; International Status of South-West Africa (1950) I.C.J. Rep. 128; Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South-West Africa (1955) I.C.J. Rep. 73; Certain Expenses of the United Nations (Art. 17, para. 2 of the Charter) (1962) I.C.J. Rep. 151; South-West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa) (Preliminary Objections) (1962) I.C.J. Rep. 319. The teleological interpretation by the Court is not extreme. It is reflected in the application of the principle ut magis valeat quam pereat, in the doctrine of implied powers, and heavy reliance upon the subsequent practice of the organs. See generally Vallat, “The Competence of the United Nations General Assembly,” 97 Recueil des Cours 281-286 (1959); Fitzmaurice, “Law and Procedure of the International Court of Justice,” 28 Brit. Yb. Int’lL. 1 (1951); Id., 29 Brit. Yb. Int’lL. 1 (1952). For a formulation of principles of interpretation applied by the Court, see Fitzmaurice, “Law and Procedure of the International Court of Justice,” 33 Brit. Tb. Int’lL. 221-211 (1957).
Vallat, F. A., “The General Assembly and the Security Council of the United Nations,” Brit. Yb. Int’lL. 66–67 (1952); Schachter, “The Relation of Law, Politics and Action in the United Nations,” op. cit. supra note 2, at 185-198. The norms of the Charter like those of any other system are of varying degrees of generality. Schachter groups them into four classes — rules, principles, standards, and doctrine or general theory. An interesting classification was provided by the Ceylonese delegate — a) the preamble, b) the purposes, c) the principles, d) substantive rules and e) procedural rules. U.N Gen. Ass. Off. Rec. 17th Sess., 6th Comm. 149-150 (A/C.6/SR.763) (1962). Roscoe Pound gives a more sophisticated classification of legal norms — rules, principles, conceptions, doctrines and standards in order of generality. See Pound, “Hierarchy of Sources and Forms in Different Systems of Law,” 7 Tul. L. Rev. 475 (1933). Whatever classification adopted, the legal norms of any system vary from the concrete to the more general, and the degree of generality affects the scope of alternative interpretations. Very general concepts leave much room for policy choices in interpretation and application. The problem of interpreting broad concepts is not new. Judge Jessup points out in his Separate Opinion in the South-West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa) that courts can and have determined whether particular laws or actions comply with general broad criteria such as “due process,” “equal protection” and “religious freedom.” He continues to say that “there is no reason why this Court should be unable to determine whether various laws and regulations promote the’ material and moral well-being and the social progress of the habitants’ of the mandated territory.” He was answering the claim that disputes involving the application of such broad criteria are difficult to settle by negotiation. (1962) I.C.J. Rep. 428-429.
McDougal, M., op. cit. supra note 7, at 143–157. We are unable to support Kelsen’s view that interpretation is determined by what is “politically preferable” if this is intended to mean more than proper policy choices, to include arbitrary determinations based on political expediency. See Kelsen, op. cit. supra note 3, at xv.
Kelsen, op. cit. supra note 3, at xiv-xv; McDougal, op. cit. supra note 7, at 143-157; Fitzmaurice, “Law and Procedure of the International Court of Justice,” 28 Brit. Tb. Int’l L. 4 (1951).
Infra, at 71-72.
See, e.g., Robinson, “Metamorphasis of the United Nations,” 94 Recueil des Cours 497 (1958).
(1951) I.C.J. Rep. 115. See also Interpretation of Peace Treaties, (1950) I.C.J. Rep. 65.
See note 6.
Ireland, U.N. Gen. Ass. Off. Rec. 17th Sess., 6th Gomm. 173 (A/C.6/SR.766) (1962): New Zealand, Id., 6th Comm. 171-172 (A/C.6/SR.766) (1962).
Vallat, op. cit. supra note 9, at 211. Kelsen, op. cit. supra note 1, at 960.
13 UNCIO, at 709.
Vallat, op. cit. supra note 9, at 211.
Schachter, op. cit. supra note 2, at 186-7. Dissenting opinion of Judge Winiarski in Certain Expenses of the United Nations Case, (1962) I.C.J. Rep. 227-234. Lachs, “Law in and of the United Nations,” I Indian Journal of International Law 439 (1961).
Schachter, op. cit. supra note 2, at 186. The record of debates may also be evidence of what the international community regards as customary law. For example, Lissitzyn points out that the consensus of the Security Council in the debates concerning the U-2 incident, was that the shooting down of an aircraft flying over the high seas even though engaged in reconnaissance and flying within close proximity of the shooting state would be contrary to international law. Lissitzyn, “Some Legal Implications of the U-2 and RB-47 Incidents,” Am. J. Int’l L. 140 (1962).
(1962) I.C.J. Rep., 197. See Robinson, op. cit. supra note 14.
Pollux, op. cit. supra note 1; McDougal and Gardner, op. cit. supra note 8.
(1962) I.C.J. Rep. 168.
Ibid.
See separate opinion of Morelli, (1962) I.C.J. Rep. 223.
(1962) I.C.J. Rep. 168.
W., at 960-1.
(1948) LC. J. Rep. 64.
(1962) I.C.J. Rep. 200. Also Winiarski, Id., at 230.
Infra, at 177.
Schwelb, “The Nuclear Test Ban Treaty and International Law,” 58 Am. J. Int’lL. 646 (1964).
Schachter, “The Quasi-Judicial Role of the Security Council and of the General Assembly,” 58 Am. J. Int’l L. 964 (1964).
Id., at 960-1.
See Rosenne, “Recognition of States by the United Nations,” 26 Brit. Tb. Int’l L. 437 (1949). Schachter, “The Development of International Law Through the Legal Opinions of the Secretariat,” 25 Brit. Yb. Int’lL. 109-115, (1948). Higgins, The Development of International Law through the Political Organs of the United Nations 11-57, 131–166 (1963)
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© 1966 Martinus Nijhoff, The Hague, Netherlands
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Asamoah, O.Y. (1966). Significance of Declarations as Interpretation and Application of International Law. In: The Legal Significance of the Declarations of the General Assembly of the United Nations. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9495-2_4
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