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Special Notes: Constitutional Law, Resolutions of General Assembly as a Source of International Law

 

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Resolutions of General Assembly as a Source of International Law

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Introduction

“More than ever before in human history, we share a common destiny. We master it only if we face it together. And that, my friends, is why we have the United Nations”. This quote by Kofi Annan in a single sentence defines the current scenario of the world politics with respect to International law in which UN is the part and parcel. The evolution of international organisation represents a significant stage in the history and development of modern international law. International organisation in its wider sense. is the process of organising complexity of international relations. In fact after the establishment of UN. most of the development of international law and its codification has taken place through the instrumentality of international organisations. General Assembly: one of the principal organs of UN. has established International Law Commission. The decisions and determinations of organs are now recognized as an important source of international law (although they do not find mention in Art. 38 of the Statute of ICJ). The reason for this was quite obvious that by this time international organisations had not assumed such an important role as they have done now.

General Assembly being one of the most important organ of the United Nations serves as one of the most important source of International law. As per Article 10 of the U.N charter it can discuss any issues that fall under the scope of the Charter. Article 18 gives it power to uses one state, one vote principle and allows large blocks of smaller/developing nations to pass resolutions that may go against interests of larger members. Under article 10 it can make recommendations for no binding/ legislative authority but lack power of enforcement (Security Council has that), Goal of promoting international cooperation and serves as a forum for debate between member countries.

Resolutions of general Assembly

The International Court of Justice in the advisory opinion given in the Legality o” the Threat or Use of Nuclear Weapons [ICJ Reports (l996), p 70] stated that “the Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances provide evidence important for establishing the existence of a rule or the emergence of an opinio juris.”

The General Assembly vide Resolution 49/75 dated 15 Dec., l994 requested the IQ to give its advisory Opinion on the following question: “Is the threat or use 0’ nuclear weapons in any circumstances be permitted under International law”? The [C] unanimously held that there is no specific authorization for the threat or use of nuclear weapons under customary or conventional law. There is an obligation of the members of UN to pursue in good faith and conclude negotiations leading to nuclear disarmament under effective international control.

The resolutions of the General Assembly or the United Nations do not pose legal character, and as such are not binding on the States. They do no, creates legal obligations on its members irrespective of the fact that they have adopted unanimously or by overwhelming votes or even if their contents at matter of common interest to all the States. However, if a resolution is “dome: I unanimously or by two-third majority of the members, and if the same resolution finds reflections in many other subsequent resolutions, it must not be lightly weighted. The International Court of Justice in the advisory opinion given in the ‘ Legality of the Threat or Use of Nuclear Weapons stated that the Court notes that General Assembly resolutions, even if they are not binding, may sometimes normative value. They can, in certain circumstances, provide evidence important to establishing the existence of a rule or the emergence of an opinion juris. Rosalyn Higgins has rightly stated that resolutions with similar contents repeatedly voted for overwhelming majority giving rise to a general opinion juris  have ‘created the norm in question. They may contribute to the formation of customary rule or be evidence that it is already formed.

Legal significance of the Resolutions of the General Assembly

’Resolutions of the General Assembly of the United Nations do lack possess legal character, and as such are not binding on the States. They do not create any legal obligations on its members irrespective of the fact that they have been adopted unanimously or by overwhelming votes or event, the contents of it is a matter of common interest for all the States. However if a resolution is adopted unanimously or by two-third majority of in members, and if the same resolution finds reflections in many other subsequent resolutions, it must not be lightly weighed. “Resolutions with similar contents repeated through time, voted for overwhelming majority giving rise to a general opinion juris, have created the norm in question (Rosalyn Higgins).

At present there is a difference of opinion between the Western States and Third World countries regarding the competence of the resolutions of General Assembly in creating customary rules of international law. The former are of the opinion that resolutions may at most be taken into consideration as elements in the formation of a customary rule on condition that they are confirmed by the corresponding practice on the part of States. The latter are of the View that these resolutions constitute the expression of the will of international community, and therefore they themselves have a capacity to form custom and the declaration of general principle of law4 It is submitted that resolutions of General Assembly have a tendency to acquire the character of customary rules in the sense that they fulfil the essential elements of custom i.e. generality and continuity.

Critical Analysis and Conclusion

The resolutions of General Assembly have become a stepping stone. A stage in the political and legal process is as an evidence of the view of the States a factor in the development of international law. They are helpful in the agreement between States and contribute in preparing the necessary environment for the development of the rules of international law. In South-West Africa case (1966) Judge Jessup remarked that numerous resolutions of General Assembly condemning apartheid was declared an international crime by International Convention on Apartheid, 1973 the World Court declared it as violative of international law and obviously this decision was based on resolutions of General Assembly. The resolutions and declarations of General Assembly have capacity to become the sources of universal international law. In Reservation to Convention on Genocide (ICJ, Rep. 1961), Judge Alvarez aptly remarked. They have not yet acquired a binding character, but they may acquire if they receive the support of public opinion.

For the time being, United States courts should continue to refuse to treat General Assembly Resolutions as authoritative sources of international law. This is not because the traditional sources are superior in every respect. They are not. Instead, it is because General Assembly Resolutions remain too unreliable to regard as definitive sources. The United Nations General Assembly has remained a political body endowed with the advantages of open and uninhibited discussion. It serves a valuable function as a forum for the expression of momentary indignation and deeply held sentiments. But its strengths as an international political body are also its weaknesses as a legislative body. If member nations knew they would be bound by their votes, many Resolutions would never be passed, and the General Assembly’s unique function as the voice of world opinion would be undermined. Without General Assembly Resolutions as authoritative sources, principles of international law will continue to be difficult to ascertain. The four traditional sources of international law require more than casual examination before they will yield principles on which to found an adjudication of rights. Judicial decisions on international law are infrequent. Writings of publicists on most issues rarely suggest a uniform result. Principles of customary international law depend on the amorphous variables of each nation’s practice and the world community’s acceptance as law of a given principle. General Assembly Resolutions can contribute to a determination of a particular custom as long as these Resolutions are considered evidence, and not complete proof, of the principles they support.

By Tanay Akash

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