November 29, 2012 | Eli E. Hertz
A
host of resolutions passing annually by the General Assembly are not
legally binding documents by any measure. One needs only to read Article
10 of the UN Charter:
“The General Assembly may discuss any
questions or any matters within the scope of the present Charter or
relating to the powers and functions of any organs provided for in the
present Charter, and, except as provided in Article 12, may make recommendations to
the Members of the United Nations or to the Security Council or to both
on any such questions or matters” [italics by author].
Professor, Judge Schwebel, the former president of the International Court of Justice, has written that:
“The
General Assembly of the United Nations can only, in principle, issue
‘recommendations’ which are not of a binding character, according to
Article 10 of the Charter of the United Nations.”[1]
Schwebel
also cites the (1950) opinion of Judge, Sir Hersch Lauterpacht, a
former member judge of the International Court of Justice, who declared
that:
“The
General Assembly has no legal power to legislate or bind its members by
way of recommendation.” Yet, another former ICJ judge, Sir Gerald
Fitzmaurice, has been just as resolute in rejecting what he labeled the
“illusion” that a General Assembly resolution can have “legislative
effect.”[2]
Academics and renowned international law experts also agree. Professor Stone illuminates this subject by pointing out:
“In his book The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations, Professor Gaetano Arangio-Ruiz [3]
is led to conclude that the General Assembly lacks legal authority
either to enact or to ‘declare’ or ‘determine’ or ‘interpret’
international law so as legally to bind states by such acts, whether
these states be members of the United Nations or not, and whether these
states voted for or against or abstained from the relevant vote or did
not take part in it.” [4,5]
Certain General Assembly resolutions may be recognized as “declaratory,” but no more. Among Schwebel conclusions:
“Certain
resolutions of the General Assembly – viewed as expressions of the
assembled States of the world community … which treat questions of
international law which are not the subject of principles found in the
United Nations Charter may be recognized to be declaratory, though not
creative, of international law, provided that they are:
(i)
adopted with the support of all assembled States, or, at any rate, of
all the groups of States represented in the General Assembly, including
major States that are not members of a group, such as the United States
of America and China.”
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1 Professor, Judge Stephen M. Schwebel, The Legal Effect of Resolutions and Codes of Conduct
of the United Nations in Justice in International Law, Cambridge University Press, 1994.
Opinions quoted in this critique is not derived from his position as a judge of the ICJ.
2 Cited in Israel and Palestine, Assault on the law of nations, Professor Julius Stone, The
Johns Hopkins University Press, 1981. p. 29.
3
Professor Gaetano Arangio-Ruiz “The United Nations declaration on
friendly relations and the system of the sources of international law”
Publisher: Alphen aan den Rijn, The Netherlands; Germantown, Md.:
Sijthoff & Noordhoff, 1979. ISBN: 902860149X.
4
Ibid, p. 40. Professor Julius Stone – another eminent scholar of
international law – labeled Ruiz’s work “perhaps the most comprehensive
and up-to-date treatise on this matter”.
5
See the Hague Academy of International Law, at:
http://www.ppl.nl/bibliographies/all/showresults.php?bibliography=recueil&keyword1ppn=076252078&keyword=General
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