No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 28 March 2017
1 “On the Quasi-Legislative Competence of the General Assembly,” 60 A.J.I.L. 782- 791 (1966). For a more recent, quite elaborate presentation of this position, see “An Argument to Expand the Traditional Sources of International Law—With Special Reference to the Facts of the South West Africa Cases,” in Falk, The Status of Law in International Society 126-173 (1970). The first essay cited is reprinted ibid. at 174.
2 N. G. Onuf, “Professor Falk on the Quasi-Legislative Competence of the General Assembly,” 64 A.J.I.L. 349-355 (1970).
3 A. A. D'Amato, “Manifest Intent and the Generation by Treaty of Customary Rules of International Law,” 64 A.J.I.L. 892-902 (1970).
4 Quoted ibid,at 895. The Court's Judgment isreprinted in 63 A.J.I.L. 591-631 (1969); 8 Int. Legal Materials 340-385 (1969).
5 D'Amato, note 3 above, at 895-898.
6 Ibid,at 898-899.
7 Judgment cited note 4 above, pars. 71, 74.
8 D'Amato, note 3 above, at 898.
9 W. Friedmann, “The North Sea Continental Shelf Cases—A Critique,” 64 A.J.I.L. 229 at 231 (1970).
10 Ibid.But see p. 231, note 6, and p. 234, note 12, in which Friedmann seems to regard custom and general principles as distinct if not easily distinguished sources of law
11 Ibid,at 232-233. See also the careful analysis of R. R. Baxter, “Treaties and Custom,” 129 Hague Academy, Recueil des Cours 57-69 (1970). In his dissenting opinion, Judge ad hocS0rensen expressly adopted the argument of rapidly emerging custom, while candidly admitting that “the word ‘custom’ with its traditional time connotation, may not be an adequate expression for the purpose of describing this particular source of international law.” 8 Int. Legal Materials 422 at 427 (1969).
12 Judgment, note 4 above, at pars. 60-73.
13 This is Friedmann's opinion also, although the Court attempted to create a contrary impression. Friedmann, note 9 above, at 234-236.
14 Falk, “On the Quasi-Legislative Competence of the General Assembly,” note 1 above, at 785-786.
15 Conventionally, writers have accounted for the existence of these characteristics by assuming that the General Assembly was merely restating existing law. See, for example, J. Castaňeda, Legal Effects of United Nations Resolutions 168-171 (1969). While this position eliminates the need to attribute legal effect to resolutions directly, it ignores the fact that the content of many of these resolutions is deliberately innovative and could not possibly have acquired legal effect through the operation of custom. Thus, the position represented by Sr. Castaňeda is little more than a doctrinal artifice to avoid the implications of recent trends.
16 Falk, “On the Quasi-Legislative Competence of the General Assembly,” note 1 above, at 787-790.
17 For a quantitative survey of the citation of earlier General Assembly resolutions in later resolutions, see S. A. Bleicher, “The Legal Significance of Re-Citation of General Assembly Resolutions,” 63 AJ.I.L. 444-478 (1969). While Bleicher viewed re-citation in connection with the traditional sources of international law, he did say (at 477) that the “process of re-citation distinguishes those resolutions which express deeply-held, temporally stable convictions from those which are of only passing or mild concern.“
18 Ibid,at 784-785.
19 Falk was quite explicit about doing this in “An Argument to Expand the Traditional Sources of International Law,” note 1 above, at 153-161.
19a D'Amato has treated the problem of consensus elsewhere: “On Consensus,” 8 Canadian Yearbook of International Law 104-122 (1970). This essay, as well as D'Amato's new book, The Concept of Custom in International Law (1971), were unfortunately not available for consideration during the preparation of the present comment.
20 R. A. Falk, “The New States and the International Legal Order,” 118 Hague Academy, Recueil des Cours 42 (1966).
21 64 A.J.I.L. 349 at 354 (1970).
22 11951] I.C.J. Rep. 116; 46 A.J.I.L. 348 (1952). In reconstructing an argument of Judge Sir Gerald Fitzmaurice, Professor Parry has stated that “it is fairly obvious in practice that a decision often is of considerably more consequence than the Statute of the Court would suggest. Thus, according to the latter, the United Kingdom alone is bound to accept that the extent of Norwegian territorial waters is as indicated by the straight base-line in issue in the Anglo-Norwegian Fisheriescase. But it is unrealistic to maintain that other States would not be similarly bound, or that any State could, after the decision, successfully contest the application of a similar system of admeasurement in similar topographical and economic circumstances.” C. Parry, The Sources and Evidences of International Law 93 (1965).
23 There is an implicit rejection of the radical view in the dissenting opinion of Judge ad “hocSøtrensen, cited note 11 above.
24 8 Int. Legal Materials 398 at 400-403 (Koretsky) and 416 at 419-421 (Lachs) (1969). Both held that Art. 6 of the Continental Shelf Convention was part of general international law. In so arguing, Lachs abjured use of the word “custom,” while Koretsky said the following (at 400): “One may ask whether these principles are or have become an institution of international law either as general principles developed in relation to the continental shelf, or as an embodiment of international custom. There are sufficient grounds for considering them to qualify in both these ways, but I am inclined to consider them as principles of general international law, seeing that established doctrine lays much stress on the time factor as a criterion of whether agiven principle belongs to customary international law: by and large, customary international law turns its face to the past while general international law keeps abreast of the times, conveying a sense of today and the near future by absorbing the basic progressive principles of international law as soon as they are developed.“ Friedmann, note 9 above, at 234, note 12, completely missed the point of these remarks of Koretsky's by taking them to affirm general principles of law recognized by civilized nations as a source of law. Friedmann rightly observed that such a position is highly incongruous for a Socialist legal scholar. On the other hand, affirming the existence of a new source of general norms is quite consistent with the Socialist position on the legal effect of certain General Assembly resolutions and indeed is predictable for all who chafe at the Western dominance of international law.
25 See especially pars. 71-77. Actually, only the one sentence from par. 71 quoted by D'Amato (and above, at p. 775) is unambiguous in its language. It alone hardly gives credibility to D'Amato's claim that “the Court for the first time gave explicit, and indeed overwhelming, substantiation of the thesis that provisions in treaties can generate customary law, that they can be of a ‘norm-creating character.'” D'Amato, note 3 above, at 894-895.
26 Friedmann, note 9 above, at 232. But for a contrary view, see Baxter, note 11 above, at 33.
27 D'Amato, note 3 above, at 901.
28 Although General Assembly Res. 2603A (XXIV), Dec. 16, 1969 (64 A.J.I.L. 393 (1970))”, affirmed that “the Geneva Protocol embodies generally recognized rules of international law,” with no specific mention of their customary character, the Geneva _ Protocol nonetheless fails the test of manifest intent. Widespread reservations stipulating reciprocity as a condition for the Protocol's operation effectively deny a generalizing intent. For details on these reservations, see R. R. Baxter and T. Buergenthal, “Legal Aspects of the Geneva Protocol of 1925,” ibid.869-870.
29 D'Amato, note 3 above, at 898.
30 One exception would be Res. 1653 (XVI), Nov. 28, 1961, declaring against the use of nuclear weapons. Neither the United States nor the Soviet Union voted in favor of this resolution.
31 As the dissenting opinions of Koretsky and Lachs, note 19 above, clearly indicate.
32 Falk, “On the Quasi-Legislative Competence of the General Assembly,” note 1 above, at 788.