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The ICJ’s Advisory Jurisdiction and the Crumbling Wall Between the Political and the Judicial

Published online by Cambridge University Press:  27 February 2017

Michla Pomerance
Michla Pomerance*
Affiliation:
The Hebrew University of Jerusalem
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Extract

It is hardly surprising that the controversial advisor)’ opinion of the International Court of Justice in the case concerning the Israeli security fence raised serious concerns in many quarters, on multiple grounds. Most prominently, as some of the judges and numerous commentators have noted, the restriction of the right of self-defense under Article 51 of the United Nations Charter to attacks by “states” is unwarranted on the basis of the text. It is also, of course, illogical in an era when the worldwide terrorist threats stem primarily from nonstate actors. Additionally, in the current case, while the Court assimilated “Palestine” to a state for the purpose of granting it certain rights (including procedural rights before the Court), the ICJ made no corresponding acknowledgment of Palestine’s obligation to refrain from engaging in an armed attack. This, as Judge Rosalyn Higgins recognized, was “formalism of an unevenhanded sort.”

Type
Agora: ICJ Advisory Opinion on Construction of a Wall in the Occupied Palestinian Territory
Information
American Journal of International Law , Volume 99 , Issue 1 , January 2005 , pp. 26 - 42
Copyright
Copyright © American Society of International Law 2005

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References

1 See, e.g., Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (Int’l Ct. Justice July 9, 2004), 43 ILM 1009 (2004) [hereinafter Advisory Opinion], Declaration of Judge Buergenthal, 43 ILM at 1078, para. 6 [hereinafter Buergenthal Declaration]; id., Separate Opinion of Judge Higgins, 43 ILM at 1058, para. 33 [hereinafter Higgins Opinion].

2 Higgins Opinion, supra note 1, para. 34; see also Buergenthal Declaration, para. 6 (on the Court’s inconsistent attitude regarding the Green Line, cited in note 72 infra).

3 See Pomerance, Michla, The United States and the World Court as a “Supreme Court of The Nations,” ch. 2 (1996) Google Scholar.

4 In 1793 President Washington had sought in vain to elicit an advisory opinion on some twenty-nine questions related to the Citizen Genêt affair and involving the interpretation of U.S. treaties with France. Some U.S. state courts render advisory opinions, but these are not generally surrounded with judicial safeguards and do not usually have the precedential value of judgments.

5 In the Advisory Committee of Jurists, Root had considered that the rendering of advisory opinions with reference to an existing dispute “was a violation of all juridical principles.” 2 League of Nations, Advisory Committee of Jurisre, Procès-Verbaux of the Proceedings of the Committee 584, League of Nations Doc. V. Legal. 1920.

6 John, Bassett Moore, Memorandum of 18 February 1922, 1922 PCIJ (ser. D) No. 2, at 398 Google Scholar. For the full text of the memorandum, see id. at 383-98, reprinted in 5 Collected Papers of John Bassett Moore 329 (1944).

7 See text at notes 12-15 infra (regarding Moore’s concerns as expressed in the memorandum of law that he authored in connection with the 1926 Senate debates on U.S. accession to the PCIJ Statute).

8 Pomerance, Michla, The Advisory Function of the International Court in the League and U.N. Eras 14–24 (1973) Google Scholar.

9 Id. at 219-20. Where unanimity was unattainable, or a less formal and authoritative procedure was preferred, recourse was sometimes had to committees of jurists.

10 Status of Eastern Carelia, 1923 PCIJ (ser. B) No. 5 (July 23). See further pp. 33-35 infra, on the continuing relevance of the “Eastern Carelia” principle, at least with respect to the “propriety” of giving an opinion.

11 Status of Eastern Carelia, supra note 10, at 28. While the Court did not think that “there is an absolute rule that the request for an advisory opinion may not involve some enquiry as to the facts,” it did consider that “under ordinary circumstances, it is certainly expedient that the facts upon which the opinion of the Court is desired should not be in controversy, and it should not be left to the Court itself to ascertain what they are.” Id. On the relevance of the issue of “disputed facts” to the present case, see further infra notes 57-61 and corresponding text.

12 See Memorandum of Law, reprinted in 67 CONG. REC. 2293 (1926) (by all indications, authored by Moore); see also 7 John, Bassett Moore, Collected Papers 8–12 (1944) Google Scholar.

13 Interpretation of Article 3, Paragraph 2, of the Treaty of Lausanne (Frontier Between Turkey and Iraq), Advisory Opinion, 1925 PCIJ (ser. B) No. 12 (Nov. 21).

14 Memorandum of Law, supra note 12, at 2294. In fact, there were essential differences between the two cases. Turkey, though a nonmember of the League, had recognized the Council’s competence not only to consider the dispute but, at least at one stage, to arbitrate it. POMERANCE, supra note 8, at 75-78, 289-90.

15 Memorandum of Law, supra note 12, at 2294. On the fifth Senate reservation and its rejection by the 1926 Conference of Signatories, see POMERANCE, supra note 3, at 101-08.

16 On the relationship between majority voting in the United Nations and the ineffectiveness of some of the ICJ opinions, see 2 Rosenne, Shabtai, The Law and Practice of the International Court 756 (1965) Google Scholar. See generally, on the reception of advisory opinions in the League and UN eras, POMERANCE, supra note 8, ch. 6.

17 Customs Régime Between Austria and Germany, Advisory Opinion, 1931 PCIJ (ser. A/B) No. 41 (Sept. 5).

18 POMERANCE, supra note 3, at 123-28.

19 The committee consisted of experts from eleven states, who served in an unofficial capacity, with Gerald Fitzmaurice acting as secretary. Its report, of February 10,1944, was issued as United Nations, Report of the Informal Inter-Allied Committee on the Future of the Permanent Court of International Justice, 1944, Cmd. 6531, Misc. No. 2, reprinted in 39 AJIL Supp. 1 (1945).

20 Id., para. 65.

21 Id., paras. 69-75, 14, 17.

22 The Court’s refusal to answer the question addressed to it by the World Health Assembly regarding the legality of the use of nuclear weapons in armed conflict was based on the requesting organ’s lack of competence to request the opinion. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 1996 ICJ REP. 66 (July 8). (Besides, the Court had before it the parallel General Assembly request on the same issue.)

23 Report of the Rapporteur of Committee IV/2, Doc. 933, IV/2/42 (2), 13 U.N.C.I.O. Docs. 703, 710 (1945). On the committee discussions and rejection of a Belgian proposal to make the Court the official interpreter of the Charter in case of disagreements between UN organs, see id. at 633-34, 645.

24 On the dual role of the ICJ, as an organ of international law, on the one hand, and as a court of UN law, on the other, and the tension resulting from this bifurcation, see Gross, Leo, The International Court of Justice and the United Nations, 120 Recueil Des Cours 3l4 passim (1967 I) Google Scholar. In the PCIJ period this tension did not emerge, and the UN founders did not anticipate it, since they “could not foresee how profoundly politicized the Organization would become almost from its inception.” The ICJ was “integrated into an Organization which in its day-to-day political activities accords only a marginal place to law.” Id. at 330, 331.

25 Id. at 369.

26 See Pomerance, Michla, Seeking Judicial Legitimation in the Cold War: U.S. Foreign Policy and the World Court, 1948-1962, 5 Ind. Int’L & Comp. L. Rev. 303 (1995) Google Scholar. The pattern started with the Admission case of 1948 and ended with the Certain Expenses case of 1962.

27 POMERANCE, supra note 8, at 148-57.

28 SC Res. 283 (July 29, 1970). See text at note 38 infra on some judicial discomfort with this reversal of roles as between the political and judicial organs of the United Nations.

29 Applicability of the Obligation to Arbitrate Under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, 1988 ICJ REP. 12, 42 (Apr. 26) (Schwebel, J., sep. op.).

30 Stephen, M. Schwebel, Justice in International Law 20 (1994) Google Scholar.

31 Among the score of states urging such actions were all the permanent members of the Security Council (except China), the members of the European Union, Australia, and Canada. The extent of discomfort with the decision to ask for an opinion was also reflected in the vote in the Assembly on the requesting resolution (90-8- 74)—an unusual number of nays and abstentions for an anti-Israel resolution.

32 Advisory Opinion, supra note 1, Separate Opinion of Judge Kooijmans, 43 ILM at 1065, paras. 25, 26 [hereinafter Kooijmans Opinion]. The term “legally neutral” had been used by Judge Dillard in the Namibia case. Legal Consequences for States of the Continued Presence of South Africa in Namibia Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 ICJ REP. 16, 151 (June 21) [hereinafter Namibia] (Dillard, J., sep. op.).

33 This omission was among the reasons noted by the U.S. representative, James Cunningham, in explaining U.S. objections to the “unbalanced” text presented to the Assembly. UN Press Release GA/10216 (Dec. 2003), available at <http://www.un.org/News/Press/docs/2003/gal0216.doc.htm>.

34 See infra part IV.

35 In Resolution ES-10/13 of October 21, 2003, the Assembly “demands” that Israel “stop and reverse the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem, which is in departure of the Armistice Line of 1949 and is in contradiction to relevant provisions of international law” (emphasis added).

36 GA Res. ES-10/14 (Dec. 10, 2003) (emphasis added), quoted in Advisory Opinion, supra note 1, para. 1.

37 On the inappropriateness of the Namibia analogy, see Higgins Opinion, supra note 1, paras. 2-7; Advisory Opinion, supra note 1, Separate Opinion of Judge Owada, 43ILM at 1091,paras. 10-11 [hereinafter Owada Opinion]. And for further elaboration regarding the inapt nature of the Court’s analogies, see my forthcoming article, A Court of “UN Law,” 38 ISR. L. REV. (forthcoming 2005).

38 Namibia, supra note 32, 1971 ICJ REP. at 127; see also Kooijmans Opinion, supra note 32, paras. 22-23 (referring to it in connection with the present case); Higgins Opinion, supra note 1, para. 12 (noting that the Assembly’s objective in the present case, unlike that in Western Sahara, infra note 40, was to employ the Court’s opinion in order to exercise powers over the dispute between the contending parties).

39 Advisory Opinion, supra note 1, para. 163(2)(E) (emphasis added).

40 Id., paras. 36-41, 51-54 and cases there cited. Yet, as Judge Dillard observed, in the context of the Western Sahara case (one of the cases prominently cited in the present case), “[t]he notion that a legal question is simply one that invites an answer ‘based on law’ appears to be question-begging and it derives no added authority by virtue of being frequently repeated.” Western Sahara, Advisory Opinion, 1975 ICJ REP. 12, 117 (Oct. 16) (Dillard, J., sep. op.).

41 “While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.” UN CHARTER Art. 12(1).

42 Advisory Opinion, supra note 1, paras. 24-35.

43 See supra note 23 and corresponding text.

44 Certain Expenses of the United Nations, Advisory Opinion, 1962 ICJ REP. 151,196-97 (July 20). On policy grounds, one might also question whether in the post-Cold War context, the Uniting for Peace Resolution might not have outlived its raison d’être, whether its use today might retard more than promote peace, and whether, consequently, it should not be more restrictively interpreted and applied.

45 Advisory Opinion, supra note 1, para. 47 (quoting Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (First Phase), Advisory Opinion, 1950 ICJ REP. 65, 71 (Mar. 30)). But compare the dissenting opinions of Judges Winiarski and Zoričić, viewing the advisory opinion as akin to an unenforceable judgment, and asserting the continuing relevance of the issue of consent. 1950 ICJ REP. at 89-97, 98-104 (Winiarski & Zoričić, JJ., dissenting, respectively).

46 Advisory Opinion, supra note 1, para. 47 (quoting Western Sahara, supra note 40, 1975 ICJ REP. at 25, para. 33).

47 Western Sahara, supra note 40, 1975 ICJ REP. at 25, para. 34. On the inconsistency of this statement with the consent to approve a judge ad hoc for Morocco, see the comments of Judge Gros in his declaration, id. at 71, 74.

48 See text at note 2 supra and note 67 infra.

49 Compare, in this regard, the observations of Judge Higgins, that “[t]here is . . . a dispute between two international actors, and the advisory opinion request bears upon one element of it.” Higgins Opinion, supra note 1, para. 7.

50 Advisory Opinion, supra note 1, para. 48 (citing also the pronouncement in the Namibia case). It should be noted, however, that in that case the Court’s felt need to emphasize its “nondispute” character was linked to the question of the Court’s competence, since South Africa had not been invited to participate in the Council proceedings as “a party to a dispute,” in contravention of Article 32 of the Charter. Several judges supported a thesis of “residual discretion” on the basis of Article 68 of the Court’s Statute, which would have offered a way out of the dilemma by allowing the matter to be viewed as a UN-South Africa dispute and permitted South Africa to appoint a judge ad hoc; but the thesis was not supported by the Court. See Pomerance, Michla, The Admission of Judges Ad Hoc in Advisory Proceedings: Some Reflections in the Light of the Namibia Case, 67 AJIL 446 (1973) CrossRefGoogle Scholar.

51 See, e.g., Owada Opinion, supra note 37, para. 11; see also note 50 supra.

52 Western Sahara, supra note 40, 1975 ICJ REP. at 27-28, paras. 42-43.

53 See text following note 71 infra.

54 See Stone, Julius, Israel and Palestine: Assault on the Law of Nations 65,101,127–28 (1981) Google Scholar; Slonim, Shlomo, Jerusalem in America’s Foreign Policy 1947-1997, at 212–17 (1998) Google Scholar.

55 Advisory Opinion, supra note 1, para. 49.

56 On the UN double standard in Israel-related matters, see especially Bayefsky, nne, The UN World Conference Against Racism: A Racist Anti-Racism Conference, 96 ASIL Proc. 65, 71–74 (2002) Google Scholar; Thomas, M. Franck, Of Gnats and Camels: Is There a Double Standard at the United Nations? 78 AJIL 811, 824–25 (1984) Google Scholar; Bayefsky, Anne, One Small Step, Wall St. J. Opinion Journal (June 21, 2004) Google Scholar, at <http://www.opmionjournal.com/extra/?id?=110005245>.

57 Western Sahara, supra note 40, 1975 ICJ REP. at 28-29, paras. 46-47.

58 Buergenthal Declaration, supra note 1, para. 1.

59 Id.,para. 3.

60 Id. In fact, it has been justifiably observed, the secretary-general’s report detailed “the purported harm to Palestinians without describing one terrorist act against Israelis which preceded the fence’s construction.” Bayefsky, One Small Step, supra note 56. And as for John Dugard, the rapporteur so extensively cited, he has not been considered by Israel to be an objective, evenhanded observer.

61 Buergenthal Declaration, supra note 1, para. 3; see also text at note 63 infra (Buergenthal’s criticism of the Court’s deficient reasoning and failure to use the materials before it adequately).

62 See infra notes 85-86 and corresponding text (concerning the force of Security Council resolutions and misconceptions regarding this issue).

63 Buergenthal Declaration, supra note 1, para. 7.

64 For more extensive discussion of the Court’s handling of the facts and law on the merits, see my forthcoming article in the Israel Law Review, supra note 37.

65 Higgins Opinion, supra note 1, para. 16.

66 Advisory Opinion, supra note 1, para. 162, quoted in Higgins Opinion, supra note 1, para. 18. And see her reference, id., para. 18, to the “huge imbalance” that had remained.

67 Higgins Opinion, supra note 1, para. 34.

68 Id., para. 30. On this point, see also Kooijmans Opinion, supra note 32, para. 32.

69 See generally Pomerance, Michia, Self-Determination in Law and Practice (1982) Google Scholar.

70 Schwarzenberger, Georg, Terrorists, Hijackers, Guerrilleros and Mercenaries, 24 Current Legal Probs. 257, 282 (1971) Google Scholar, quoted in Burmester, H. C. , The Recruitment and Use of Mercenaries in Armed Conflict, 72 AJIL 37, 55 n.82(1978) Google Scholar.

71 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986ICJ REP. 14,273, para. 16 (June 27) (Schwebel, J., dissenting) (referring to the Judgment, id. at 108, para. 206).

72 See the comment by Judge Buergenthal that “to the extent that the Green Line is accepted by the Court as delimiting the dividing line between Israel and the Occupied Palestinian Territory, to that extent the territory from which the attacks originate is not part of Israel proper”; and that the “Court’s formalistic approach to the right of self-defence enables it to avoid addressing the very issues that are at the heart of this case.” Buergenthal Declaration, supra note 1, para. 6. For Security Council Resolution 1373 (Sept. 28, 2001), see 40 ILM 1278 (2001).

73 Advisory Opinion, supra note 1, paras. 74, 87.

74 As noted by Elihu Lauterpacht, “territorial change cannot properly take place as a result of the unlawful use of force. But to omit the word ‘unlawful’ is to change the substantive content of the rule and to turn an important safeguard of legal principle into an aggressor’s charter.” Elihu Lauterpacht, Jerusalem and the Holy Places 52 (1968); see also Stone, Julius, Conflict Through Consensus 58–63,126 (1977) Google Scholar; Stephen, M. Schwebel, What Weight to Conquest? 64 AJIL 334 (1970) Google Scholar.

75 See, for example, Eugene, V. Rostow (who was intimately involved in the negotiations on the wording of the resolution), Legal Aspects in the Search for Peace in the Middle East, 64 ASIL Proc. 64, 68–69 (1970) Google Scholar; and the attitude of the United Kingdom representative, Lord Caradon (sponsor of the resolution), cited in STONE, supra note 74, at 57-60, 63. For Security Council Resolution 242 (Nov. 22, 1967), see 62 AJIL 482 (1968).

76 STONE, supra note 74, at 61. For the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations, General Assembly Resolution 2625 (XXV) (Oct. 24, 1970), see 65 AJIL 243 (1971). 77 GA Res. 3314 (XXIX) (Dec. 14, 1974), 69 AJIL 480 (1975) (emphasis added).

78 STONE, supra note 74, at 126. Another Egyptian suggestion in like vein was also rebuffed. Stone concluded that the outcome represented “one of the few clear legal outcomes,” but that the principle was clear in any case. Id.

79 Office of Legal Affairs, Legal Memorandum, UN Doc. E/CN.4/L.610, para. 4 (1962) (emphasis added); see also International Organizations, 1975 DIGEST §4, at 85 (statement of deputy legal adviser of the Department of State); Stephen, M. Schwebel, The Effect of Resolutions of the U.N. General Assembly on Customary International Law, 73 ASIL Proc. 306 (1979) Google Scholar.

80 Fitzmaurice, Gerald, Hersch Lauterpacht: The Scholar as Judge, Part II, 1962 Brit. Y.B. Int’L L. 1, 8 Google Scholar.

81 Gaetano, Arangio-Ruiz, The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations, 137 Recueil Des Cours 419, 476 (1972 III) Google Scholar. Indeed, as Judge Schwebel noted in the Nuclear Weapons case, the repetition of Assembly resolutions “is a mark of ineffectuality in law formation as it is in practical effect.” Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ REP. 226, 319-20 (July 8) (Schwebel, J., dissenting).

82 See, in this respect, the comment by Leo Gross that “in view of die trend towards boundless and unprincipled majoritarianism in the Assembly, one cannot insist too strongly on the recommendatory nature of all Assembly resolutions other than those which by the Charter are endowed with legally binding effect.” Leo Gross, Conclusions, in 2 The Future of the International Court of Justice 727,754 (Leo Gross ed., 1976). See also Schwebel’s remark that “in its later development, consensus at times has been used as a way of submerging Western objections to the objectionable. If any defense can be made of such a result in the political and economic sphere, in the legal sphere it is the less defensible.” Schwebel, supra note 79, at 309.

83 For the Court’s expansive use of the erga omnes concept, see Advisory Opinion, supra note 1, paras. 155-59; and see the reservations in Higgins Opinion, supra note 1, paras. 37-39. For an early critique of the kind of approach reflected in the present opinion, see Weil, Prosper, Towards Relative Normativity in International Law? 77 AJIL 413 (1983) CrossRefGoogle Scholar.

84 Though the Court, in its reasoning, attributed binding force to resolutions based on their wording, see Namibia, supra note 32, 1971 ICJ REP. at 51-54, the Council itself was unwilling to endorse this part of the Court’s opinion. POMERANCE, supra note 8, at 352-54. Resolution 242 itself was adopted under Chapter VI at the time, and became binding on the parties with their acceptance; but Israel’s acceptance was definitely not to the Arab interpretation regarding total withdrawal from the territories.

85 Namibia, supra note 32, 1971 ICJ REP. at 294 (Fitzmaurice, J., dissenting).

86 That lack of judicial restraint might lead to a diminution in the willingness of states to accept general optional clause jurisdiction was demonstrated by the U.S. reaction to the Nicaragua case. A similar reassessment of compromissory clauses in treaties (such as was threatened by the United States post-Nicaragua but not implemented) might well be induced by the manner in which the Court handled use-of-force issues in the Oil Platforms case. See the fears expressed by Judges Buergenthal and Kooijmans in that case, Oil Platforms (Iran v. U.S.), Merits, 2003 ICJ REP. 161 (Nov. 6), 42 ILM 1334 (2003), Separate Opinion of Judge Buergenthal, 42 ILM at 1404, para. 22; Separate Opinion of Judge Kooijmans, 42 ILM at 1391, para. 35. It should be noted that the Court unnecessarily, and with questionable authority at best, pronounced itself on the Charter principles regarding the use of force. Vigorous dissents on the Court’s decision to proceed in this manner were voiced by Judges Buergenthal, Higgins, and Owada, and to an extent, also by Judge Kooijmans. On the U.S. reaction to the Court’s dicta, see the memorandum by the U.S. Department of State legal adviser, William H. Taft IV, as excerpted in 98 AJIL 598 (2004). On the adverse effect on the Court of its “absence of a developed jurisprudence of judicial restraint” in matters bearing on the use of force, see American Society of International Law, Report of the Special Working Committee on the Optional Clause 10, 18 (Oct. 1990). See also, especially, the statement by Richard Gardner, that “it is simply not realistic in the present state of international relations to expect nations to accept decisions of an international tribunal on the legality of their behavior in armed conflicts in which they are or have been involved.” U.S. Decision to Withdraw from the International Court of Justice: Hearing Before the Subcomm. on Human Rights and International Organization of the House Comm. on Foreign Affairs, 99th Cong. 115 (1985) Google Scholar. And see the State Department statement, in text at note 93 infra.

87 Falk, Richard, Reviving The World Court 32 n. 10 (1986) Google Scholar.

88 See supra text at note 21.

89 See, in this respect, the observation by Michael Reisman in 1986 that, following the 1966 South West Africa Cases and die trauma that the decision induced in the General Assembly, “[t]he Court appears to have sensed that its major constituency had become the transformed General Assembly, both for election of its members and for budget purposes.” Reisman, W. Michael , Termination of the United States Declaration Under Article 36(2) of the Statute of the international Court, in The United States and the Compulsory Jurisdiction of the International Court of Justice 71, 89 (Anthony, Clark Arend ed., 1986)Google Scholar. And, as Abraham Sofaer, State Department legal adviser at the time of the Nicaragua case, noted: “The ICJ has judges of independence and distinction. States must assume, however, in matters substantially affecting their interests, that ICJ judges are human, the creatures of their pasts and places, who cannot be immune to the increasing role of politics in their elections.” Abraham, D. Sofaer, Adjudication in the International Court of Justice: Progress Through Realism [Coudert Lecture], 44 A.B.N.Y.C. Rec. 462, 480–81 (1989) Google Scholar. See generally Davis, R. Robinson, The Role of Politics in the Election and the Work of Judges of the International Court of Justice, 97 ASIL Proc. 277–82 (2003) Google Scholar. And see, with respect to the Assembly’s determination, after 1966, to ensure election of a bench that would reflect that organ’s desires, Gross, supra note 24, at 324-25; Slonim, Solomon, South West Africa and the United Nations 330–31 (1973) Google Scholar; and the representative sample in the Namibia case of statements by Assembly delegates, excerpted in Written Statement of South Africa, Annex A, 1971 ICJ Pleadings (1 Namibia) 451-73.

90 Gross, supra note 24, at 320-21.

91 Gross, supra note 82, at 754.

92 Thus, Judge Philip Jessup stated in his dissent that since the General Assembly and the ILO “lack a true legislative character, their resolutions alone cannot create law” and “the literature on this point is abundant.” South West Africa (Eth. v. S. Afr.; Liberia v. S. Air.), Second Phase, 1966 ICJ REP. 6,432 & n.2 (July 18) (Jessup, J., dissenting). Even Judge Tanaka stated only that “parliamentary diplomacy” through international organizations was “bound to influence the mode of generation of customary international law” and to facilitate and accelerate its formation. Id. at 291 (Tanaka, J., dissenting). As Rosalyn Higgins observed, there was no suggestion that “the mere existence of a resolution obviated the need for” the usual requirements for law creation: practice, repetition, and opinio juris. Higgins, Rosalyn, The Role of Resolutions of International Organizations in the Process of Creating Norms in the International System, in International Law and the International System 21,22 (Butler, W. E. ed., 1987)Google Scholar. After 1966, see supra note 89, the Assembly set about consciously to alter the composition of the Court in order to bring it into greater alignment with the views of the Assembly’s majority.

93 U.S. Dep’t of State, US Withdrawal from the Proceedings Initiated by Nicaragua in the International Court of Justice (Jan. 18, 1985), 24 ILM 246, 248 (1985), excerpted in 79 AJIL 438, 441 (1985).

94 Lauterpacht, Hersch, The Development of International Law by the International Court 76 (1958) Google Scholar.