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On Consensus

Published online by Cambridge University Press:  09 March 2016

Anthony D’Amato
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Extract

Two Phenomena Have Converged in recent years to account for the current interest among international lawyers in the concept of the “consensus” of states. The first is the recognition in jurisprudence that all law, and particularly the international legal system with its lack of centrally organized sanctions, is founded on inductively verifiable psychology and not in deductive principles purportedly derived from God, nature, or reason. If international law is nothing more or less than what states (national decisionmakers and their counsel) think it is, then do not particular rules of international law owe their existence and transmutations to the flow of international consensus?

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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 8 , 1970 , pp. 104 - 122
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Copyright © The Canadian Yearbook of International Law/Annuaire canadien de droit international 1970 

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Footnotes

00

J.D., Harvard 1961; Ph.D., Columbia 1968. Associate Professor of Law, Northwestern University. The author thanks Professor Myres S. McDougal for his kind and helpful criticisms of the draft manuscript.

References

1 In discussing the positivist concept of “consent,” Professor Jaffe wrote that “it is sufficient to the argument (and nearer to the reality) that consent is given to international law as a system rather than to each and every relationship contained in it.” Jaffe, , Judicial Aspects of Foreign Relations 90 (1933)Google Scholar. See D’Amato, , “International Law — Content and Function,” 11 J. Conflict Resolution 504 (1967)CrossRefGoogle Scholar; D’Amato, , “Consent, Estoppel, and Reasonableness: Three Challenges to Universal International Law,” 10 Virginia J. Int’l Law 1 (1969).Google Scholar

2 The Permanent Court of International Justice declared in the Lotus Case that “the rules of law binding upon States … emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law….” P.C.I.J., Ser. A, No. 10, at 18 (1927).

3 Although this is essentially a phenomenological position (cf. Otaka, , Grundlegung der Lehre vom Sozialen Verband (1932)),CrossRefGoogle Scholar phenomenologists are hard put to explain their assertions of the “non-existence” of the objective world of fact. See, for example, Singer, “The Level-of-Analysis Problem in International Relations,” 14 World Politics 77 ( 1961 ); cf. Husserl, , Ideas: General Introduction to Pure Phenomenology (1931)Google Scholar. This argument is reinforced if we view international law as our best and most objective description of how states view international law. This is not necessarily meta-phenomenological, even though it is certainly phenomenological at the state perception level.

4 Horowitz, , “Consensus, Conflict, and Cooperation: a Sociological Inventory,” 41 Social Forces 177 (1962)CrossRefGoogle Scholar.

5 McClosky, , “Consensus and Ideology in American Politics,” 63 American Political Science Rev. 361, 363 (1964).CrossRefGoogle Scholar

6 Approved by G.A. Res. 217A (III).

7 Cheng, , “International Law in the United Nations,” 8 Yearbook of World Affairs 170, 185 (1954).Google Scholar

8 McDougal, & Bebr, , “Human Rights in the United Nations,” 58 Am. J. Int’l L. 603, 614–20 (1964).CrossRefGoogle Scholar

9 How this particular question is resolved is a matter for detailed interpretation in its relevant context. For an interesting though not wholly persuasive view, see Cheng, , “United Nations Resolutions on Outer Space: ‘Instant’ International Customary Law?”, 5 Indian J. Int’l L. 23 (1965)Google Scholar.

10 Murray, (ed.), A New English Dictionary on Historical Principles (1905).Google Scholar

11 Onions, (ed.), The Oxford Dictionary of English Etymology 206 (1966).Google Scholar

12 Webster’s Third New International Dictionary of the English Language Unabridged 482 (1961).

13 Ibid.; see also The Random House Dictionary of the English Language 312 ( 1966 ). This latter work, which is the latest dictionary to appear at the time of the present writing, introduces the idea of “majority of opinion” as a secondary meaning of the term “consensus”: ibid. However, no attempt is made to distinguish between simple majority and unanimity.

14 Wright, , “Custom as a Basis for International Law in the Post-War World,” 2 Texas Int’l L. Forum 147, 158 (1966).Google Scholar

15 Ibid.

16 Lauterpacht, , The Development of International Law by the International Court 191 (1958).Google Scholar

17 Kozhevnikov, (ed.), Mezhdunarodnoye Pravo 42 (1964).Google Scholar

18 Ibid., 32. Emphasis supplied.

19 Supra note 14.

20 At 36–37.

21 At 36.

22 Wright, supra note 14, at 153.

23 Murray, op. cit. supra note 10.

24 See text supra at notes 11–13.

25 Wright, supra note 14, at 153.

26 Ibid., 154.

27 The Fisheries Case, [1951] I.C.J. Rep. 116, is no exception despite the restrictive interpretation given it by many commentators. Although the Court said that “in any event the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast” (p. 131), this statement does not amount to a general rule that any state can avoid an international norm it disagrees with, for three reasons: (1) The overriding rules applied by the Court were applied irrespective of “the will of the coastal State” (Norway) (p. 132). These rules included the prescription that “the drawing of base-lines must not depart to any appreciable extent from the general direction of the coast” (p. 133). It was therefore only within this latter rule of customary law that Norway’s opposition to the ten-mile rule can be construed as effective. (2) The other overriding rules (pp. 132-33) indicate that the special ten-mile rule as against England was a matter of special, or “local,” custom, and not general customary law. The rules of local custom should not be assumed to be the same as those pertaining to general custom, if for no other reason that that general custom would not exist if it were dependent upon the will of individual alleged law-breaking states. See D’Amato, , “The Concept of Special Custom in International Law,” 63 Am. J. Int’l L. 211 (1969)CrossRefGoogle Scholar. (3) In any event, Norway’s opposition to the ten-mile rule was not simply a matter of verbal protestations, but was enforced by Norwegian naval vessels, and thus constituted practice and not simply verbal dissent. This may have been viewed by the Court in a much stronger light for that reason.

28 Supra note 9, at 35–48.

29 Ibid., 36.

30 Ibid.

31 Ibid.

32 Ibid., 37.

33 See, for example, Professor Tucker’s discussion of the “negative effects of custom” in his revision of Kelsen, , Principles of International Law 451, n. 24 (3d ed. 1966).Google Scholar

34 [1966] I.C.J. Rep. 4, 248.

35 Ibid., 290.

36 Listed in 4 South West Africa cases — I.C.J. Pleadings 502, n. 4 (1966).

37 It is important to stress this limitation. For it may make considerable difference if a general rule of law is contained in a convention instead of a resolution. A convention itself binds the parties in addition to serving as a vehicle for consensus, and therefore might be a more powerful source of a rule of universal applicability. The parties to a convention reflect this in the greater care they take in the drafting, knowing that they will be bound by virtue of the treaty itself. They may even refuse to sign a convention (for example, on human rights) that they have no hesitation about subscribing to in the General Assembly in the form of a resolution. Finally, because of its binding power, a convention shapes subsequent state practice whereas a resolution might be negated by subsequent practice in which case we might conclude that the consensus has changed.

38 Abstention might also include absences of non-members of the United Nations who at the time of the resolution issued no national statements presenting a different view of the law. This question of course cannot be resolved conclusively at the present time owing to the absence of state practice on the precise point.

39 Lissitzyn, , International Law Today and Tomorrow 36 (1965).Google Scholar

40 Webster’s New International Dictionary of the English Language 23 (1958).

41 Brierly, , The Law of Nations 53 (5th ed. 1955).Google Scholar

42 Schachter, , “The Relation of Law, Politics and Action in the United Nations,” 109 Recueil des Cours 169, 186 (1963)Google Scholar.

43 See, for example, Bowett, , “Estoppel Before International Tribunals and its Relation to Acquiescence,” 33 Brit. Y.B. Int’l L. 176 (1957)Google Scholar; MacGibbon, , “Estoppel in International Law,” 7 Int’l & Comp. L. Q. 486 (1958).Google Scholar

44 Ser. B, No. 9, at 6, 13 (1924).

45 [1951] I.C.J. Rep. 115, 130, 139.

46 Cf. D’Amato, , “The Neo-Positivist Concept of International Law,” 59 Am. J. Int’l L. 321 (1965).CrossRefGoogle Scholar

47 Supra note 36.

48 Two qualifications must be noted to this statement of the argument. In the first place, the applicants alleged that the resolutions also amounted to a standard binding on South Africa with respect to South West Africa alone because of the requirements of the mandate. Secondly, much of the argumentation concerned the effect of the resolutions as an authoritative interpretation of principles in the United Nations Charter (Articles 1(3), 13(b), 55(c)) 56, 62(2) and 76(c)) and binding on South Africa by virtue of its membership in the United Nations. Of course, the Charter speaks of “respect” for human rights without group distinctions; South Africa argued that its policy of apartheid promotes this respect and brings it to its only possible fruition in the circumstances. The applicants did not choose to contest this statement factually, and therefore argued that apartheid was illegal as a matter of law irrespective of whether it was the best policy factually for the inhabitants of South West Africa. See D’Amato, , “Legal and Political Strategies of the South West Africa Litigation,” 4 Law in Transition Q. 8 (1967).Google Scholar

49 9 South West Africa Cases — I.C.J. Pleadings 344 (1966). Many of the arguments are similar to those used by Judge Alvarez in his individual opinion in the Fisheries case, [1951] I.C.J. Rep. 116, 145. He finds that resolutions constitute an expression of the juridical conscience of peoples and thus should be accorded the status of “new” international law.

50 9 South West Africa Cases — I.C.J. Pleadings 344 (1966).

51 Ibid., 345.

52 Ibid., 634.

53 Ibid., 634–35.

54 Jessup, , A Modern Law of Nations 135 (1952).Google Scholar

55 9 South West Africa Cases — I.C.J. Pleadings 655 (1966).

56 Judge Tanaka would have accepted the consensus argument; see supra (text at note 34). Judge Padilla Nervo appears to have accepted the position, although the indication is weak. He refers in his dissent, [1966] I.C.J. Rep. 441, to “international legal norms and/or standards prohibiting racial discrimination”: ibid., 469, and states that the resolutions “might be considered, in fact, as a manifestation of some of the directives that the Court should apply … ”: ibid., 456.

57 South West Africa, Second Phase, Judgment, [1966] I.C.J. Rep. 4, 323, 441 (dissenting opinion of Judge Jessup).

58 Ibid., 433.

59 Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, [1962] I.C.J. Rep. 151, 214.

60 But there are developmental signs. See Falk, , “On the Quasi-Legislative Competence of the General Assembly,” 60 Am. J. Int’l L. 782 (1966).CrossRefGoogle Scholar