International law, Sixth edition
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International Law MALCOLM N. SHAW
opinio juris requirement could be derived from the circumstances sur-
rounding the adoption and application of a General Assembly resolution. It noted that the relevant opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of the Parties [i.e. the US and Nicaragua] and the attitude of States towards certain General Assembly resolutions, and particularly reso- lution 2625 (XXV) entitled ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accor- dance with the Charter of the United Nations’. 196 The effect of consent to resolutions such as this one ‘may be understood as acceptance of the validity of the rule or set of rules declared by the resolution by themselves’. 197 This comment, however, may well have re- ferred solely to the situation where the resolution in question defines or elucidates an existing treaty (i.e. Charter) commitment. Where the vast majority of states consistently vote for resolutions and declarations on a topic, that amounts to a state practice and a binding rule may very well emerge provided that the requisite opinio juris can be proved. For example, the 1960 Declaration on the Granting of Indepen- dence to Colonial Countries and Peoples, which was adopted with no opposition and only nine abstentions and followed a series of resolutions 195 Some resolutions of a more administrative nature are binding: see e.g. article 17 of the UN Charter. 196 ICJ Reports, 1986, pp. 14, 99–100; 76 ILR, pp. 349, 433–4. 197 ICJ Reports, 1986, p. 100; 76 ILR, p. 434. 116 i n t e r nat i o na l l aw in general and specific terms attacking colonialism and calling for the self-determination of the remaining colonies, has, it would seem, marked the transmutation of the concept of self-determination from a political and moral principle to a legal right and consequent obligation, partic- ularly taken in conjunction with the 1970 Declaration on Principles of International Law. 198 Declarations such as that on the Legal Principles Governing Activities of States in the Exploration and Use of Outer Space (1963) can also be regarded as examples of state practices which are leading to, or have led to, a binding rule of customary law. As well as constituting state practice, it may be possible to use such resolutions as evidence of the existence of or evolution towards an opinio juris without which a custom cannot arise. Apart from that, resolutions can be understood as authoritative interpretations by the Assembly of the various principles of the United Nations Charter depending on the circumstances. 199 Accordingly, such resolutions are able to speed up the process of the legalisation of a state practice and thus enable a speedier adaptation of customary law to the conditions of modern life. The presence of represen- tatives of virtually all of the states of the world in the General Assembly enormously enhances the value of that organ in general political terms and in terms of the generation of state practice that may or may not lead to binding custom. As the International Court noted, for example, in the Nicaragua case, 200 ‘the wording of certain General Assembly declarations adopted by states demonstrates their recognition of the principle of the prohibition of force as definitely a matter of customary international law’. The Court put the issue the following way in the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion: 201 The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain cir- cumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a General Assembly resolution, it is necesary to look at its content and 198 See further below, chapter 5, p. 251. 199 See e.g. O. Schachter, ‘Interpretation of the Charter in the Political Organs of the United Nations’ in Law, States and International Order, 1964, p. 269; R. Higgins, The Development Download 7.77 Mb. Do'stlaringiz bilan baham: |
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