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Recognition, Use of Force, and the Legal Effect of United Nations Resolutions under the Revised Restatement of the Foreign Relations Law of the United States
Published online by Cambridge University Press: 16 February 2016
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The prestigious American Law Institute is in the process of promulgating a revised Restatement of the Foreign Relations Law of the United States. The present Restatement on the subject was adopted in 1962 and finally promulgated with revisions in 1965. Work on a revised restatement began in the late 1970s and the first tentative draft was submitted to the Institute in 1980. Thus far, five tentative drafts have been presented to the members of the Institute for their consideration and the Restatement as a whole is scheduled for consideration by the members of the Institute at its annual meeting in May 1985.
The American Law Institute is a private organization of jurists, not a legislative body, and the Restatements are not official codifications. However, since the Institute membership includes some of the most noted scholars, judges and practitioners in the United States, the Restatements carry great weight and are often cited by United States courts in their decisions.
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References
1 See the American Law Institute, Restatement of the Law, Foreign Relations Law of the United States (Revised) [hereinafter, Restatement], Tentative Draft No, 1, p. xii (1980).
2 The work was begun under the direction of the late Richard B. Baxter as Chief Reporter. Upon his appointment to the International Court of Justice, Louis Henkin became the Chief Reporter. The associate Reporters are Andreas F. Lowenfeld, Louis B. Sohn and Detlev F. Vagts.
3 Statute of the International Court of Justice, Article 38, quoted infra n. 59. The Restatement itself notes that this includes,
treatises and other writings of authors of standing, resolutions of scholarly bodies, such as the Institute of International Law (L'Institut de Droit International) and the International Law Comission, national codifications of international law such as this Restatement. §103, Reporters' Note 1 (emphasis added).
4 For a discussion of whether Restatements should state what the law is or what it ought to be, see Wechsler, , “The Course of the Restatements”, (1969) 55 A.B.A.J. 147Google Scholar. For the approach adopted by the Restatement for determining rules of international law see text accompanying nn. 5–8 and n. 8 infra.
5 Restatement, Tentative Draft No. 5, p. 1 (1984).
6 Ibid.
7 Ibid.
8 Whether a Restatement of United States Foreign Relations Law should give what it believes to be the rule that an international tribunal would apply—assuming that can be ascertained—rather than the United States position on the rule, is debatable. Several members of the Institute expressed disagreement with this approach, when the tentative draft was discussed at the annual meeting. See ALI, 1984 Proceeding. Interestingly, in another context, the Reporters' Notes refer to the Restatement as “a national codification of international law”. See § 103 Reporters' Note 1, quoted supra, n. 3.
9 The executive has broad powers in the conduct of United States foreign affairs. See United States v. Curtiss Wright Export Corp., 299 U.S. 304 (1936). See generally, Henkin, , Foreign Affairs and the Constitution, (1972) 37–65Google Scholar. Justice Marshall's early characterization of the President as “the sole organ of the nation in its external relations and its sole representative with foreign nations”, (1800) 10 Annals of Congress 613, has been often quoted. The Supreme Court has generally deferred to the executive on questions involving foreign affairs, see e.g., Ex Parte Republic of Peru, 318 U.S. 578 (1943), Republic of Mexico v. Hoffman, 324 U.S. 30 (1945). One of the reasons given by the Court in Banco National de Cuba v. Sabbatino, 376 U.S. 398 (1964), for its refusal to apply international law was that judicial interpretation of rules of international law might differ from that of the executive, thereby embarrassing the executive in its conduct of foreign affairs. Given the executive's “pre-eminence” in the conduct of foreign affairs, see Henkin, supra, at 38, it would seem more appropriate that where there are differing views of what the correct rule of international law is, the Restatement of the Foreign Relations Law of the United States adopt the position of the executive, rather than the Institute's view of what an international tribunal would do, at least where the International Court of Justice has not ruled on the question.
In addition to being inconsistent with the broad authority accorded to the executive in foreign affairs and with the title of the Restatement (Restatement of the Foreign Relations Law of the United States, not Restatement of principles of International Law), the formula suggested by the Restatement also injects unneccessary ambiguity. Where there are differing positions on what the international law is on a question, as for example, whether prompt and adequate compensation is required when private property of aliens is nationalized, it is impossible to determine what an international tribunal would do, whereas the executive position on the matter is often clear.
10 These are, of course, not the only provisions subject to challenge on the ground that they do not accurately reflect international law, United States law, or both. Members of the Institute voiced strong objections to a number of other provisions on these grounds, e.g., §135 (dealing with the effect of rules of customary international law on treaties and United States statutes), §428 (dealing with United States enforcement of foreign acts of state that violate international law), §712 (dealing with expropriation by a state of a foreigner's property).
11 Sec. 201 provides: “Under international law, a ‘state’ is an entity which has a defined territory and permanent population, under the control of a government, and which engages in, or has the capacity to engage in, formal relations with other such entities”. Tentative Draft No. 2 (1981).
12 Id. § 202(2) (1981).
13 Id. Comment (e).
14 Id.
15 Tentative Draft No. 2 § 202, Reporters' Note 6.
16 The Reporters' Note states, “that principle has been universally accepted as regards territory conquered by use of force in violation of the U.N. Charter. It is, however, disputed as to territory acquired by use of force which was not unlawful, for example, if a victim of aggression, acting in self-defense in accordance with article 51 of the Charter, conquers territory of the aggressor and proceeds to annex it”.
Tentative Draft No. 2 § 202, Reporters' Note 6.
17 G. A. Res. 2625 (xxv), G.A.O.R. 25th Sess. Supp 28 (A/2028) p. 121, reprinted in (1971) 65 Am. J. Int'l L. 243CrossRefGoogle Scholar. For an analysis of the legal effect of General Assembly resolutions in general and the Declaration on Principles of Friendly Relations see, Arangio-Ruiz, , “The Normative Role of the General Assembly of the United Nations and the Declaration of (sic) Principles of Friendly Relations”, (1972) 137 Recueil Des Cours Vol. III, p. 419Google Scholar.
18 The resolution, and more specifically, the paragraph containing the sentence quoted in the Reporters' Notes (but not the sentence quoted) does refer to use of force in violation of the Charter. The paragraph in full reads,
The territory of a state shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter. The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal. Nothing in the foregoing shall be construed as affecting:
(a) Provisions of the Charter or any international agreement prior to the Charter regime and valid under international law; or
(b) The powers of the Security Council under the Charter.
(1971) 65 Am. J. Int'l L. 246–47CrossRefGoogle Scholar (emphasis added).
For the position that even the Declaration preserves the “distinction between lawful use of force and unlawful use of force” and does not apply to use of force in self-defense, see, Stone infra n. 32 at 52.
19 For a discussion of the legal effect of General Assembly Resolutions, see part III.
20 See e.g., Schwartzenberger, , A Manual of International Law (5th ed., 1967) 55Google Scholar; Montevideo Convention on Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097, T.S. 881, 165 L.N.T.S. 19.
21 See supra, n. 11.
22 “If old roots of title are to be dug up and examined against the contemporary rather than the intertemporal law there can be few titles that will escape without question”. Jennings, , The Acquisition of Territory in International Law (1963) 53Google Scholar.
23 id., at 8, quoting Oppenheim, (8th ed., by Lauterpacht) Vol. 1, p. 544 (emphasis added by Jennings).
24 id., at 8.
25 Id., at 54 (emphasis added).
26 Brownlie, , International Law and the Use of Force by States (1963) 418–19 (emphasis added)CrossRefGoogle Scholar.
27 He says: “The possibility of ‘de facto recognition’ of control over territory which has its source in illegality is not to be regarded with distaste, and the British and American practice of distinguishing the legality of the origin and the fact of control is sensible”. Id., at 420–21. The Restatement rejects this distinction. While it has decided to avoid the terms “de jure” and “de facto” recognition, see Tentative Draft No. 2, § 202, Reporters' Note 1, it specifically provides that a State is required “not to recognize or treat as a state” an entity that has attained statehood in violation of international law.
28 Tentative Draft No. 2, Sec. 202, Reporters' Note 5.
29 Id.
30 Israel, of course, did not come into existence by the use of force in violation of the United Nations Charter. Quite the contrary, it was established pursuant to a resolution of the General Assembly. Its use of force was in response to an attack upon it by several Arab States at the moment of its establishment and was thus indisputedly in self-defense. Yet, the Ara b States and their supporters claim that the very existence of Israel is illegal, “an ‘armed attack’ on the sovereignty of Palestine”.
This position is eloquently summarized—and rejected— by Rostow. H e states:
For more than thirty years the Security Council, speaking for the organized international community, has insisted that Israel is a legitimate state, born of the Mandate, and that members of the United Nations are therefore legally and morally bound to make peace with it in accordance with the terms of the Mandate and of the Security Council Resolutions which apply them. Throughout this period, a shifting but important group of States, strongly backed by the Soviet Union, has asserted that the Mandate and all that flowed from it was illegal, and that the existence of Israel is in itself an aggression against the sovereignty of the Palestinian people.
Rostow, , Palestinian Self-Determination: Possible Futures for the Unallocated Territories of the Palestine Mandate, (Yale Studies in World Public Order, 1979) Vol. 5, p. 167 at 170–171Google Scholar. But see Wright, , “The Middle East Problem”, (1970) 64 Am. J. Int'l L. 270, 271Google Scholar. Wright stated, “The General Assembly resolution of November 29, 1947, partitioning Palestine and establishing the State of Israel as demanded by Zionists is difficult to reconcile with this principle [the inadmissibility of the acquisition of territory by war]”.
31 Jennings, supra n. 22, at 55–56.
32 Stone, , Israel and Palestine: Assault on the Law of Nations (1981) 52Google Scholar.
33 Lauterpacht, , Jerusalem and the Holy Places (1968) 51–52Google Scholar.
34 Schwebel, , “What Weight to Conquest?” (1970) 64 Am. J. Int'l L. 344, 345CrossRefGoogle Scholar.
But see Wright, supra n. 30 at 270. He argues that the inadmissibility of acquisition of territory by war means “there shall be no territorial fruits from war”, and its application “does not depend on determining who was the ‘aggressor’.”
35 Schwebel, supra n. 34 at 345–6. And see Blum, , “The Missing Reversioner: Reflections on the Status of Judea and Samaria” (1968) 3 Is.L.R. 279CrossRefGoogle Scholar.
36 See supra n. 18.
37 See Part III infra; See also Arangio-Ruiz, supra n. 17.
38 Tentative Draft No. 2, § 202, Reporters' Note 6. Th e proposition that international law requires states to do (or not to do) something, but that most states haven't accepted the principle as stated seems a contradiction in terms.
39 The Introductory Note to Part IX contains a similar ambiguity. It states, “international law requires states to refrain from recognizing territorial changes resulting from … aggression”. Tentative Draft No. 5, p. 158. When the draft was considered by the Institute, this writer noted that the phrase “territorial change” was ambiguous, and that she assumed what was meant was territorial gain by the aggressor. Professor Henkin, Th e Chief Reporter, stated that that was correct and that the language would be revised to make it clearer. See ALI proceedings, 1984. This was later confirmed in a letter from Henkin to the writer.
40 For a summary of the events preceding the 1967 war, establishing that Israel acted in self-defense, see, e.g. Lauterpacht, supra n. 33 at 346.
41 Falk, , “Reply to Professor Julius Stone”, (1970) 64 Am. J. Int'l L. 162, 163CrossRefGoogle Scholar.
42 Higgins, , “The Place of International Law in the Settlement of Disputes by the Security Council”, (1970) 64 Am. J. Int'l L. 1, 8CrossRefGoogle Scholar (“until such time as the Arab nations agree to negotiate a peace treaty, Israel is in legal terms entitled to remain in the territories she now holds”).
43 See supra n. 33 at 46.
44 See supra n. 30 at 161.
45 See supra n. 34 at 346–47.
46 Rostow, supra n. 30 at 161.
47 Id.
48 Schwebel, supra n. 34 at 346.
49 Lauterpacht, supra n. 33 at 47.
50 Wright, supra n. 30 at 270. Wright questions not only the legality of Israel's presence in the territories it conquered in 1967, but the legality of its establishment. See supra n. 30.
51 See supra n. 39.
52 See supra, n. 18.
53 Restatement, Tentative Draft No. 1, Sec. 103. For a discussion of that provision, see part III infra.
54 See supra n. 18.
55 Restatement of the Foreign Relations Law of the United States, Tent. Draft No. 1, §103 (1980).
56 See § 103, Reporters' Note 2 (emphasis added).
57 See id. After referring to “the universal character of these organizations”, the Reporters' Note continues “[i]f such a resolution is adopted by an overwhelming majority, and the General Assembly continues to reaffirm the resolution, … ” and all the resolutions cited are resolutions of the General Assembly. Reporters' Note 2 (emphasis added). This paper deals only with the provision insofar as it is intended to apply to resolutions of the General Assembly. The legal effect to be accorded to resolutions of other organizations would, of course, depend on their constitutive instruments. It is clear, however, that the Restatement was not dealing here with resolutions of bodies that have law-making authority under their constitutive instruments since these are discussed in the section dealing with sources of international law. See §102, Comment (g).
58 § 103, Comment (c).
59 Article 38 of the Statute of the International Court of Justice provides:
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognized b y civilized nations;
(d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
The Reporters' Notes, while acknowledging that Article 38(1)(d) of the Statute of the International Court of Justice “does not include resolutions of international organizations among the ‘subsidiary means for the determination of rules of law’,” argues that “nevertheless.. such resolutions may provide important evidence of law”. The Reporters' Notes continue:
A resolution declaring the law is probative evidence of what the states voting for the resolution regard as the state of international law. If such a resolution is adopted by an overwhelming majority, and the General Assembly continues to reaffirm the resolution, the evidence that it reflects the law is strengthened.
§ 103 Reporters' Note 2.
60 See 9 UNCIO Doc. 316 (1945). See also Stone, Israel, the United Nations and International Law, Memorandum of Law, UN Doc. A/35/3/6 S14045 Annex, p. 5. (July, 1980). Arangio-Ruiz, supra n. 17 at 447; Russel, , A History of the United Nations Charter, (1958) 154, 754–776Google Scholar.
61 See Arangio-Ruiz, supra n. 17 at 504, n 83 and accompanying text.
62 See Stone, supra n. 60.
63 Id.
64 Schwebel, , The Effects of Resolutions of the U.N. General Assembly on Customary International Law, Proceedings, Am. Soc. Int. L. (1979) 301Google Scholar. For a discussion of the views of various publicists, see Johnson, , “The Effect of Resolutions of the General Assembly of the United Nations”, (1955–1956) 32 Br. Year Book Int. L. 91Google Scholar; Arangio-Ruiz, supra n. 17.
65 Stone, supra n. 60. For a comprehensive discussion and analysis of Lauterpacht's views on the legal effect of resolutions of the General Assembly, see Fitzmaurice, , “Hersch Lauterpacht—The Scholar as Judge”, Part II, (1962) 38 Br. Year Book Int. L. 1 at 2–12Google Scholar.
66 Judge Fitzmaurice stressed that the General Assembly is “only empowered to discuss and recommend” and that a resolution “whatever it may be and however the relevant resolution is worded, can only operate as a recommendation”. Namibia Case, [1971] I.C.J. Reports 16, pp. 280–281 (emphasis in original). Judge Jessup wrote,
at times the argument of Applicants seemed to suggest that the so-called norm of non-discrimination had become a rule of international law through reiterated statements in resolutions of the General Assembly, of the International Labour Organization, and of other international bodies. Such a contention would be open to attack … [S]ince these international bodies lack a true legislative character, their resolutions alone cannot create law.
The South West Africa Case [1966] I.C.J. Reports 4, p. 432 (dissenting opinion of Judge Jessup) (emphasis added). In a footnote he added, “the literature on this point is abundant”. See also, id. at 169–170 (separate opinion of ad hoc Judge Van Wyk). But see id. at 291–293 (dissenting opinion of Judge Tanaka).
67 G.A. Res. 3281 (xxxix) (1974).
68 Texas Overseas Petroleum v. Libyan Arab Republic, reprinted in (1978) 17 Int'l Legal Materials 1–37.
69 See e.g. Arangio-Ruiz, supra n. 17.
70 See Falk, , “On the Quasi-Legislative Competence of the General Assembly” (1966) 60 Am. J. Int'l L. 782CrossRefGoogle Scholar; Schachter, , “The Evolving International Law of Development”, (1971) 15 Colum J. Transnat. L. 1Google Scholar. See also Schachter, , “The Quasi-Judicial Roles of the General Assembly and Security Council”, (1964) 58 Am. J. Int'l L. 960CrossRefGoogle Scholar.
71 Arangio-Ruiz, supra n. 17 at 434–35. He discusses, inter alia, the views of Gross, McWhinney, Parry, Friedmann, Sorensen, Higgins, id., at 435–38, 475.
72 Higgins, , The Development of International Law through the Political Organs of the United Nations (1963) at 2Google Scholar.
73 Id., at 1–2 (emphasis added).
74 Id., at 7. (emphasis added). Indeed, the underlying premise of her book is that resolutions of the political organs of the United Nations provide evidence of international law because (notwithstanding a general belief to the contrary, see id., at 7-8) most are consistent with traditional international law. She attempts to substantiate this in each of the areas studied. For example, she states in her conclusion concerning the concept of statehood in United Nations practice,
The real significance of a discussion of the concept of statehood in United Nations practice can be seen by examining the interaction between two viewpoints which have been advocated throughout this Part. Thus, the main thesis advocated here is that variations in United Nations practice concerning choices of statehood are a result not of an abandonment of traditional legal criteria of statehood but of the proper use of flexibility in interpreting these criteria in relation to the claim in which they are presented. Concomitantly, the basic criteria of population, fixed territory, stable and effective government, and sovereign independence have been—and should be—followed quite closely.
Id., at 54. See also p. 120 (dealing with the concept of domestic jurisdiction in United Nations practice) (“the assumption that United Nations jurisdiction in these matters [South Africa] is a mere political reflection of the governing influence of the Afro-Asian bloc, and devoid of legal basis, must be rejected as facile and inaccurate”.).
While one may not agree with Higgins that United Nations resolutions by and large reflect state views concerning rules of international law rather than political expediency (see infra, text at nn. 87–89), particularly after 1963 when the book was written, it is clear that she so believed and for that reason considered resolutions as being of “legal significance as evidence of customary law”. What is not entirely clear is whether by state practice she means acts and statements by a state reflecting a belief that a legally binding obligation exists, or whether she considers a state's vote for the resolution to be sufficient indication of state practice. Thus, she stated,
To make clearer my own starting point I will here repeat briefly what I fear I have said on many other occasions: that the political bodies of international organizations are a relevant forum in which to search for acknowledged sources of law, namely, treaties and customs; and further that the United Nations provides a comparatively sharply focused forum for state practice by United Nations Members; and that United Nations organs, in their day-to-day work, necessarily contribute to the clarification and creation of law.
The proposition is that the General Assembly and Security Council provide a concentrated forum for the practice of states on a wide range of issues. This state practice comprises the total of their individual acts and of their collective acts. To this extent, therefore, the United Nations political organs provide sources formelles—the evidence of a recognized source of law in the form of state practice showing the existence of a custom.
Higgins, , “The United Nations and Law Making”, Proceedings of the American Society of International Law, 1970, printed in (1970) 64 Am. J. Int'l L. 37, 38CrossRefGoogle Scholar. And further,
Even if one rejects the implication that the official statements of nations are not state practice, the point that Judge van Wyk is making seems to me a very important one; namely, that to ascertain if there exists customary international law prohibiting non-discrimination, we must look not only to what states say in the United Nations, but what their own patterns of behavior reveal.
… I feel that national practice which runs counter to votes recorded at the United Nations may indeed make doubtful the claim that the resolutions of the Assembly are, in this particular circumstance, evidence of customary international law. Id., at 47.
However, she criticizes Judge Jessup's and ad hoc Judge Van Wyk's position in the South West Africa case that applicants could not establish the existence of a non-discrimination norm by citing resolutions of the General Assembly, (Jessup is quoted supra n. 66), saying,
But it seems to me that the legislative character is not what is at issue. What is required is an examination of whether resolutions with similar content, repeated through time, voted for by overwhelming majorities, giving rise to a general opinio juris, have created the norm in question.
Id., at 43.
The proposed Restatement is quite clear that it considers resolutions in themselves, even if unconfirmed by state practice, sufficient. It states that the Assembly has “adopted resolutions, declarations and other statements of principles that have contributed to the process of making customary law, statements and votes of government being treated as kinds of state practice or expressions of opinio juris. §102, Reporters' Note 3 (emphasis added). See also §103, Reporters' Note 2, “but especially in the absence of other practice, a resolution declaring the law is probative evidence of what the state voting for the resolution regards as the state of international law”.
75 See e.g., Sohn, , “The Universal Declaration of Human Rights”, (1957) 8 J. Int. and Comp. Jur. 17Google Scholar; Bleicher, , “The Legal Significance of Re-Citation of General Assembly Resolutions”, (1969) 63 Am. J. Int'l L. 444CrossRefGoogle Scholar; Asamoah, , The Legal Significance of Resolutions of the General Assembly of the United Nations (1966)Google Scholar; But see Arangio-Ruiz, supra n. 17: “The simple repetition of a rule in the Assembly does not by itself ‘create’—in spite of overwhelming majorities, similarity (or identity) of content, or length of the period covered by the repetitions—a corresponding customary norm … there still remains to consider the conduct and the attitude of states with regard to actual behaviour, positive or negative, contemplated as due by the rule”. 476 (emphasis added).
76 UN Doc. E/C N.4/L. 610, 2 April 1962. Quoted in 34 United Nations ESCOR, supp. No. 8 p. 15 UN Doc. E 3616/Rev.i. (1962). Arangio-Ruiz states, “As no objection has been raised by members to our knowledge, to this statement—according to which Assembly Declarations have, per se no more binding force, ‘as far as strict legal principle is concerned’, than a ‘recommendation’—the matter would seem to be settled”. Arangio-Ruiz, supra n. 17 at 449.
77 Compare Asamoah, supra n. 75 at 242–43 (emphasis added):
The Resolution affirming the Nurenburg principles was a declaration on the part of the states voting for it that they recognize the principles as valid international law binding upon them. In our view this makes the principles general customary international law. We have tried to show that what is essential for the validity of a rule is a consensus that such a rule is law.
But see Arangio-Ruiz, supra n. 17.
78 Falk, supra n. 70. For a brief but excellent analysis of the inconsistency of Falk's position, see Onuf, , “Professor Falk on the Quasi-Legislative Competence of the General Assembly”, (1970) 64 Am. J. Int'l L. 349CrossRefGoogle Scholar.
79 Falk, supra n. 70 at 783.
80 Id., at 784.
81 The United States has repeatedly taken the position that U.N. Resolutions do not have binding legal force. Eleanor Roosevelt did so in the early days of U.N., with respect to the Universal Declaration, even though she vehemently supported it. Ambassador Richardson did so mor e recently, with respect to the Declaration of Principles Governing the Sea-Bed and the Ocean Floor and the Suboil Thereof, Beyond the Limits of National Jurisdiction, which declared these to be “the common heritage of mankind”. In response to a statement from the Chairman of the group of 77, that because of its special character and its adoption without dissent, the Declaration was “the authoritative expression of international law as to the regime of the seabed beyond national jurisdiction”, Richardson said, “We cannot accept the suggestion that other states, without our consent, could deny or alter our rights under international law by resolutions, statements and the like”.
82 Section 102 provides:
Sources of International Law
(1) A rule of international law is one that has been accepted as such by the international political system
(a) in the form of customary law;
(b) by international agreement; or
(c) by derivation from general principles of law common to the major legal systems of the world.
(2) Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.
(3) International agreements create general international law when such agreements are intended for adherence by states generally and are in fact widely accepted.
(4) General principles of law common to the major legal systems, even if not incorporated or reflected in customary law or international agreement, may be rules of international law, if they are appropriate to international law and are of the kind that the international system has accepted.
83 See §102, Comment (a).
84 The Restatement means by sources “ways in which rules become, or become accepted as, international law” and by evidence “whether some rule has in fact been accepted as international law”. §102, Reporters' Note 1. Article 38 of the Statute of the International Court of Justice does not distinguish between sources and evidence. It requires the Court to apply international conventions, international custom, general principles of law and “judicial decisions and the teachings of the most highly qualified publicists of various nations, as subsidiary means for the determination of rules of law”, (emphasis added). The Article is quoted in full supra, n. 59.
85 See supra n. 56 and accompanying text.
86 While the Restatement draws a clear distinction between sources and evidence of international law, see § 102 Comment (a) and n. 84 supra, the distinction between resolutions as a source of international law and as evidence of international law is not clear in the Restatement itself.
In its discussion of resolutions as a source of law, the Restatement says,
There is much uncertainty as to the legislative effect of … resolutions of the United Nations General Assembly. Budget and other “housekeeping” arrangements apart, the General Assembly cannot mandate but only recommend to members … The Assembly has, however, adopted resolutions, … that have contributed to the process of making customary law, statements and votes of governments being treated as kinds of state practice or expressions of opinio juris … The contributions of such resolutions to the law-making process will differ widely, depending on the subject of the resolutions, whether it purports to state legal principles, how large a majority it commands, whether it is supported by the states principally affected, and whether it is later confirmed by other practice.
§ 102, Reporters' Note 3. The implication clearly is that if the resolution purports to state a legal principle, is voted for by a large majority, is supported by the states principally affected, and is later confirmed by other practice, its status as a source of law is strengthened.
In its discussion of resolutions as evidence of international law, the Reporters' Notes state,
a resolution declaring the law is probative evidence of what the states voting for the resolution regard as the state of international law. If such a resolution is adopted by an overwhelming majority, and the General Assembly continues to reaffirm this resolution, the evidence that it reflects the law is strengthened.
§ 103, Reporters' Note 2. The criteria for finding that a particular resolution is a source of international law and for finding that it is evidence of international law are substantially similar, except that the criteria for source include “whether it is later confirmed by other practice”, whereas the criteria for evidence do not. Quite the contrary, the Reporters' Notes state, “What states have done is, of course, more weighty than their declarations or the resolutions they vote for, but especially in the absence of other practice, a resolution declaring the law is probative evidence of what the states voting for the resolution regard as the state of international law”. Id.
The requirement that the resolution be confirmed by state practice if it is to constitute a source of law but not if it is to constitute evidence of law is puzzling in several respects. First, if it is confirmed by state practice, such practice constitutes a source of customary law under traditional doctrine and under § 102 of the Restatement, and it is not necessary to look to the resolution as a source of law. Secondly, why are resolutions probative evidence of a rule of international law “especially in the absence of other practice”? Finally, how is that to be reconciled with the immediately preceding statement in the same sentence that “What states have done is, of course, more weighty than their declarations or the resolutions they vote for”?
87 See § 103, Reporters' Note 2. The Note is quoted supra n. 59.
88 See Arangio-Ruiz, supra n. 17 at 457. It is, of course, the latter type of resolution that most scholars who urge giving General Assembly resolutions legal effect, either as a source or as evidence of international law, would like to see interpreted as imposing binding obligations. No doubt some General Assembly resolutions, such as the Universal Declaration of Human Rights, set forth principles that should be binding rules of international law. But it doesn't follow that therefore General Assembly resolutions have, or even should have, legal effect. Not all resolutions fit neatly into one category or the other, there may be considerable disagreement with respect to a particular resolution, and there are no clear criteria for distinguishing between the two. But most important, there is no basis in the Charter for attributing legal effect to any resolutions of the General Assembly (other than budget and certain internal resolutions). Although Schachter advocates the position that some General Assembly resolutions should have some legal significance, he recognizes that determining which resolutions and what significance raises very complex questions. See Schachter, , “The Evolving International Law of Development” (1976) 15 Colum. J. Transnat. L. 1Google Scholar.
89 Schwebel, supra n. 64 at 302.
90 Id.
91 See supra n. 76.
92 See supra n. 8
93 Since the Restatement is a subsidiary source under Article 38 of the Statute of the International Court of Justice, see supra n. 59, the inclusion of this provision in the Restatement might have the paradoxical result of permitting the International Court to give “substantial weight” to resolutions of the General Assembly as evidence of international law, even though the General Assembly rejected a draft resolution that permitted the Court to consider such resolutions.
94 See, e.g., G.A. Resolution 3379 (xxx) (1975); G.A. Resolution 34/65b (1979); Stone, supra n. 60 at 9–10.
95 This is well illustrated by the numerous resolutions concerning Jerusalem, the West Bank, and Gaza after Israel's occupation of these territories in 1967, and the total absence of such resolutions from 1948 to 1967 while Egypt and Jordan occupied these territories, even though Israel's occupation of the territories resulted from the use of force in self-defense, whereas the Egyptian and Jordanian occupation was the result of the use of force in clear violation of the Charter. Compare Franck, , “Of Gnats and Camels: Is there a Double Standard at the United Nations?” (1984) 78 Am. J. Int'l L. 811CrossRefGoogle Scholar. Prof. Thomas Franck, who believes the double standard charge is false in part, acknowledges that it is only too true insofar as Israel is concerned. He says,
As is so often the case, the exception to any generalization about the United Nations is the special case of Israel. The Assembly's majority invariably condemns Israel for deploying military force, but without any effort to criticize or inhibit those who use provocative force against it. In 1983, for example, the Assembly condemned “Israel's … expansionist and annexationist policies”, while uttering no word about the Syrian occupation of large parts of Lebanon. It criticized U.S.-Israeli military cooperation without mentioning the thousands of Soviet military “advisers” operating with Syrian force. Whatever claim to principled behavior the political organs of the United Nations may have, crumbles to a double standard whenever Israel is on the agenda.
Id., at 819 (emphasis added).
In the human rights area, where he believes the double standard claim is true in general, “the treatment of Israel, in both the Commission and the General Assembly, is in a class by itself”. Determinations of fact that often began as allegations by the Palestine Liberation Organization and are of “dubious probity”,
are reiterated in General Assembly resolutions and culminate in calls on members to “suspend economic, financial and technological … cooperation with Israel” and to “sever diplomatic, trade and cultural relations…”
These very serious, if nonmandatory, sanctions voted against Israel for human rights violations contrast with the lack of action against far more serious offenders. The Assembly has never been able to bring itself to address the extirpation of entire populations—some seven to nine million persons—in Burundi, Kampuchea and Pakistani Bengal. Nor did the mass murders perpetrated by Idi Amin in Uganda and, more recently, by the Ayatollah Khomeini in Iran bring the United Nations to vote sanctions.
Id., at 824–5. While Israel is a particularly acute example of the General Assembly's double standard, it is by no means the only case in point, as Franck amply demonstrates by comparing the United Nations response to human rights violations in Poland and Chile.
96 George Orwell, Animal Farm.
97 Henkin obviously disagrees. He says, “Declarations of law and some interstitial legislation by the General Assembly are inevitable and often desirable”. Henkin, , “The United Nations and the Rules of Law”, (1970) 11 Harv. J. Int'l L. 428, 431Google Scholar.