International Legislation
International Legislation
Enactments of international organizations
The term “international legislation” is used by writers on international law principally to refer to treaties and conventions which have a large number of parties and which purport to lay down rules of law of general application (Hudson 1931-1950, vol. 1, pp. xiii-xix; McNair 1961, pp. 729-739). The term has also been employed by certain authorities to include treaties which, although adhered to by few states, have established regimes or international settlements that are considered to be “objectively valid,” even vis-à-vis states that are not parties to the treaty (“Law of Treaties” 1960, pp. 87-95; McNair 1961, pp. 259, 749-750). Both categories of treaties are also characterized as “law-making treaties,” an expression which is often used synonymously with international legislation (McNair 1961, pp. 749-752).
Apart from multilateral treaties, “International legislation” may be appropriately applied to enactments of international organizations which formulate rules of conduct that are legally binding on states under the authority granted by the constituent instruments of the organizations. On occasion, the term “international legislation” has also been extended to include declarations of legal principles which have been adopted by a large number of states in an international organ, such as the General Assembly of the United Nations or a governing body of a specialized agency (Friedmann 1964, pp. 139 ff.).
“International legislation” and its near equivalent, “law-making treaty,” are not generally regarded as precise legal terms but rather as convenient designations for instruments which contain legal norms applicable to a large number of states. Some international lawyers object to the use of both expressions on the ground that they suggest a misleading analogy to domestic legislation and create the illusion of a “statute-substitute” in international law (Jennings 1964, p. 388; Fitzmaurice 1958, p. 158). This objection, insofar as it relates to multilateral treaties, rests primarily on the position that treaties, whether or not they prescribe general rules, create obligations only for the parties to the treaty based on their express consent and consequently that it is misleading to treat such treaties, even if they are adhered to by most states, as analogous to domestic legislation. With respect to nontreaty declarations such as those adopted by the General Assembly of the United Nations, the objection to the term “legislation” derives from the premise that the General Assembly has not been granted authority or competence to adopt rules binding on states (save for internal organizational regulations such as procedural and financial rules).
These objections to the use of the expression “international legislation” are essentially semantic; they are largely due to the misleading connotation of the word “legislation” when it is used to describe international instruments which differ in important respects from the normal statutory legislation of national states. The semantic difficulty can be met in some degree by defining “international legislation” so as to make quite clear its special meaning in the international context. However, beyond the semantic question there are more substantial problems regarding the law-making effects of treaties and declarations that cannot be settled simply by definition.
In analyzing these problems of international law-making, international lawyers customarily begin wth the most widely accepted formulation of the “sources” of international law, that found in article 38, paragraph 1 of the Statute of the International Court of Justice to which all members of the United Nations and several nonmember states have adhered. That paragraph declares that:
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 by 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.
It will be noted that this article makes no distinction between “law-making” and other treaties; all international conventions, whether general or particular, establishing rules expressly recognized by the contesting states, are to be applied by the court in deciding cases between them. in that sense, all treaties which lay down rules of conduct (whatever their subject matter or number of parties) are “legislative” for the parties. However, there is an evident difference between treaties to which only two or a few states have adhered and which concern questions of exclusive interest to them and those to which a large number of states have adhered (or are expected to do so) and which concern matters of general interest to states as a whole.
In this latter group are found the numerous multilateral conventions concluded under the auspices of the United Nations and its related agencies, such as those dealing with the law of the sea, with diplomatic and consular immunities, with telecommunications, narcotics control, labor standards, civil aviation, suppression of slave traffic, and genocide. The fact that these treaties have or are intended to have a wide application and are designed to serve the common interests of the whole community of states provides the basis for designating them as “legislation” and “law-making.” In contrast, the treaties with limited participation and interest are sometimes referred to as treaty-contracts (Starke 1947, pp. 42-43). The distinction between the two categories is not a rigid one, and there are a number of treaties which do not easily fit into one or another of the two categories (for example, the various agreements governing trade in and prices of certain primary commodities).
Nonetheless, the utility of the distinction is generally recognized, even if it may be debated whether “legislation” is an appropriate term to apply. The International Law Commission of the United Nations, an organ composed of eminent jurists representative of various legal systems, suggested in 1962 use of the category “the general multilateral treaty,” which the commission has defined as a multilateral treaty to which all or a very large number of states may become parties and which “concerns norms of general international law or deals with matters of general interest to States as a whole” (International Law Commission 1962).
The following discussion will deal, therefore, with those agreements of greater importance in the creation of norms of international law—general multilateral treaties and enactments of international organizations.
General multilateral treaties
Participation and universality
Governments and jurists generally agree that “international legislation” should be universal in application and therefore open in principle to adherence by all national states (International Law Commission 1962). Notwithstanding the agreement on this objective, its implementation has given rise to considerable controversy of a political character as to the principle and procedure for determining what entities are eligible to become parties. The controversies stem principally from the fact that there are sharp divergencies of view among governments on whether certain territorial communities should be regarded as “states”; these differences in their most acute form arise from the East-West conflict and concern especially such areas as East Germany, North Korea, and mainland China (Schwelb 1964, pp. 653-660). In most cases the issue has revolved around proposals that treaties be open to “all states” as against a provision that would define the eligible states as those which are members of the United Nations or one of its specialized agencies or which are invited by the General Assembly (Schwelb 1964, p. 654). The recent practice of the United Nations and of conferences held under its auspices has left it to the General Assembly or a similar political body to decide whether an entity wishing to become a party is a “state” for treaty purposes. Those opposed to this practice contend that it results in discrimination against territorial entities which meet the traditional legal criteria of statehood but which are excluded for political reasons by a number of governments.
It has been suggested by some international lawyers that in the case of a general multilateral treaty every state may become a party to the treaty unless otherwise provided by the treaty itself or by the established rules of an international organization (International Law Commission 1962). Thus, where a general multilateral treaty is silent concerning the states to which it is open, it would be presumed that every state may become a party. However, this rule would not settle the question of who determines whether a doubtful entity (that is, one which many governments do not consider to be a state) is or is not to be considered a state within the meaning of this rule. The secretary-general of the United Nations, who as a rule is the depositary of the general multilateral treaties concluded under the auspices of the United Nations or one of its related agencies, has expressed the view that as depositary he could not decide a controversy as to whether a particular entity (which is not a member of the United Nations or one of its specialized agencies) should be regarded as a state and he would have to refer this question to the General Assembly (United Nations General Assembly 1963, Record of 1258th meeting). Another procedure for dealing with this controversial problem was adopted in the Nuclear Test Ban Treaty of 1963, which provided that three governments—the U.S.S.R., the United Kingdom, and the United States—were depositaries. This enabled governments of territories (such as East Germany), recognized as states by one of the depositaries but not by the others, to accede to the treaty (Schwelb 1964, pp. 654-658).
Effects on nonparties
While the important features of widespread adherence and general interest in the subject matter of general multilateral treaties are often considered as sufficient to designate them as legislation, some authorities place emphasis on a third aspect—namely that some of these multilateral treaties have legal effects for all states whether or not they are parties to them. Obviously, if such treaties can be said to express rules binding on all states, they may then be characterized as “legislative” in a more direct sense than if they applied only to states which had bound themselves contractually. However, the conclusion that some treaties have “objective” legal effects for nonparties is not on its face compatible with the generally accepted principle that a treaty can only create law as between the parties to it (Roxburgh 1917, pp. 19 ff.). International lawyers have therefore considered it necessary to look outside the treaty itself to find a doctrinal basis for the application of treaty provisions to nonparties.
A generally accepted view is that treaty provisions can be considered a law for nonparties if the rules in question have become part of international customary law (International Law Commission 1964, pp. 182-183). Although this conclusion appears to be little more than a tautology—since it only asserts that customary law is law—it has considerable significance, in theory and practice, for the development of international law, reflecting as it does international experience rich in examples of treaties that have been treated as sources of general international law. Such treaties fall into three separate (though often overlapping) categories: first, the treaties which purport to restate and thus codify existing rules of customary law; second, the treaties which lay down new rules of general application of interest to states as a whole; third, the treaties which establish certain specific territorial or institutional arrangements. Each of these categories involves somewhat different considerations relevant to their consequences for all states, but especially for those states which are not parties.
Codifications of customary law. In the case of multilateral conventions which purport to codify existing customary law, the rules will often have a high degree of persuasive authority even before the treaty has received the required number of ratifications for its entry into force. Such authority arises from the fact that the rules in a treaty of this kind will usually have been formulated by a body of experts (such as the International Law Commission) on the basis of state practice and precedent and then adopted at an international conference by at least a two-thirds majority of the states of the world. Even if states fail to commit themselves formally to the treaty, the rules represent so authoritative an expression of existing law that they will probably be invoked and applied by nonparties as well as by parties in the course of events (“Law of Treaties” 1962, p. 83; Lachs 1957, pp. 317-319). Examples of recent codifying treaties which are widely accepted as authoritative formulations of general international law are the 1958 Geneva Conventions on the Régime of the High Seas and on the Continental Shelf, the Vienna Convention of 1961 on Diplomatic Intercourse and Immunities, and the Vienna Convention of 1963 on Consular Intercourse and Immunities.
Prescriptions of new norms. The situation is somewhat different when a multilateral treaty prescribes new general norms; for even if a large number of states have concluded the treaty, the rules in question cannot be regarded as expressing existing law, and therefore only states that have become parties will be bound by them. There is, however, a possibility that with the passage of time states that are not parties will follow the treaty rules in practice and will in due course come to accept them as declaratory of existing law (“Law of Treaties” 1960, pp. 72-107). The most commonly cited example of this phenomenon is the Hague Convention of 1907 on Land Warfare in regard to which the Nuremberg International Military Tribunal in 1945 stated that the rules laid down in the convention constituted “an advance over the then [1907] existing international law” but that by 1939 the rules laid down “were regarded as being declaratory of the laws and customs of war” (International Military Tribunal 1946). In a case of this kind, most international lawyers are careful to avoid stating that it is the treaty itself that creates law for states which are not parties to it and to emphasize that one must look to actual practice of other states to determine whether the rules of the treaty have come to be accepted by states generally as law (International Law Commission 1964, p. 183). In doing so, they seek to maintain the traditional distinction between treaty and custom as sources of international law while recognizing that states may by their conduct manifest acceptance of treaty rules as general law without formal adherence to the treaty. Although this process of “grafting an international custom on to the provisions of a treaty” (“Law of Treaties” 1964, pp. 61-62) involves more uncertainty as to the position of states than it expresses adherence to the treaty, it provides a means for governments to accept new law on the basis of concrete situations without formal commitments, which in abstracto may appear unduly restrictive. This consideration may be especially important when parliamentary ratification is required or when domestic political attitudes are involved; the process of tacit acceptance through conduct in such cases might prove a more feasible political means of adhering to the new rules than would ratification or accession.
Territorial and institutional arrangements. A third group of treaties which may have the effect of imposing rules on nonparties are those that establish territorial or institutional arrangements. In the view of some authorities (but not all), such treaties are considered to have created “objective regimes” valid erga omnes (Lachs 1957, pp. 313-315; McNair 1961, chapter 14). The treaties within this category include those which provide freedom of navigation of certain international rivers or waterways, treaties for the neutralization or demilitarization of particular territories, and international agreements for mandates or trusteeship of particular territories. Some examples, among many, are the Berlin Act of 1885 (relating to navigation on the Congo and Niger rivers), the Suez Canal Convention of 1888, the Vienna Agreements of 1815 regarding the neutralization of Switzerland, the 1959 Treaty on Antarctica, the Montreux Convention of 1936, and the mandate agreement for South-West Africa. Treaties of cession or boundary are also sometimes included in this category (for example, the Vienna settlement of 1815 relating to the free zones at the frontiers of Switzerland). Of a somewhat different character—because they do not concern a particular territory—are the treaties establishing a general international organization; the principal example is the charter of the United Nations which has been held to have created “an entity possessing objective international personality” and not merely personality recognized by the members (International Court of Justice, p. 185 in the 1949 volume).
While international lawyers generally recognize that treaties of this kind may result in the creation of rights and obligations for third states (i.e., not parties to the treaty), a number reject the principle of “objective regimes,” maintaining that the cases in which nonparties are regarded as having obligations and rights in respect to certain territorial or institutional regimes must result either from the development of a customary rule grafted on the treaty or from the assent of the nonparty to the regime established by the treaty (International Law Commission 1964, vol. 2, pp. 181-185). Some who object to the doctrine of objective regimes contend that it arose mainly in connection with the Concert of Europe in the nineteenth century and implies the imposition of a regime by more powerful states on weaker countries without their consent.
In terms of practical application the difference between the two doctrinal views may be of little consequence in many cases, because in regard to a regime which has been maintained for a substantial period of time custom as well as treaty can usually be advanced as the basis for its validity erga omnes. In some cases, however, it may be difficult to justify the objective status of the regime on the basis of custom or consent of nonparties. For example, there have been situations in which a non-party has invoked a treaty establishing a regime of free navigation before it would have been reasonable to speak of any custom (Roxburgh 1917, pp. 49-50), and there have been several cases where international tribunals have indicated that they regarded the treaty rather than custom as the source of the international regime (S.S. “Wimbledon,” 1923, P.C.I.J., Series A, No. 1, p. 22; League of Nations …1920, p. 18). Moreover, treaties involving neutralization (such as the 1955 Austrian treaty) are widely regarded as establishing a status erga omnes which all states are expected to respect (Lachs 1957, pp. 315-316); a similar position is taken by many in regard to a treaty of demilitarization such as the 1959 Antarctica Treaty.
In point of fact the legal situations created by treaties of this kind tend to receive widespread recognition soon after they have entered into force, so it would seem somewhat artificial to describe their effect on nonparties as the result of custom. Nor can one reasonably say in these cases that non-parties have assented to the regime in question. A more realistic view is that these regimes of neutralization and demilitarization receive general recognition from the time of the treaty largely because a large number of states, including those which are not parties to the treaty, acknowledge the competence of the treaty states to establish the regime in question and consider they have an obligation to refrain from violating its status (“Law of Treaties” 1964). In regard to international waterways, the rights and obligations of third parties may be based on the fact that the territorial state has dedicated the canal to international use and that third parties have relied on such dedication (Baxter 1964, pp. 182-184). Nevertheless, it remains difficult for many governments and jurists to accept the doctrinal principle of objective regimes because of its apparent “legislative” character and its connotation that states may be bound without their clear consent. They find it more acceptable to base the acceptance of such regimes (in cases where custom cannot be implied) on the consent of the third states to the regime (constituting, in effect, a supplementary agreement), a theory which gives effect to the right of a state to regard itself as free of obligations imposed by a treaty which it has not clearly accepted (International Law Commission 1964, vol. 2, pp. 181-184).
The charter of the United Nations requires special mention in this connection. Based on the necessity of maintaining peace on a global basis and not merely among its members, the charter includes among its major principles a paragraph stating that “The Organization shall ensure that states which are not Members of the United Nations act in accordance with these principles so far as may be necessary for the maintenance of international peace and security” (United Nations Charter 1945, art. 2, par. 6). Jurists have expressed divergent views as to whether this provision validly creates legal obligations for nonmembers, and various theories have been suggested as the basis for the extension of certain charter obligations to the non-parties (see for example Kelsen 1950, pp. 90, 109-110; Ross 1950, p. 40; Jessup 1948, p. 168; Guggenheim 1953-1954, vol. 1, p. 92; Falk 1965, pp. 75-76, 100-101). Notwithstanding these theoretical differences, the organs of the United Nations have accepted the validity of article 2, paragraph 6, and have accordingly considered themselves competent to adopt measures involving nonmembers so far as such action was considered necessary for international peace, and at least to that extent it can be said that the obligations of the charter may be regarded as applicable to nonmembers.
Reservations
A significant limitation on the law-making effect of multilateral treaties for the parties themselves arises from the practice of states to make reservations to such treaties. Such reservations normally take the form of declarations made at the time of signature—ratification or accession; a state, while accepting a treaty in general, excludes from its acceptance certain provisions by which it does not wish to be bound (Wilcox 1935, p. 55).
The practice of making reservations to multilateral treaties has increased considerably along with the great increase in the number, variety, and scope of such treaties (Bishop 1961, pp. 253-256). Some jurists have deplored the growing use of reservations on the ground that they tend to impair the integrity of negotiated multilateral agreements and weaken the contribution of treaties to general international law (“Law of Treaties” 1962, p. 83). On the other hand, the right to make reservations has been regarded by many scholars and governments as a positive factor in promoting the participation in treaties by an increased number of states even though such participation may involve less than complete conformity to the treaty (Bishop 1961, pp. 336-338; Schachter 1960).
While these conflicting policy considerations are clear in general terms, the concrete juridical, procedural, and political problems raised by reservations have been highly complex and have given rise to an extensive scholarly literature and a series of varying pronouncements by governments and international bodies.
The principal issue has centered upon the permissibility and effect of a reservation where the treaty in question is silent as to its receivability and the procedure for determining its effect. (Many multilateral treaties have clauses which permit reservations to certain articles; some treaties also stipulate procedures under which a reservation submitted by a state may be accepted.) One school of thought considered that a reservation implies the refusal of the “offer” constituting the treaty and the making of a fresh offer; consequently, the reservation can only be effective if it is accepted by all the parties to the treaty (Oppenheim [1905] 1955, pp. 913-914). This position, often described as the traditional view, resulted in a “unanimity rule” under which an objection to a reservation by even a single party meant that the reserving state could not become a party to the treaty unless it withdrew its reservation (McNair 1961, pp. 158-161).
However, several states have never followed this doctrine, and in 1951 the International Court of Justice in an advisory opinion relating to the Convention on Genocide concluded that the unanimity principle was not a rule of law even though the principle might be applicable in some circumstances (International Court of Justice, pp. 15-30 in the 1951 volume). In the view of the majority of the court, the absence of a treaty clause permitting a reservation does not preclude a state from making a reservation, at least with respect to a general humanitarian treaty such as that on genocide. A state making a reservation that has been objected to by one or more parties to the convention but not by others can nonetheless be regarded as a party to the convention “if the reservation is compatible with the object and purpose of the Convention” (p. 29). The court went on to say that in such circumstances the reserving state would not be a party vis-a-vis a state which objected to the reservation. The position taken by the majority of the court in regard to the Convention on Genocide conformed to the practice followed for many years in Latin American treaty relations (Inter-American Council of Jurists …1959, pp. 29-30). Subsequently, discussions in the General Assembly of the United Nations revealed widespread approval of this practice among governments from various parts of the world.
The attitude of most states did not go as far as to countenance an unlimited unilateral right to make any kind of reservation whatsoever; it was generally maintained—in keeping with the opinion of the International Court—that a reservation would have to be consistent with the essential object and purpose of the treaty. However, for most multilateral treaties the determination of the acceptability of the reservation was to be left to each state concerned, and the acceptance of a reservation by a party to the treaty would mean that the reserving state becomes a party to the treaty in relation to the accepting state. On the other hand, a state which considers the reservation to be incompatible with the object and purpose of the treaty may object to it and in doing so would prevent the treaty from coming into force between it and the reserving state, irrespective of what other states may do.
These principles were adopted by the International Law Commission in its reports on the law of treaties in 1962 and 1966, and it seems safe to predict that they will be followed in state practice relating to many general multilateral treaties. The commission, however, did specify certain exceptions. One such exception holds that in case of a treaty which is a constituent instrument of an international organization the effect of a reservation to which objection has been made is to be determined by decision of the competent organ of the organization unless the treaty itself provides otherwise (International Law Commission 1962). Another exception relates to a treaty concluded between a limited group of states; in that case the acceptance of all the parties is required if it appears from the purpose of the treaty that the application of the treaty in its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty (International Law Commission 1966, art. 17 of Draft Articles on the Law of Treaties).
Termination and denunciation
Many general multilateral treaties contain provisions for termination—for example, by fixing their duration, stating a condition which is to bring about termination, or providing for a right to denounce or withdraw from the treaty (“Law of Treaties” 1957, p. 45). The texts of several law-making treaties provide for termination when the number of parties falls below a specified minimum.
It is not unusual, however, for general multilateral treaties to lack any provision regarding termination or denunciation (recent examples are the charter of the United Nations, the four Geneva conventions on the law of the sea and the two Vienna conventions on diplomatic relations and on consular relations). In these cases, it is often a matter of controversy whether the treaty is terminable only by common agreement of the parties or whether individual parties have an implied right to denounce or withdraw in certain circumstances. Most authorities take the position that, in general, an individual party may denounce or withdraw from a treaty only if the treaty provides for such denunciation or withdrawal or if it is otherwise established that the parties intended to admit the possibility of denunciation or withdrawal (International Law Commission 1966). Thus a right of denunciation or withdrawal may be inferred under certain conditions from the treaty as a whole or from the character of the treaty. It has been suggested that in the case of treaties of alliance and commercial treaties there is usually a probability that the parties do not intend commitments binding for all time (“Law of Treaties” 1957, pp. 38-39; McNair 1961, pp. 501-505). On the other hand, with regard to a law-making treaty there may be a presumption that the parties intended to exclude a unilateral right of termination or withdrawal without agreement of the other parties when the treaty is silent on this point. Thus the character of the treaty would be relevant in deciding whether it meant to imply a unilateral right of denunciation or withdrawal, and there is no reason to exclude other elements which may throw light on the intention of the parties, such as the travaux prépara-toires of the treaty and the subsequent conduct of the parties (International Law Commission 1962).
When a party has violated the treaty in a serious or “material” respect, it is generally agreed that the other parties may terminate or suspend the performance of their obligations (“Law of Treaties” 1935, pp. 1081-1083). Some authorities have questioned whether the right of suspension should be admissible in the case of law-making treaties; on the other hand it appears inequitable to many that a state which has breached its treaty obligations should be allowed to enforce it against the injured party. Consequently, most authorities would grant to a state affected by the breach the right to suspend the treaty in whole or in part as between itself and the state guilty of the violation. If the breach by one state radically changes the position of all the parties with respect to further performance of their obligations, the others would be entitled to terminate or suspend the treaty (International Law Commission 1962; 1966).
Many authorities hold that the right to terminate a treaty or to withdraw from it may also be exercised under the principle of rebus sic stantibus, according to which a treaty may cease to be binding where a fundamental change of circumstances has occurred with regard to a fact or situation that existed at the time the treaty was entered into (Oppenheim [1905] 1955, pp. 938-944; McNair 1961, pp. 681-691; “Law of Treaties” 1935, pp. 1096-1126). While there are doubts as to how far this principle can be regarded as an accepted rule of international law and as to its effect on the security of treaties, it is widely felt that the principle is necessary to give a party to a treaty relief from outmoded and burdensome provisions (International Law Commission 1963). Moreover, there is considerable evidence that the principle is widely accepted in international law (Rousseau 1953, pp. 59-61; “Law of Treaties” 1957, pp. 56-60).
In formulating the doctrine of changed circumstances, international lawyers often lay stress on the requirement that changes of circumstances can be invoked as a ground for terminating the treaty only if their effect is to alter a fact or situation that constitutes an essential basis of the consent of the parties. It is commonly said that the change must be a fundamental one, the effect of which is to transform in an important respect the scope of the obligations undertaken in the treaty. Whether or not these broadly stated limitations would be effective in preventing arbitrary reliance on rebus sic stantibus depends largely on whether procedures are available and are used for determinations by the other parties to the treaty (or by arbitral or judicial tribunals) as to the validity of the attempted termination and the measures that might be taken if the termination is found to be invalid.
Enactments of international organizations
Although the term “international legislation” is mainly applied to multilateral treaties, it may also be used appropriately to include those rules and declarations of international organizations which are binding on states or other entities subject to the authority of the organization. Such enactments comprise two broad categories: (1) rules and regulations dealing with the structure, procedure, and functions of the organization; and (2) rules which impose obligations on or confer rights to states.
The first category, often referred to as “internal law,” typically includes rules of procedure, financial rules, regulations governing personnel, terms of reference of organs, and regulations applicable to administration of premises. Authority to issue such rules is often stipulated in the constitutional instrument of the organization; in the absence of such express authorization, the competence to issue such internal rules is regarded as an inherent power or as implied by the constitutional authority (Jessup 1956, pp. 185-319; Cahier 1963).
The second category which comprises enactments binding on states derives from authority granted in the constituent instrument of the organization or in a separate treaty conferring such legislative authority on the international body. In several organizations, unanimous approval of the members is required for the rules to be binding, as for example in the Central Commission for the Navigation of the Rhine and the Organization for Economic Cooperation and Development (OECD). Some international organizations are authorized to enact regulations by majority decisions, but the dissenting states are not bound if they reject the regulation or make reservations; this is referred to as a “contracting-out” procedure. Examples include the “annexes” adopted by the International Civil Aviation Organization, the International Sanitary Regulations adopted by the World Health Assembly, and rules on meteorology adopted by the World Meteorological Congress. The organs of the three European communities—common market, coal and steel, and atomic energy—are empowered to adopt, in some cases by majority decision, rules unconditionally binding on all member states whether or not they dissent (Pescatore 1958, pp. 51 ff.). In some circumstances these international enactments are given effect in the municipal legal systems and are directly binding on individuals (Stein 1965).
Finally, mention should be made of certain declarations of legal principles which have been adopted by the General Assembly of the United Nations; examples are the Declaration of Legal Principles Governing the Activities of States in the Use and Exploration of Outer Space (United Nations, Yearbook for 1963, p. 101), the Declaration on the Granting of Independence to Colonial Countries and Peoples (United Nations, Yearbook for 1960, pp. 49-50), and the Declaration of Principles on Permanent Sovereignty Over Natural Wealth and Resources (United Nations, Yearbook for 1962, pp. 503-504). These declarations are to be distinguished from those declarations (such as the Universal Declaration of Human Rights) which are expressed as standards for achievement and are clearly no more than recommendations.
Whether the declarations that purport to state principles of law (lex lata) should be considered obligatory per se (in the technical sense a “source of law”) or as evidence of legal rules or as recommendations has given rise to varying views among scholars and governments. A widely held view is that since the General Assembly lacks competence under the charter to adopt binding rules of conduct for states (except, as indicated above, in regard to internal procedures and administration), the declarations—whatever their wording—must in law be treated as recommendatory (Johnson 1955-1956). On the other hand, a number of authorities have maintained that the declarations adopted by almost all the states of the world containing legal principles accepted by them will generally be regarded as authoritative or at least as highly persuasive evidence that the principles in question will be applied as “law” (Friedmann 1964, pp. 139-141; Schachter 1964, pp. 95-98).
In some cases, as for example the declarations relating to activities in outer space and to sovereignty over natural resources, the principles set forth can be viewed as formulations of general international law; in other instances, as for example the declaration on independence of colonial territories, they may be considered as embodying an authentic interpretation of the charter adopted by its parties (Schachter 1963, pp. 186-188). Some writers place emphasis on the condition that the declarations should reflect general or even unanimous support in order to be treated as authoritative law (Lachs 1961). Yet even a unanimous declaration of legal principles may prove to be honored only in the breach and to be no more than a “dead-letter” rule. Realistically, therefore, the test of whether a given declaration has legislative effect can only be found in the future behavior of governments as shown by their practice and claims.
It may be possible, however, to characterize a declaration at the time of its adoption as an authoritative statement of law on the basis of various factors—in particular if it has received general support of governments (including all major groupings) and if the principles conform to prior authoritative precedents or are adopted in circumstances which indicate that governments are likely to observe them as obligatory rules. There is, in short, no single conceptual touchstone for determining the future legal effect of a declaration adopted by the General Assembly but, in view of the likelihood that some such declarations will be regarded as highly persuasive evidence of the legal rules they embody, it is not inappropriate to include them within the broad spectrum of international legislation.
Oscar Schachter
[See alsoAdjudication, article onInternational Adjudication; International LAW. Other relevant material may be found underinternational organization; law; legislation.]
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