Member States Of The United Nations Essay

, Research Paper

Introduction

The General Assembly consists of all member states of the United Nations. In accordance with Article 10 of the UN Charta, the Assembly has the power to discuss any matters it sees fit, and to make recommendations to its members, unless the Security Council has seized itself to the situation, Article 12 of UN Charta. Therefore, if there is an argument for an international parliament, the only contender must be the United Nations General Assembly. Though, the influence of the General Assembly cannot be compared to those of a national parliament.

The Assembly has and is producing a great number of important resolutions, however, their legal nature is questionable.

It is the aim of this essay to examine to what extent the resolutions of the General Assembly influence the development of international law.

Influence of resolutions of the General Assembly on the development of international law

Article 38 (1) of the Statute of the International Court of Justice comprises a list of legal principles which should be applied by the Court in determining the rules of international law. This Article provides the recognised sources of international law to be treaty, custom, general principles and the opinions of academics and tribunals. This list is not exhaustive, it is merely an indication to the Court as to the sources it may use.

The resolutions of the General Assembly are not mentioned in Article 38, which leads to the question of their legal status.

There are different opinions on this subject.It is arguable to believe that General Assembly resolutions do not influence the development of international law, because of their political nature. Consequently, they only determine moral and political principles, which are of no legal validity.

On the other hand one may suggest to designate the resolutions of the General Assembly as quasi-legislative value. From this it follows that the resolutions can be compared to binding rules, thus are of legal importance.

However, it would be beyond the scope of General Assembly resolutions to define them as a new source of international law. This can be deduced from the fact that they are not mentioned in Article 38 of the Statute of the International Court of Justice. In addition, there is no evidence in the practice of states to assert that the resolutions of the General Assembly are recognised as a new source of law. Moreover, Article 10 of the UN Charta empowers the Assembly only to make non-binding resolutions. They are meant to be recommendations, which are not immediately legally binding upon the member states. If such resolutions are to have any legal validity they must be encompassed within the existing sources. However, only customary international law develops binding legal force. This leads to the conclusion that resolutions of the General Assembly are legally binding only when they may be considered a rule of customary international law. In order to examine the extent these resolutions influence the development of international law they must be tested against the validity of rules of custom.

Article 38 (1)(b) of the Statute of the International Court of Justice provides that a rule of costum consists of two elements, state practice, and the recognition of the practice by the state as law (the opinio juris).

First of all, we have to consider the requirements for state practice. In accordance with the Asylum Case the International Court of Justice held that for a rule of customary international law to exist the state must act out of an obligation and not merely political pressure. There is no minimum time limit on the duration of state practice before the rule may be considered as part of customary law. The test is whether the rule is generally accepted in the practice of state.

State practice can be identified through various factors: the action of states, publicised views of government, official response to international law, decision of municipal courts and participation by the state in international agreements.

One aspect of state practice is, thus, the way a state participates in an international arena, such as the General Assembly. In other words, the way states vote in the Assembly and the explanation given upon such occasions constitute evidence of state practice and state understanding as to the law.

However, a vote in favour, even by all states, is insufficient to create a rule of customary international law, if there is a lack of the necessary opinio juris. Where such opinio juris is absent the rule may be considered part of soft law of the international community but may not be considered as a binding rule of international law. Differently to rules of customary law, not to comply with soft law may cause diplomatic offences but does not break the law. Rules of customary international law are compulsory and impose a legal duty upon the state concerned.

Although it is difficult to identify an abstract body, such as a state, as being conscious of having a duty, the importance of the requirement of opinio juris to customary international law has been re-affirmed in a number of judgements by the International Court of Justice.

In the Nicaragua case the court held that the opinio juris requirement could derive from the circumstances surrounding the adoption a

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