Chapter 12 SCIENTIFIC, EDUCATIONAL AND CULTURAL § 1 Scientific Affairs.. AFFAIRS Science, Technology, and American Diplomacy. § 2 Educational and Cultural Affairs..... United States International Communications Agency. Illicit Import, Export, and Transfer of Cultural Property. U.S.-Egypt.. Chapter 13 PEACEFUL SETTLEMENT OF DISPUTES Page 1515 1515 1516 1516 1517 1524 1524 $1 Negotiation; Inquiry; Conciliation; Mediation; Good Offices. United Nations.. 1527 1527 §3 Judicial Settlement; The International Court of Justice. The International Court of Justice... Chapter 14 LEGAL REGULATION OF USE OF FORCE 1564 1564 U.N. General Assembly Special Session on Disarmament (SSOD).. 1642 Defense of the Panama Canal. § 9 Military Assistance and Sales... Assistance and Sales... Sale of Aircraft to Middle East Countries. Chapter 15 PRIVATE INTERNATIONAL LAW 1668 1671 1671 1675 1675 1675 1679 1682 1683 1683 1683 1691 U.N. Convention on the Carriage of Goods by Sea.. 1708 Ambassador at Large Elliot L. Richardson, Special Representative of the President for the Law of the Sea Conference, addressed the Seapower Symposium of the Cincinnati Council of the Navy League of the United States on January 18, 1978, concerning the "single most difficult problem" facing the Third United Nations Conference on the Law of the Sea-an international regime for mining the deep seabed. Ambassador Richardson prefaced his discussion of specific key issues with general observations that related, in effect, to the development of international law in new substantive areas: [T]he ingredients of a fair and reasonable compromise are still within the grasp of the conference. The compromise, which I am convinced we can achieve, must accommodate the essential interests of the proponents of contending philosophies. Further, it must be premised on acceptance of the fact that the maximum objectives of neither can be fully realized. The key to producing the requisite change in the dynamics of the conference is the readiness to concede that politics-international or national-is still the art of the possible. That the search for consensus on seabed mining should be the most controversial, complex, and difficult business still before the conference is hardly surprising. Unlike much of the work of the conference, drafting a constitution for the seabeds is not an exercise in codification of existing or emerging international law, but rather an effort de novo to create by consensus new international institutions in a field where there is no prior experience or legal precedent. Dept. of State Bulletin, Vol. 78, No. 2011, Feb. 1978, pp. 39, 40. United Nations General Assembly Declarations Stephen M. Schwebel, a member of the United Nations International Law Commission and Deputy Legal Adviser of the Department of State, spoke to the American Branch of the International Law Association on November 3, 1978, about the impact upon customary international law of declarations of the United Nations General Assembly. (1) His address, entitled "Confrontation, Consensus and Codification in International Law," took as its point of departure pronouncements upon this subject by Professor René-Jean Dupuy, the arbitrator in the dispute between Texaco Overseas Petroleum Company and California Asiatic Oil Company and the Government of the Libyan Arab Republic (Compensation for Nationalized Property), and by Ambassador Elliot L. Richardson at the resumed Seventh Session of the United Nations Third Conference on the Law of the Sea, in reply to the Group of 77. Mr. Schwebel began by noting that the General Assembly, "composed on the basis of the unrepresentative principle of the sovereign equality of states, states which in turn are represented by governments so many of which are themselves not representative of their peoples," had no binding legislative authority, except as to certain of its own internal and financial matters. Nevertheless, an examination of the question whether General Assembly resolutions, some termed declarations, could create or change international law, led to the conclusion that such a declaration, depending upon its terms and content, might be taken as a valid element and articulation of state practice, but only if it also found sufficient other support in the actual conduct of states. On this, opinion is sharply divided. At one pole are those who maintain that the distinctions between recommendations and binding decisions are fundamental. The General Assembly has recommendatory powers. Its recommendations may and do embrace aspects of international law, but they remain recommendations, which states are legally free to accept and implement, or oppose and disregard. Those who deny that the General Assembly enacts or alters international law point out that, in fact, states members of the United Nations often vote for much with which they actually disagree. They often go along with a consensus when their reservations are not secondary but primary. They often vote casually: their delegates may be uninstructed or loosely instructed; they may vote because the members of their group have decided or are disposed so to vote, rather than because the immediate interests or considered views of their government so suggest. The members of the General Assembly typically vote in response to political, not legal, considerations. They do not conceive of themselves as creating or changing international law. It normally is not their intention to affect international law but to make the point which the resolution makes. The issue often is one of image rather than international law: states will vote a given way repeatedly not because they consider that their reiterated votes are evidence of a practice accepted as law, but because it is politically unpopular to vote otherwise. The United Nations General Assembly is a forum in which states can express their views; the expressed views of states undeniably may be elements of that state practice which can give rise to customary international law; but what states do is more important than what they say. It is especially more important than what they may say in a General Assembly context. General Assembly resolutions, however often repeated, are insufficient elements of state practice of themselves to establish international legal obligations. Thus, General Assembly resolutions are neither legislative nor sufficient to create custom, not only because the General Assembly is not authorized to legislate but also because its members-as Professor Arangio-Ruiz tellingly sums it up-don't "mean it;"2 that is to say, in fact, states often don't meaningfully support what a resolution says, and they almost always do not mean that the resolution is law. This may be as true or truer in the case of unanimously adopted resolutions as in the case of majority-adopted resolutions. It may be truer still of resolutions adopted by "consensus." I confess to much sympathy for the foregoing line of analysis, for my personal experience so fully bears it out. Perhaps, like Molière's notable character [Le Bourgeois Gentilhomme], the representatives of the United States in the General Assembly do not know that they are speaking prose all the time, do not know that they are enunciating or evidencing practice of international law. But what I can attest is that they certainly don't know it; indeed they-and those in Washington who instruct them-constantly say that the United States can vote for this or join in a consensus for that because, after all, it is only a recommendation. Yet the other pole of this problem also has much to be said for it. It readily acknowledges that the United Nations Charter gives the General Assembly no legislative powers. But it maintains that, in practice, many of its resolutions have had effects in and on international law; and that this practice, this broad construction of the General Assembly's powers, is now accepted and established. This school of thought, of which Oliver Lissitzyn is an acute exponent, does not accept the contention that, in the development of customary international law, what states do necessarily is more important than what they say. According to the traditional view, it notes, customary international law is created by uniformities in the actual conduct of states, if such conduct is accompanied by the conviction that it is required by international law. But it questions whether the emergence of customary international law is confined to this process of reciprocal claims and mutual tolerances. Uniformity of conduct creates expectations of continuation of the same sort of conduct. States and other international actors develop their policies and plan their actions on the basis of such expectations. There is therefore a common interest in the fulfillment of these expectations and in the stability of conduct, an interest which is translated into the doctrine that "custom" or "general practice" creates legally binding rules. |