CYIL vol. 8 (2017)

ZUZANA TRÁVNÍČKOVÁ

CYIL 8 ȍ2017Ȏ

Resolutions as a source of international law GA, as well as HRC resolutions are non-binding. However, it is generally accepted that there may be three different forms of relation between a GA resolution (and an international organisation’s organ resolution in general) and customary international law. As Wolfrum lists in the Max Planck Encyclopaedia of International law, the GA may - at first - be declaratory of existing customary law. Second, they may start a process which eventually leads to the adoption of an international treaty. Third, “ repeated General Assembly resolutions adopted by consensus or unanimously may be considered State practice, thus establishing new customary international law. ” 4 The International Court of Justice examined the normative power of GA resolutions in 1996, in an advisory opinion on the legality of the threat or use of nuclear weapons. 5 Two of seven final statements in the advisory opinion relate to customary international law. 6 Regarding customary law, the Court´s deliberation respected two elements of customary rule – “actual practice and opinio juris of States” (par. 64), as developed in previous decisions. Possible links between resolutions and customary law were explained as follows: “ The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule. ” (par. 69). What are these “certain circumstances”? In Nuclear Weapons Advisory Opinion, the Court stated at least three reasons why GA resolutions do not establish the existence of an opinio juris on the illegality of the use of nuclear weapons. First was the weakness of the formulation used in the text of the resolutions (“should be prohibited”), second was the fact that “ the focus of these resolutions has sometimes shifted to diverse related matters “ (par. 71) and finally the Court noticed, that “ several of the resolutions under consideration in the present case have been adopted with substantial numbers of negative votes and abstentions “ (ibid). The ICJ´s advisory opinion together with other decisions and relevant sources was studied in depth by the International Law Commission (ILC). Since 2012, the topic “Identification of customary international law” 7 is included on the agenda of the ILC. The Third report on identification of customary international law elaborated by Sir Michael Wood, Special Rapporteur in March 2015, 8 focuses thoroughly on resolutions of international organisations and their role in identifying customary law. His analysis is not limited to GA resolutions 4 WOLFRUM, R., ‘Sources of International Law’, The Max Planck Encyclopaedia of Public International Law (May 2011). 5 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) 2006 accessed 21 May 2017 [69]-[71]. 6 “A . Unanimously, there is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons; B. By eleven votes to three, there is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such ;“ Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) 2006. [105]. 7 Originally, the title of the topic was “Formation and evidence of customary international law”; after the first report of the Special Rapporteur had been presented, the title of the topic was changed. 8 ILC, ‘Third report on identification of customary international law, by Michael Wood, Special Rapporteur’ (4 May – 5 June and 6 July –7 August 2015) UN Doc A/CN.4/682.

118