CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ LEGAL STATUS OF UNILATERAL COERCIVE MEASURES … (although they stay in the centre of his and others interest), he writes also about resolutions of other meetings and conferences of States (par. 46). Wood’s report reviews the main conclusions of the ICJ in Nuclear Weapons Advisory Opinion and puts emphasis on two aspects mentioned in the advisory opinion: “the wording of the resolution“ (normative language or not) (par. 48) and “the circumstances surrounding the adoption of the resolution in question“ (the method employed for adopting the resolution, the voting figures and the reasons provided by States for their position) (par. 49). Sir Michael Wood proposes following Draft conclusion 13 on Resolutions of international organizations and conferences : “Resolutions adopted by international organizations or at international conferences may, in some circumstances, be evidence of customary international law or contribute to its development; they cannot, in and of themselves, constitute it.” (par. 54). 9 In the text of the draft conclusions provisionally adopted by the Drafting Committee in 2015, 10 the provision was broadened and re-structured into three paragraphs. The recent Text of draft conclusions from May 2016 11 formulates the provision on resolutions as follows: “1. A resolution adopted by an international organization or at an intergovernmental conference cannot, of itself, create a rule of customary international law. 2. A resolution adopted by an international organization or at an intergovernmental conference may provide evidence for establishing the existence and content of a rule of customary international law, or contribute to its development. 3. A provision in a resolution adopted by an international organization or at an intergovernmental conference may reflect a rule of customary international law if it is established that the provision corresponds to a general practice that is accepted as law (opinio juris) . ” The words “in some circumstances” as used in Wood’s draft were not adopted into the text of the Drafting Committee. However, the aim of this contribution is to look closer at these certain circumstances above all, because these circumstances imply the normative power of the resolutions of international organisations (UN GA and HRC). For the purpose of this text, we will return to the Nuclear Weapons Advisory Opinion. To test the normative power of GA resolutions on UCM, we should focus on two questions: 1. Is the language of the resolution convincing, are the formulations used in the text “strong” enough? 2. Were these resolutions adopted unanimously or was there significant opposition? The text focuses on GA resolutions first and then on resolutions of the HRC. To assess the normative language, the analysis concentrates on the words “violation”, “violate”, “contrary”, “contravention” and “inconsistent” in the text of resolutions. These words were chosen after initial language examination of relevant documents. 12 9 On the basis of Governments‘ comments to the Text of draft conclusions 1 to 16 [15] provisionally adopted by the Drafting Committee at the sixty-sixth and sixty-seventh sessions (A/CN.4/L.869), Michael Wood in the fourth report modified the wording of article 12; he suggested replacing the word “cannot” by “does not” and in the provision (draft article 12, paragraph 2) “ A resolution adopted by an international organization or at an intergovernmental conference may provide evidence for establishing the existence and content of a rule of customary international law, or contribute to its development .“ replace “establishing” by “determining”; however these modifications were not reflected in the last Drafting Committee conclusions (A/CN.4/L.872). 10 ILC, ‘Identification of customary international law? Text of the draft conclusions provisionally adopted by the Drafting Committee’ (4 May – 5 June and 6 July – 7 August 2015) UN Doc A/CN.4/869. 11 ILC, ‘Identification of customary international law: Text of the draft conclusions provisionally adopted by the Drafting Committee’ (2 May – 10 June and 4 July – 12 August 2016) UN Doc A/CN.4/L.872. 12 Words derived from the verb “prohibit” do not appear in the text of the initially examined 20 resolutions, chosen at random from all GA and HRC resolutions dealingwith UCM.

119