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The Underdeveloped Nations and the Development of International Law

Published online by Cambridge University Press:  22 May 2009

Jorge Castañeda
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Extract

One of the responsibilities of the UN General Assembly is to encourage the progressive development and codification of international law. One method it may use in discharging diis responsibility is the convening of conferences to draft international conventions for submission to governments. The International Law Commission, a subsidiary organ of the Assembly, draws up draft treaties which may be utilized as working documents at such conferences. This method does not differ fundamentally from die normal procedures of creating international law, since, in substance, it involves die drafting and signing of treaties. However, the General Assembly has, at least potentially, other means (the study of which is die subject of this article), which have not been fully utilized and die use of which would perhaps permit a liberalization of the creative process of developing and codifying international law. Here we shall examine, in general terms, only one of tiiese, i.e., die possibilities and limitations of purely declarative codes of customary rules adopted by the General Assembly as means of discharging that organ's responsibilities.

Type
Research Article
Information
International Organization , Volume 15 , Issue 1 , Winter 1961 , pp. 38 - 48
Copyright
Copyright © The IO Foundation 1961

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References

1 Certainly, some of the institutions connected with the responsibility of states are of very ancient origin. The status of foreigners was an important topic in classic antiquity, and interesting doctrinal antecedents of this question are to be found in the Middle Ages. But the rules of international law that govern today the responsibility of states are of much more recent formulation.

2 Yearbook of tie International Law Commission, 1957 (Vol. I), p. 165Google Scholar.

3 UN General Assembly Official Records (8th session), Supplement No. 9.

4 Document A/CN.4/109, par. 8; Yearbook of the International Law Commission, 1957 (Vol. 2), p. 2Google Scholar.

5 In an international community that includes more than a hundred members, among which the small states and those to whom independence came relatively late predominate, only slightly more than twenty of those that were not historical contributors to the early formation of international law have accepted the obligatory jurisdiction of the Court (Yearbook of the International Court of Justice, 1957–1958, p. 188–209).

6 The generalized rebelliousness of the new states against the regime of territorial waters has had a decisive impact on attempts to codify it. At the Second Conference of the United Nations on the Law of the Sea, held in 1960 in Geneva, the great maritime powers were compelled to propose—or, in some cases, at least to tolerate—recognition of a six-mile territorial limit and a zone of six additional miles of exclusive fishing rights. By virtue of this stand against the established order, the traditional rule of international law, that is, the three-mile rule, that reflected the interests of the great maritime and fishing powers, virtually ended its existence as a compulsory legal norm. At the Geneva meeting there was not a single state that failed to vote in favor of a breadth greater than three miles. Even Iceland would have been satisfied had it not been for a clause recognizing historic fishing rights in the outer six-mile fishing zone for another ten years. While this aspect had no great present economic importance for Iceland, to admit the return of the English trawlers for another ten years after they had temporarily discontinued fishing in that zone presented an insurmountable political problem for the Icelandic government.

7 General Assembly Resolution 1450 (XIV), December 18, 1959.

8 Document A/C.3/SR.92.

9 Document E/SR.215.