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THE RESOLUTIONS OF INTERN@TION@L ORG@NIZ@TIONS @STHE RESOLUTIONS OF INTERN@TION@L ORG@NIZ@TIONS @STHE RESOLUTIONS OF INTERN@TION@L ORG@NIZ@TIONS @STHE RESOLUTIONS OF INTERN@TION@L ORG@NIZ@TIONS @S

@ SOURCE OF INTERN@TION@L L@W@ SOURCE OF INTERN@TION@L L@W@ SOURCE OF INTERN@TION@L L@W@ SOURCE OF INTERN@TION@L L@W

March 2011

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In attempting to discuss this issue, it would be pertinent to first and foremost

expound on the meaning and character of law, sources of law, international law as an

aspect of law, its meaning and its sources.

In the long march and history of mankind a central role has always been played by

an idea of regulation and law. This is informed by the idea that order is necessary

when compared to chaos which is inimical to a just and stable development. Every

society, whether it is large or small, powerful or weak, has created for itself a

framework of principles within which to develop. Regardless of its form, every

society fashions out acceptable standards of behaviour by spelling out what can be

done, what cannot be done, permissible acts and forbidden acts.

Law is that element which binds the members of the community together in their

adherence to recognised values and standards. In all legal systems, the subject of law

is an entity, which has enforceable rights and duties at the law1. It can be a company

or an individual and both are defined as legal person by the law. Legal personalityis the main clause for the entities to function or in other words to allege and enforce a

claim. Law consists of a series of rules regulating behaviour and reflecting to some

extent, the ideas and preoccupations of the society within which it functions. This

means that with the needs in any particular community comes certain unique sets of

regulations. Therefore, law is always peculiar to the community or society it is

intended to regulate. The main characteristics of law are its binding force, the

language of law and most importantly the psychological effect it produces on those it

regulates.

There are three main sources of law; these are customs, judicial precedents and

legislations. Generally, law is a reflection of the customs of a set of people. Customs

are the patterns of behaviour that are accepted as the general standards of behaviour.

The important element of law is its psychological effect on the people who the law is

meant to regulate.

International law

1http://www.wordnet.princeton.edu/perl/webwn, accessed on 01 march 2011

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There are many contrasts between the laws from country to country because all

societies have their own peculiar needs. In the same vein, there are many contrasts

between law within a country (municipal law) and the law that operates outside and

between nation-states. The necessity of law is most desired where there is any kind of

integration and interaction between two or more interests. This is the foundation of

international law which operates to regulate relations between international interests

and subjects. International Law is the body of principles, rules, and standards that

govern nations and other participants in international affairs in their relations with

one another. Most international law consists of long-standing customs, provisions

agreed to in treaties, and generally accepted principles of law recognized by nations.

Some international law is also created by the rulings of international courts and

organizations.

The purposes of international law include resolution of problems of a regional or

global scope (such as environmental pollution or global warming), regulation of areas

outside the control of any one nation (such as outer space or the high seas), and

adoption of common rules for multinational activities (such as air transport or postal

service). International law also aims to maintain peaceful international relations when

possible and resolve international tensions peacefully when they develop, to prevent

needless suffering during wars, and to improve the human condition during

peacetime.

Sources of international law are the materials and processes out of which the

rules and principles regulating the international community are developed. They

have been influenced by a range of political and legal theories. During the 19th

century, it was recognised by legal positivists that a sovereign could limit its

authority to act by consenting to an agreement according to the principle

This consensual view of international law was reflected in the 1920

Statute of the Permanent Court of International Justice, and preserved in Article

38(1) of the 1946 Statute of the International Court of Justice3

Article 38(1) is generally recognised as a definitive statement of the sources of

international law. It requires the Court to apply, among other things,

2

cases (1969). A treaty is based on the consent of the parties to it, is binding, and must be executed in

good faith. The concept known by the Latin formula ! " #

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(agreements must be kept) is

arguably the oldest principle of international law. Without such a rule, no international agreement would be

binding or...3

http://en.wikipedia.org/wiki/Sources_of_international_law#endnote_1

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1. International conventions "expressly recognized by the contesting states",and

2. International custom, as evidence of a general practice accepted as law.3. The general principles of the law recognized by civilized nations.4. Judicial decisions and the most highly qualified juristic writings "as

subsidiary means for the determination of rules of law".

Resolutions of international organizations

as international conventions and customs

On the question of preference between sources of international law, rules

established by treaty will take preference if such an instrument exists. It is also

argued however that international treaties and international custom are sources of

international law of equal validity4; this is that new custom may supersede older

treaties and new treaties may override older custom. Certainly, judicial decisions and

juristic writings are regarded as auxiliary sources of international law, whereas it is

unclear whether the general principles of law recognized by 'civilized nations' should

be recognized as a principal or auxiliary source of international law.

It may be argued that the practice of international organizations, most notably that

of the United Nations, as it appears in the resolutions of the Security Council and theGeneral Assembly, are an additional source of international law, even though it is not

mentioned as such in Article 38(1) of the 1946 Statute of the International Court of

Justice. This in my view is owing to the fact that such resolutions of international

organizations gradually come to become common practices producing some

psychological effect thereby crystallizing into international customs. International

law is constituted primarily by states and it is generally concerning the activities and

the transactions of states. Fifty years ago, it was generally admitted that states are

the only legal persons of the international law, but today conception is ratherdifferent, the participants can be regarded as; states, international organizations,

regional organizations, non-governmental organizations, public companies, private

companies and individuals.5

An international organization is an organization with an international

membership, scope, or presence. There are two main types: International

nongovernmental organizations (INGOs): non-governmental organizations (NGOs)

45

D.P. oconnel,

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that operate internationally. 6 These international organisations being subjects of

international law also, by their practices and customs, form a source of international

law especially as can regulate activities between such organizations and other

international entities.

One classic example is the Food and Agricultural Organization of the United

Nations which has had some of its regulations and official reports enacted as

international treaties and international law. Article 34(2) of the Statute of the

International Court of Justice provides thus; The Court, subject to and in conformity

with its Rules, may request of public international organizations information relevant

to cases before it, and shall receive such information presented by such organizations

on their own initiative. This therefore means that the international court of justice in

deciding matters before it is permitted to make reference to the resolutions of theinternational organizations in determining what the prescribed standard of behaviour

should be.

Another instance is in the determination of what amounts to state responsibility

for a breach of international obligation. In line with this, the International Law

Commission makes certain regulations and resolution on what should amount to state

responsibility for international breach. Article one of the Draft Articles on the

Responsibility of States for Internationally Wrongful Acts provides thus; every

internationally wrongful act of a state entails the international responsibility of that

state. The article states the basic principle underlying the articles as a whole, which

is that a breach of international law by a state entails its international responsibility.

An internationally wrongful act of a state may consist in one or more actions or

omissions or a combination of both. Whether there has been an intentionally

wrongful act depends on the requirements of the obligation which is said to have

been breached and secondly on the framework conditions for such an act.7

The

permanent court of international justice applied this doctrine in a number of cases

among which include; phosphates in morocco case8, the corfu channel case9, factory

at Chorzow10

. In the Trail smelter case of 1937 where in 1896, a smelter located in

Trail, British Columbia, began operating und0er American ownership. However, in

1906, the Consolidated Mining and Smelting Company of Canada, Ltd. bought the

6http://www.en.wikipedia.org/wiki/International_Organisations

7James Crawford, THE INTERNATIONAL LAW COMISSIONSS ARTICLES ON STATE RESPONSIBILITY introduction,

text and commentaries, Cambridge university press. Http://www.cambridge.org8

1938, P.C.IJ., Series A/B, No. 749 I.C.J. Reports 1945, p.410

1928, P.C.I.J., Series A, No. 17, p.29

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smelter plant in Trail. This company expanded the plant in size and in turn in its

capacity to smelt zinc and lead ores. However, in 1925 and in 1927, two large, 400-

foot smoke stacks were built. There was a resulting increase in the amount of sulphur

emitted into the air. Within that same time period the amount of sulphur released

from the plant on a monthly basis almost doubled from what it had been in 1924.

The amount of sulphur released in 1924 was about 4,700 tons per month. But in

1927, the amount had raised to9, 000 tons per month. These increases continued

because this smelting operation of zinc and lead had become one of the largest in

North America. Finally, the effect of these harmful amounts of sulphur being

released was noticed in the State of Washington. The effects were noticeable because

for every ton of sulphur released into the air there are two tons of sulphur dioxide

created. It was this increase in sulphur dioxide that was detected through the rains.

In the period between 1928 and 1935, the Government of the United States filed

complaints with the Government of Canada that sulphur dioxide emissions from the

Trail smelter had damaged the Columbia River Valley. On August 7, 1928, the issue

was referred to the International Joint Commission by the United States and Canada

(IJC-UC) for settlement. The IJC-UC decided on February 28, 1931that the Trail

smelter should limit its sulphur dioxide emission sand that Canada should pay the

United States US$350,000 as compensation for damages. More importantly, the

arbitrator held that the state of Canada take responsibility for the acts of the

international conduct of the smelter company.

This goes to show that the resolutions of the international organisations reflect the

accepted standards of behaviour or the members of the community in which the

resolutions are intended to regulate.

International resolutions and treaties

The resolutions of international organizations also become treaties. Treaties can

play the role of contracts between two or more parties, such as an extradition treaty or

a defence pact. Treaties can also be legislation to regulate a particular aspect of

international relations, or form the constitutions of international organisations.

Whether or not all treaties can be regarded as sources of law, they are sources of

obligation for the parties to them. Article 38(1)(a), which uses the term "international

conventions", concentrates upon treaties as a source of contractual obligation but also

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acknowledges the possibility of a state expressly accepting the obligations of a treaty

to which it is not formally a party.

For a treaty-based rule to be a source of law, rather than simply a source of

obligation, it must either be capable of affecting non-parties or have consequences forparties more extensive than those specifically imposed by the treaty itself. The United

Nation Universal Declaration of Human Rights11

is an example of a treaty, though

signed by member states, forms an integral part of international law.12

Most of these

international treaties end up creating obligations that bind the international

community regardless of whether such treaties were wholly signed. For instance, the

United Nations Conference on the Human Environment, having met at Stockholm

from 5 to 16 June 1972, having considered the need for a common outlook and for

common principles to inspire and guide the peoples of the world in the preservationand enhancement of the human environment. For instance, principle 2 of the

Stockholm declaration provides that the natural resources of the earth, including the

air, water, land, flora and fauna and especially representative samples of natural

ecosystems, must be safeguarded for the benefit of present and future generations

through careful planning or management, as appropriate. The court of justice in

decided several cases with issues bordering on the environment relied on the

obligations created in the treaty, though signed by few nations, as legally and

internationally binding regulations.

In conclusion, though article 38(2) makes no mention of resolutions of

international organisations as being sources of law, it is indeed clear that international

law, just like law, regulates the interests and relations of the players on the

international arena. The recognition of international organisations as subjects of

international law brings to fore the fact that the resolutions of these international

organisations must form a part of the legal regime that regulates the affairs of such

international organisations.

11G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).

12On December 10, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal

Declaration of Human Rights the full text of which appears in the following pages. Following this historic act

the Assembly called upon all Member countries to publicize the text of the Declaration and "to cause it to be

disseminated, displayed, read and expounded principally in schools and other educational institutions, without

distinction based on the political status of countries or territories."

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