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Professor Falk on the Quasi-Legislative Competence of the General Assembly

Published online by Cambridge University Press:  28 March 2017

N. G. Onuf
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Notes and Comments
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American Journal of International Law , Volume 64 , Issue 2 , April 1970 , pp. 349 - 355
Copyright
Copyright © American Society of International Law 1970

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References

1 R. A., Falk and Mendlovitz, S. H., “Towards a Warless World: One Legal Formula to Achieve Transition,” 73 Yale Law Journal 420-421 (1964)Google Scholar; R. A. Falk, The Role of Domestic Courts in the International Legal Order 170-172 (1964); idem: “The Adequacy of Contemporary Theories of International Law—Gaps in Legal Thinking,” 50 Virginia Law Review 246 (1964); “The Legitimacy of Legislative Intervention by the United Nations,” in R. J. Stanger (ed.), Essays on Intervention 51-52 (1964); “The Shimoda Case: A Legal Appraisal of the Atomic Attacks upon Hiroshima and Nagasaki,“ 59 AJ.I.L. 792-793 (1965); “The New States and the International Legal Order,” 118 Hague Academy, Recueil des Course 41-43 (1966, II); “On the Quasi-Legislative Competence of the General Assembly,” 60 AJ.I.L. 782-791 (1966) (hereinafter cited as “Falk, On the Quasi-Legislative Competence“); “On Regulating International Propaganda: A Plea for Moderate Aims,” 31 Law and Contemporary Problems 634-635 (1966); “New Approaches to the Study of International Law,” 61 AJ.I.L. 486-487 (1967); “The South-West Africa Cases: An Appraisal,” 21 International Organization 22-23 (1967).

2 Like-minded writers include O. J. Lissitzyn, International Law Today and Tomorrow 35-37 (1965); C. Parry, The Sources and Evidences of International Law 21-23 (1965); E. McWhinney, International Law and World Revolution 49-51, 80 (1967). Discussions of the subject are also beginning to appear in text and casebooks; one example is R. N. Swift, International Law Current and Classic 551 (1969), which cites Falk, On the Quasi-Legislative Competence.

3 Falk, On the Quasi-Legislative Competence 782.

4 Ibid.784.

5 Ibid.785.

6 L. Lipsitz, “Consensus: The Study of Consensus,” in D. L. Sills (ed.), 3 International Encyclopedia of the Social Sciences 266-267 (1968); Prothro, J. W. and Grigg, C. M., “Fundamental Principles of Democracy: Bases of Agreement and Disagreement,“ 22 Journal of Politics 276 (1960)CrossRefGoogle Scholar.

7 As Prothro and Grigg observe, ibid.276, note 1, particularly for small groups without formal voting, consensus means unanimity, while for larger groups, “some students of collective behaviour employ a functional definition of consensus, taking it to mean that amount of agreement in a group necessary for the group to act.” The amount of agreement necessary to act is routinely determined by community rules.

8 Falk, “On Regulating International Propaganda: A Plea for Moderate Aims,” note 1 above, at 634-635. Falk does acknowledge that the exclusion of a great Power like the Chinese People's Republic from the United Nations undermines the General Assembly's position as voice of the world community. Falk and Mendlovitz, The Strategy of World Order, Vol. 3: The United Nations 161 (1966). Falk sidesteps this problem by giving consensus a variable quality: the strongest consensus approximates unanimity, while weaker consensuses, presumably reduced in legislative impact, tolerate non-participation or dissidence, even on the part of a great Power. Falk, On the Quasi-Legislative Competence 787-788.

9 C. W. Jenks argues that the consent theory of the basis of obligation has usually been

10 C. De Visscher, Theory and Reality in Public International Law 153-163 (rev. ed., 1968).

11 For a statistical picture and some analysis of the high incidence of unanimity in the adoption of General Assembly resolutions, see C. F. Manno, “Majority Decisions and Minority Responses in the UN General Assembly,” 10 Journal of Conflict Resolution 3-7 (1966).

12 On the Quasi-Legislative Competence 791.

13 Ibid.784. Falk himself seems to recognize the artificiality of contrasting consent and consensus, for later in the same essay (at 790) he remarks in reference to the process of customary law formation that “the myth of consent is frequently supplanted by the reality of inferred consensus.“

14 Ibid.785.

15 For the transition to world order orientation, see Falk and Mendlovitz, note 1 above, at 399-406. For a spirited defense of advocacy on the part of international legal scholars, see Falk, “New Approaches to the Study of International Law,” note 1 above, at 477-484. In his Hague Academy lectures, note 1 above, at 42-43, Falk might be understood as wholly rejecting the analysis from the point of view of customary law formation and transforming his advocacy of General Assembly legislative competence into an analysis of what he takes to be an existing, though insufficiently acknowledged, state of affairs. Quoting R. P. Anand's observation that “[a]lthough these resolutions are not formally binding and no more than ‘recommendations,’ their effects on the course of development of international law must not be underestimated,” Falk goes on to say: “Mr. Anand's conclusion, however correct in its deference to traditional thinking, is a misleading way to affirm the dynamic quality of international legal order. [Falk here cites On the Quasi-Legislative Competence.] It is essential to confirm that under conditions of requisite formality and consensus these resolutions set forth authoritative claims to control behaviour and constitute, at the very least, legislative facts’ by which appropriate decision-makers in national and international arenas can infer a new calculus of legal duty expressive of the will of the international community.“

16 R. Higgins, The Development of International Law through the Political Organs of the United Nations (1963); O. Y. Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations (1966); and works cited in both.

17 Schachter, O., “Towards a Theory of International Obligation,” 8 Virginia Journal of International Law 311 (1968)Google Scholar. See also H. Kelsen and R. W. Tucker, Principles of International Law 560-562 (rev. ed., 1966).

18 Falk, On the Quasi-Legislative Competence 786. On the criteria for assessing the effectiveness of General Assembly resolutions, see also Lande, G. R., “The Effect of Resolutions of the United Nations General Assembly,” 19 World Politics 83-105 (1966)Google Scholar. Falk credits Mrs. Lande for advice and assistance in preparing “On the Quasi-Legislative Competence.“

19 The Soviet conception of custom as a legitimate source of law now seems quite close to the Western conception, although the conditions for establishing the bindingness of specific rules are more stringent. See G. I. Tunkin, “Co-Existence and International Law,” 95 Hague Academy, Recueil des Course 9-21 (1958, III).

20 A small number of resolutions—notably, the Universal Declaration of Human Rights (General Assembly Res. 217 (III), Dec. 10, 1948), and the Declaration on the Granting of Independence to Colonial Countries and Peoples (General Assembly Res. 1514 (XV), Dec. 14, 1960)—have received widespread acceptance, but not, at least initially, as law. This acceptance is evidence of the coming into existence of customary law which is identical to the resolutions, so that latter-day affirmations of legality refer not to the resolutions themselves but to the corresponding customary rules. For striking evidence of the acceptance by states of these two resolutions, see Bleicher, S. A., “The Legal Significance of Re-Citation of General Assembly Resolutions,” 63 A.J.I.L. 444 (1969)Google Scholar.

21 General Assembly Res. 2131(XX), Dec. 21, 1965. For an examination of the debates on the legal significance of the Declaration, see N. G. Onuf, “The Principle of Non-intervention in the United Nations General Assembly,” in 4 Yearbook of World Polity (forthcoming), W. V. O'Brien (ed.).