Unilateral non-colonial secession in international law and declaratory General Assembly resolutions: textual content and legal effects.

• Author: Anderson, Glen
• Position: IV. Summation of Declaratory General Assembly Resolutions through V. Conclusion, with footnotes, p. 371-395

4. SUMMATION OF DECLARATORY GENERAL ASSEMBLY RESOLUTIONS

   The instruments examined above indicate, on balance, that the term "peoples" is not necessarily synonymous with the entire population of non-self-governing territory or state and may include national groups within non-self-governing territories and states. Principle 5, paragraph 7 of the Friendly Relations Declaration and Article 1 of the Fiftieth Anniversary Declaration provide a right to UNC secession. This right is a qualified one and will only be enlivened where non-colonial peoples are subject to deliberate, sustained, and systematic discrimination "of any kind." (124) This formulation captures a broad spectrum of human rights abuses, whether in moderato (political, cultural and racial discrimination) or in extremis (ethnic cleansing, mass killings and genocide).

   1. Legal Effect of Declaratory General Assembly Resolutions

      An investigation of the legal effects of declaratory General Assembly resolutions facilitates an understanding of the precise impact of the qualified right to UNC secession contained in Principle 5, paragraph 7 of the Friendly Relations Declaration and Article 1 of the Fiftieth Anniversary Declaration. (125) The legal potency of declaratory General Assembly resolutions has been the subject of considerable scholarly debate. One school of thought, sometimes referred to as the "traditional" school, denies that declaratory General Assembly resolutions have legal effect. (126) The other school, sometimes referred to as the "progressive" school, argues that such resolutions do have legal significance. (127) Although the General Assembly is not a legislature, it is nonetheless submitted here that there are four possible ways declaratory resolutions influence the law-making process: as authentic interpretations of the U.N. Charter, as evidence of state practice (customary law formation), as general principles of international law, and by indicating international consensus. (128) With the exception of consensus, these methods are included in Article 38(1)(a)-(c) of the Statute of the International Court of Justice ("ICJ"), which is generally regarded as the most authoritative statement on sources of international law. (129)

      1. Declaratory General Assembly Resolutions as Authentic Interpretations of the U.N. Charter: Article 38(1)(a) of the Statute of the ICJ

         It is possible that declaratory General Assembly resolutions may gain legal effect if they constitute authentic interpretations of the U.N. Charter, which itself is a treaty and valid source of international law under Article 38(1)(a) of the Statute of the ICJ. (130) The putative basis for such interpretations is found in Articles 10, 11(1), and 13(1)(a) of the Charter. (131) The former states:

         [t]he General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters. (132) Article 11(1) provides:

         [t]he General Assembly may consider the general principles of cooperation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments, and may make recommendations with regard to such principles to the Members or to the Security Council or to both. (133) Article 13(1)(a) provides:

         [t]he General Assembly shall initiate studies and make recommendations for the purpose of:

         a. promoting international co-operation in the political field and encouraging the progressive development of international law and its codification. (134)

         The central question, therefore, is whether a qualified right to UNC secession might gain legal effect by expression in a declaratory resolution purporting to interpret the U.N. Charter through Articles 10, 11(1), or 13(1)(a). The most likely declaration to fulfil this requirement is the Friendly Relations Declaration, which declares principles of international law, friendly relations, and cooperation among states in accordance with the U.N. Charter. (135) Examination of the Declaration's draft history strongly suggests that it was intended to operate pursuant to Article 13(1)(a) of the U.N. Charter. Paragraph 2 of Resolution 1815, (136) for instance, enunciated that the General Assembly "[r]esolves to undertake, pursuant to Article 13 of the Charter a study of the principles of international law concerning friendly relations and cooperation among States in accordance with the Charter with a view to their progressive development and codification, so as to secure their more effective application." (137) A later instrument relevant to the drafting of the Friendly Relations Declaration--Resolution 1966 (138)--also implicitly alluded to Article 13(1)(a) in its preambular paragraph:

         [r]ecalling its resolutions 1505 (XV) of 12 December 1960, 1686 (XVI) of 18 December 1961 and 1815 (XVII) of 18 December 1962, which affirm the importance of encouraging the progressive development of international law and its codification and making it a more effective means of furthering the purposes and principles set forth in Articles 1 and 2 of the U.N. Charter. (139) Finally, if any doubt need be eradicated, the sixteenth preambular paragraph of the Friendly Relations Declaration explicitly describes the seven principles contained therein as the "progressive development and codification" of international law. H0 Thus, it is clear that the principles contained in the Declaration are designed to operate pursuant to Article 13(1)(a) of the U.N. Charter.

         At this point it is apposite to note that the Friendly Relations Declaration has been invoked and endorsed by subsequent declaratory General Assembly resolutions, such as the Definition of Aggression, (141) the Declaration on the Admissibility of Intervention in the Internal Affairs of States, (142) the Manila Declaration on the Peaceful Settlement of Disputes, (143) the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, (144) the Declaration on the Prevention and Removal of Disputes and Situations Which May Threaten International Peace and Security and on the Role of the United Nations in this Field, (145) and the Fiftieth Anniversary Declaration. Accordingly, it can be argued that these instruments also purport to operate vicariously pursuant to Article 13(1)(a).

         The next question, therefore, concerns the actual scope and intent of Article 13(1)(a). Does it allow for authentic interpretations of the U.N. Charter by the General Assembly ("GA")? Scholars, such as Hailbronner and Klein, are of the clear opinion that it does not:

         Of course, the resolutions of the GA could have a binding effect if the GA were entitled to make authentic and binding interpretations of the Charter. Such a power was, however, expressly denied the GA at the founding conference in San Francisco. The Belgian proposal already made at the Dumbarton Oaks conference, namely to incorporate a provision to that effect into the Charter, was unsuccessful. Judgments of the ICJ thus far have not contradicted this point. In the advisory opinion of July 20, 1962 ... (Expenses case), the ICJ acknowledged that every organ itself must in the first instance interpret the specifications of its competence as laid down in the Charter; there is, however, no mention of a binding effect on the member states. It follows that the GA does not enjoy a privilege of interpretation; this would require an alteration to the Charter under Arts. 108 and 109. (146) When trying to assess the scope of Article 13(1)(a), it is worth recalling that Article 13(1) provides that the General Assembly "shall initiate studies and make recommendations." (147) Article 13(1) does not, therefore, mandate that the General Assembly may make legally binding determinations. On the contrary, it merely suggests the Assembly may adopt a recommendatory role. (148) This more limited scope is supported by the wording of Article 13(1)(a), which provides that such recommendations are designed to "encourag[e] the progressive development of international law and its codification." (149) The use of the words "encourage" and the phrase "progressive development" both suggest that Article 13(1)(a) is predominantly concerned with the development of international law de lege ferenda. Article 13(1)(a) does, however, also include the word "codification," which may arguably denote a more positivist de lege lata function. When trying to determine the difference between the terms "progressive development" and "codification" it is useful to consider the maiden report of the Committee on the Progressive Development of International Law and its Codification (150) (the Committee of Seventeen):

         The Committee recognized that the tasks entrusted by the General Assembly to the Commission might vary in their nature. Some of the tasks might involve the drafting of a convention on a subject which has not yet been regulated by international law or in regard to which the law has not been highly developed or formulated in the practice of States. Other tasks might, on the other hand, involve the more precise formulation and systemization of law in areas where there has been extensive State practice precedent and doctrine. For convenience of reference, the Committee has referred to the first type of task as 'progressive development' and to the second type of task as 'codification.' The Committee recognizes that the terms employed are not mutually exclusive, as, for example, in cases where the formulation and systemization of the existing law may lead to the conclusion that some new rule should be suggested for adoption by States.... For the codification on international law, the Committee recognized...