Abstract
Treating the High Commissioner as essentially an agency for the enforcement of international legal rules on human rights, the Soviet representative in the Commission on Human Rights raised the important question of the juridical nature of the standards which the Office would be applying in the course of its work:
Unlike the United States and a number of Western countries, the Soviet Union considered that implementation measures, which were essential in any multilateral international instrument, should be adopted after and not before the acceptance by States of specific legal obligations. It seemed illogical that implementation measures should be considered, on the same footing, by States that would assume the obligations and by those that would refuse to do so. It was equally illogical to imagine that any institution could exercise the same jurisdiction over the State Parties to some international instrument and over States which were not parties to it, i.e., over States which had not assumed the same obligations. For those reasons, his country considered that all efforts to promote human rights and fundamental freedoms should be undertaken within the framework of multilateral international conventions.1
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References
See supra p. 14 for the adoption of Article 38 as our “working definition” of “law”. On the proposition suggested in the text see O Asamoah, The Legal Significance of the Declarations of the General Assembly of the United Nations, 61–62 (1966) and Baxter, “Multilateral Treaties as Evidence of Customary International Law,” 41 Brit. Y.B. Intl L. 275, 297–298 (1965–6).
Falk, “On the Quasi-Legislative Competence of the General Assembly,” 60 Am. J. Int’l L. 782, 786 (1966). To the same general effect see Lande, “The Changing Effectiveness of General Assembly Resolutions,” 58 Proc. Am. Soc. Int’l L. 162, 163–5 (1964); Sloan, “The Binding Force of a `Recommendation’ of the General Assembly of the United Nations,” 25 Brit. Y.B. Int’I L. 1, (1948).
Henkin, “International Law and the Behaviour of Nations,” 114 Recueil des Cours 171, 180–200 (1965). See also the same writer’s How Nations Behave 45–83 (1968) and Fisher, “Bringing Law to Bear on Governments,” 74 Harv. L. Rev. 1130 (1961).
H. Kelsen, Pure Theory of Law 27–8 (1967); H. L. A. H.rt, The Concept of Law 175–6 (1961).
Dr. Morris Abram, U.S. representative in the Commission on Human Rights 54 Dep’t State Bull. 1030–1 (1966).
Bissell, “The International Committee of the Red Cross and the Protection of Human Rights,” 1 Rev. des Droits de l’Homme 255, 257–9 (1968). Note also the efforts of the International Commission of Jurists to formulate and have states abide by its concept of “The Rule of Law.”
Cheng, “United Nations Resolutions on Outer Space: `Instant’ International Customary Law? ” 5 Ind. 1. Int’l L. 23 (1965).
Judge Tanaka in [ 1966 ] I.C. J. at 292. Cf. the separate opinion of Judge Van Wyk, id., at 169, denying that resolutions in the absence of practice of an overt nature are enough. I. was estimated in 1969 that the Universal Declaration of Human Rights had been referred to 75 times in later resolutions: Bleicher, “The Legal Significance of Re-Citation of General Assembly Resolutions,” 63 Am. J. Int’l L. 444, 444 (1969).
] I.C.J. at 294. For cautious Socialist acceptance of “custom by consensus” see Lachs (now the Polish Judge on the I.C.J.), “The Law of Outer Space,” 113 Recueil des Cours 7, 96–97 (1964); Mc Whinney, “The Changing United Nations Constitutionalism. New Arenas and New Techniques for International Law Making,” 5 Can. Y.B. I.tl L. 68, 83 (1967). For a warning that mere majority opinion may not be enough in the absence of Big-Power support see O. Lissitzyn, International Law Today and Tomorrow 108 (1965).
Y.B. Int’l L. Comm. 26 (1950). But see M. McDougal, H. Lasswell and I. Vlasic, Law and Public Order in Space 117 (1963); “The subjectivities of oughtness required to attend such uniformities of behaviour, which subjectivities may on occasion be proved by mere reference to the uniformities in behaviour, may relate to many different systems of norms, such as prior authority, morality, natural law, reason or religion.”
See Higgins, “The United Nations and Lawmaking: The Political Organs,” 33 Proc. Am. Soc. Int’l L. 37, 40–41 (1970).
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© 1972 Martinus Nijhoff, The Hague, Netherlands
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Clark, R.S. (1972). The High Commissioner as a Law Promoter Rather Than a Law Enforcer. In: A United Nations High Commissioner for Human Rights. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-8800-5_7
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