International Law: Codification, Treaties, and the Role of Organizations
All legal systems have a degree of accuracy, which leads to the codification of their rules. This is also true for international law. There was a time when a clear difference was thought to exist between domestic and international law. The former was considered a product of a political unit, while the latter was deemed to be of only technical and scientific interest. This is no longer true. The codification and progressive development of international law received a clear impetus after World War II due to the demands of a society that was both divided and unequal, yet interdependent, and in need of clarification and order.
Codification provides a starting point and a target language. Setting aside doctrinal efforts, official codification began at the end of the 18th century. Up until World War I, this work was driven by the impulse of one or more states. Its most outstanding results were in the areas of diplomatic law, the rules on how to make war, and the peaceful settlement of international disputes.
The UN Charter did not ignore the importance of codification. Article 13.1 tasks the General Assembly with the progressive development and codification of international law. To this end, the International Law Commission was created, whose statute specifies the manifestations that can be codified. The task of codifying international law, conducted mostly after World War II, has allowed the development of a long list of international conventions. It has also forced a rethinking of the value of custom and its relationship to written standards.
Most of the international community still prefers custom to treaties. However, treaties are the surest proof of international law and, in fact, are the best way to clarify, consolidate, and develop it. Treaties can generate three effects under customary law:
- Declaratory Effect: The treaty is limited to writing down previously existing customary rules.
- Crystallizer Effect: An emerging customary rule is driven by a treaty provision that collects and consolidates it.
- Generator Effect: Produced when an international treaty, over time, leads to a general practice that will become customary.
These effects do not occur only in respect of treaties, but also, for instance, in certain resolutions of the UN General Assembly.
The Role of International Organizations
Organizations are entities created by states. They are usually endowed, through a treaty, with certain powers. Whether a given organization may or may not adopt legal acts binding on its members is something to be determined in response to what its founding treaty has provided. Nothing prevents the states party to the treaty that gives life to an organization from attributing to its bodies the ability to make decisions binding on its members. This has happened in international practice.
Naturally, this is not uniform. The possibility of adopting binding acts will have much to do with the objectives of the organization concerned, the homogeneity and solidarity of the states that comprise it, and whether its powers are general or limited. Overall, it could be said that the binding nature of resolutions of international organizations is inversely proportional to the number of its member states and the political nature of their duties. Thus, the smaller and more technical the competence, the more likely the treaty will provide for the possibility of establishing legally binding resolutions.
- A. For example, the EU may, through its bodies, adopt acts legally binding on member states that are, moreover, directly applicable in domestic law since their publication in the Official Journal of the European Union.
- B. In other cases, resolutions are not directly binding per se on members, but they are forced to adopt a certain behavior.
- C. Finally, virtually all the political organs of an international organization have the power to adopt resolutions of an advisory nature.
Recommendatory resolutions of an international organization are actually a type of soft law and therefore essentially have a political and diplomatic value. Although in the United Nations, and probably in most organizations, the General Assembly may adopt resolutions binding on member states regarding procedural matters, the general instrument of the Assembly to make its voice heard is the recommendation.
In any case, some decisions may be singled out for other purposes that concern us, basically for three reasons: their solemnity, their formulation of general rules, and their general scope of application. The statements have a great influence due to their interaction with custom and even with the general principles of law:
- A. According to the majority of legal scholars, a resolution can play the same role as treaties with respect to custom.
- B. Some authors also argue that the Declarations of the General Assembly can directly create, without further requirements, general principles of law. A separate issue is that, in theory, these can play a role analogous to that played in relation to custom.
In short, resolutions of certain organizations can create binding legal rules for states. Even resolutions of an advisory nature may influence the formation of international law, helping the birth of its standards and serving as aids in determining the existence and content of its rules.