114
i n t e r nat i o na l l aw
distinction between, on the one hand, actual sources of rules, that is those
devices capable of instituting new rules such as law-making treaties, cus-
tomary law and many decisions of the International Court of Justice since
they cannot be confined to the category of merely determining or eluci-
dating the law, and on the other hand those practices and devices which
afford evidence of the existence of rules, such as juristic writings, many
treaty-contracts and some judicial decisions both at the international and
municipal level. In fact, each source is capable, to some extent, of both
developing new law and identifying existing law. This results partly from
the disorganised state of international law and partly from the terms of
article 38 itself.
A similar confusion between law-making, law-determining and law-
evidencing can be discerned in the discussion of the various other methods
of developing law that have emerged since the conclusion of the Second
World War. Foremost among the issues that have arisen and one that
reflects the growth in the importance of the Third World states and the
gradual de-Europeanisation of the world order is the question of the
standing of the resolutions and declarations of the General Assembly of
the United Nations.
193
Unlike the UN Security Council, which has the competence to adopt
resolutions under articles 24 and 25 of the UN Charter binding on all
member states of the organisation,
194
resolutions of the Assembly are
generally not legally binding and are merely recommendatory, putting
forward opinions on various issues with varying degrees of majority
193
See e.g. O. Y. Asamoah,
The Legal Significance of the Declarations of the General Assembly
of the United Nations
, The Hague, 1966; D. Johnson, ‘The Effect of Resolutions of the
General Assembly of the United Nations’, 32 BYIL, 1955–6, p. 97; J. Casta˜neda,
Legal
Effects of United Nations Resolutions
, New York, 1969, and R. A. Falk, ‘On the Quasi-
Legislative Competence of the General Assembly’, 60 AJIL, 1966, p. 782. See also A.
Cassese,
International Law in a Divided World
, London, 1986, pp. 192–5; M. Virally, ‘La
Valeur Juridique des Recommendations des Organisations Internationales’, AFDI, 1956,
p. 69; B. Sloan, ‘The Binding Force of a Recommendation of the General Assembly of the
United Nations’, 25 BYIL, 1948, p. 1, and Sloan, ‘General Assembly Resolutions Revisited
(40 Years After)’, 58 BYIL, 1987, p. 39; Thirlway, ‘Law and Procedure of the ICJ (Part One)’,
p. 6; O. Schachter, ‘United Nations Law’, 88 AJIL, 1994, p. 1; A. Pellet, ‘La Formation du
Droit International dans le Cadre des Nations Unies’, 6 EJIL, 1995, p. 401, and Pellet,
‘Article 38’, p. 711; and S. Schwebel, ‘United Nations Resolutions, Recent Arbitral Awards
and Customary International Law’ in
Realism in Law-Making
(eds. M. Bos and H. Siblesz),
Dordrecht, 1986, p. 203. See also Judge Weeramantry’s Dissenting Opinion in the
East
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