international law remains in force until it is displaced by another rule which commands the requisite universal support.

These are important holdings. Some especially perhaps the last-may prove controversial. Some exponents of the General Assembly's authority to shape international law may well find Professor Dupuy's holdings unduly demanding. For its part, the Government of the United States perhaps might view them as unduly expansive. The United States has not had reason to pronounce itself on Professor Dupuy's award, and, as was made clear at the outset, I do not speak this evening for the United States. Authorized spokesmen of the United States Government have, however, made two recent statements on the legal force of General Assembly resolutions which take a view of the General Assembly's lawcreating powers which appears to be less liberal than that of Professor Dupuy.

Mr. Schwebel then referred to a reply to an inquiry concerning the legal effect of resolutions and declarations of the General Assembly, which he had made as Deputy Legal Adviser of the Department of State in 1975 (see the 1975 Digest, p. 85), in part, as follows:

"To the extent, which is exceptional, that such resolutions are meant to be declaratory of international law, are adopted with the support of all members, and are observed by the practice of states, such resolutions are evidence of customary international law on a particular subject matter."

It is clear that these are substantial conditions. The statement speaks of resolutions which are "declaratory" of international law, which may be read to exclude resolutions which are frankly lawmaking rather than declaring. Such resolutions must be adopted with the support of "all members"-not simply with the support of a very large majority or with the support of the major groups. And such resolutions must be "observed" in state practice, though it is not specified how universally. If these conditions are met, then such resolutions are "evidence" of customary international law.

He continued with a discussion of the "dramatic difference of view on the legal force of a General Assembly resolution, the Declaration of Principles Governing the Seabed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction [General Assembly Resolution 2749 (XXV), adopted December 17, 1970],” that had been evidenced at the resumed Seventh Session of the United Nations Third Conference on the Law of the Sea, on September 15, 1978, by exchanges between the Chairman of the Group of 77, Ambassador Satya N. Nandan, Ambassador of Fiji to the European Communities, and Ambassador Elliot L. Richardson of the United States. (For Ambassador Richardson's statement, see this Digest, Chapter 2, § 4G., pp. 159-162.)

The meaning of this exchange for the force of General Assembly resolutions is obscured by the dispute over what the resolution means. It is not clear, for example, that common heritage equates with common property. But what is clear is that the Group of 77 maintained that a General Assembly resolution, adopted without dissent and after extensive negotiation, and directly addressing issues of international law, is sufficient to create international law, particularly in a situation where the Group of 77 contends there was no governing law. The United States and a number of other Western states disagreed, not only on the meaning of the declaration but on its legal effects. For its part, the Soviet Union, while it took care in 1970 to describe the Declaration as without legal consequence, in 1978 argued that the Declaration and the moratorium resolution [General Assembly Resolution 2574 (XXIV), adopted December 15, 1969] establish, if not a legal, than a moral and political norm, and that unilateral exploitation of the deep seabed would be "illegal." 19 In the least, what this episode demonstrates is that the views of states are profoundly divided on the issues of the impact of General Assembly resolutions on the content of international law. It perhaps suggests that those states and scholars who have liberally construed the powers of the General Assembly and their effects on international law may find it necessary to reconsider their position, for it is hard to ascribe such powers to the General Assembly when leading members of that Assembly challenge them.

The final portion of the address was devoted to the evolution of consensus as an alternative to confrontation, and to an evaluation of its significance in establishing new norms of international law:

"Confrontation" in present day international parlance has an undesirable ring. Shakespeare wrote of when "Strength match'd with strength, and power confronted power" [King John, Act II, scene 1, line 329]. These days, however, it is considered poor form for powers to confront powers, especially for great powers to confront the group of smaller powers, however thickly massed they may be. "Confrontation" suggests defiant, even antagonistic, opposition. Even if interests are in fact opposed, the ways of diplomacy and the favored processes of international organization mute the opposition and seek to arrive at "consensus." Formerly, it is said, the United Nations General Assembly unduly indulged itself in confrontational voting. Nowadays the situation is improved, because so many decisions are taken by consensus.

The advantages and disadvantages of consensus are in fact considerable, and they are well summed up in a recent Report of the Secretary of State on Reform and Restructuring of the U.N. System [concerning which, see this Digest, Chapter 2, § 4F., pp. 157158].... The report concludes that the United States is "prepared to give substantially greater weight in the determination of national policy to decisions arrived at by genuine consensus." This statement does not exclude resolutions concerning international law. However, the qualification of "genuine" is vital, for the United Nations has in recent years witnessed the adoption of resolutions

by fake consensus. For example, the resolutions of the Sixth Special Session of the General Assembly on the establishment of a new international economic order [General Assembly Resolutions 3201 and 3202, ante] were adopted "without objection," as the Assembly President put it-except that almost forty states then rose to state a cascade of objections, some of them profound. These reservations have not been lost from sight and, as noted, were given weight by Professor Dupuy in his arbitral award.

One critic of false consensus has put his concerns in these terms: "Minority groups forego using persuasion or firm opposition tactics. in respect of the majority; they resign themselves to having resolutions sponsored by majority groups passed even without being put to the vote. Virtually unchanging majorities (essentially resulting from an alignment of the nonaligned) prefer, in their turn, to harbor the illusion of greater success brought about by the absence of votes against." 21

The dangers of such processes are manifest. If, in their anxiety to avoid confrontation, or as expressions of weariness or cynicism, U.N. minorities go along with the consensual adoption of resolutions, essentials of which they actually oppose, the currency of the United Nations will be further depreciated. The minority will not tend to give such resolutions-perhaps any U.N. resolutions— weight in the formulation of their policies. The framework of intellectual discourse and analysis-the tilt of international opinion— will become deformed. The world-and scholars commenting upon it-will be misled in their understanding of what the thrust of international opinion really is. Claims may even be made for effects upon the content of international law which, if ever justified by genuine consensus, cannot possibly be justified by false consensus. If the principle of the sovereign equality of states has meaning, it must mean that the minority is as entitled publicly to state and to press for its views as the fashionable majority is entitled to advance its views. If the majority pushes for one result, it is not "confrontational" for the minority to push for another; or, if this be confrontation, let us make the most of it.

These strictures apply as well to the processes of codification. When those processes were re-launched in the early days of the United Nations, commentators were preoccupied with the question of how the United Nations could promote the codification and progressive development of a universal international law when the Soviet bloc could not be expected to agree to much of that law; it was the minority which could not be allowed to block the majority, or reduce its views to the least common denominator. For its part, the Soviet bloc never hesitated to state its positions and press them. Thirty years later, the international scene has altered somewhat; the Soviet bloc is not the only minority, and, on some issues, it seems to stimulate the majority. In that situation, should the Western minority-where it is a minority-mute its voice? Or should it confront differences where they are real, speak out for what is in its interest-as other states do not hesitate to speak out in

theirs and to speak out as well for what is in the international interest (as perhaps too few other states do)? Should not the West seek to persuade the majority to join it rather than tending to trim its judgments to majority winds?

In its early flowering in organs like the Outer Space Committee and the Special Committee on Principles of International Law concerning Friendly Relations and Cooperation among States, consensus was an instrument with which the West could block adoption of texts adverse to its interests. So equally could others block what was adverse to theirs. In its later development, consensus at times has been used as a way of submerging Western objections to the objectionable. If any defense can be made of such a result in the political and economic sphere, in the legal sphere it is the less defensible.

Consensus is at the root of customary international law. It is the object of codification and a pervasive part of the process of codification. It must be a process of genuine accommodation on all sides. But consensus at any price is no more worthwhile today than it was in 1948. Certainly it is not worthwhile if the disproportionate part of the price is paid by the West and at the expense of the system of international law which it has done so much to create.

2 Arangio-Ruiz, "The Normative Role of the General Assembly of the United Nations and the Declaration of Principles of Friendly Relations," III-1972, Recueil des Cours, pp. 431, 457.

3 See Lissitzyn, International Law Today and Tomorrow (1965) at pp. 34-36.

5

U.N. Doc. E/CN.4/L.610 of April 2, 1962.

Arbitral Award on the Merits in Dispute between l'exaco Overseas Petroleum Company... and the Government of the Libyan Arab Republic, XVII International Legal Materials (1978), pp. 1,

27.

8 Ibid. The views of states members of the United Nations on this resolution are discussed in Schwebel, "The Story of the United Nations Declaration on Permanent Sovereignty over Natural Resources," 49 American Bar Association Journal (1963), pp. 463 ff., reprinted in International & Comparative Law Center, Selected Readings on Protection by Law of Private Foreign Investments (1964), pp. 699 ff.

Ibid., p. 29. 10 Ibid., p. 30. 11 Ibid.

12 Ibid.

13 Ibid.

14 Ibid., pp. 30-31.

19 Statement by the U.S.S.R. Representative, provisionally summarized in A/CONF.62/SR.109, pp. 12-13.

21 Sperduti, "Consensus in International Law," II The Italian Yearbook of International Law (1976), at p. 36.

For the arbitral award of Professor René-Jean Dupuy in the dispute between Teras Overseas Petroleum Company and California Asiatic Oil Company v. The Government of the Libyan Arab Republic (Compensation for Nationalized Property), see International Legal Materials, Vol. XVII (1978), p. 1. See, further, the 1977 Digest, Ch. 9, § 2, pp. 675-680.