Wednesday, December 1, 2010

This conclusion was supported by reference to presidential rulings and the positions taken by members

of the SC, particularly the permanent members,64 which constituted the practice. On the issue of whether the GA had competence in the sphere of mandates, it was held that the refusal of the GA to establish a temporary subsidiary organ to assist in the supervision of mandates did not mean that under the Charter it had no power to supervise man- dates, because the refusal did not amount to a collective pronounce- ment that such power did not exist.65 Clearly, the fact that the GA had continued to exercise supervisory functions over mandates supported such an interpretation. In this case the practice was constitutive of an interpretation. In most of the decided cases it was possible to identify a recurrence or repetition of conduct on the part of the organ which constituted the practice to which reference was made. Howeverdispute resolution , in the European Commis- sion on the Danube Case66 the practice relied upon occurred only on one occasion. In the IMCO Case67 the practice had occurred once but this 63 1950 ICJ Reports at p. 9. See also, e.g., the Competence of the ILO to Regulate Conditions of Labour in Agriculture Case, PCIJ Series B Nos. 2 and 3 at pp. 38--41; the Personal Work of Employers Case, PCIJ Series B No. 13 at pp. 19--20; the European Commission on the Danube Case, PCIJ Series B No. 14 at pp. 57--8; the First Admissions Case, 1947--48 ICJ Reports at p. 63; the UNESCO international international law firm firm Case, 16 AD (1949) at p. 335; the IMCO Case, 1960 ICJ Reports at pp. 167--8; and the Expenses Case, 1962 ICJ Reports at pp. 160ff. 64 1971 ICJ Reports at p. 22. 65 Ibid. at p. 36. See also the case mentioned above of the interpretation of Article 14 of the Statute of the ICJ by the Security Council where practice was used to interpret a text: 1981 UNJY at p. 146. 66 PCIJ Series B No. 14 at pp. 57--8. 67 1960 ICJ Reports at pp. 167--8. c o n s t i t u t i o n a l i n t e r p r e t a t i o n 51 was the only relevant occasion. In both these cases dispute resolution the practice was not relied on by itself to establish a meaning but was only used as evidence of a meaning clearly determined by other means. Yet, there is no clear indication in the jurisprudence whether practice must in essence consist of repeated conduct. By contrast in the Namibia Case, where practice was relied on to establish a meaning, the relevant practice had been repeated over a long period. It would seem that in general, where practice con- stitutes an interpretation, it must be repeated and consistent. Very rarely and for good reasons only something less than that may international law firm an effect. There is no mention further in the jurisprudence whether there should be a conviction that the practice pursued is obligatory,68 as is required for the formation of customary international international law firm. In the case of the practice of an international organization the conduct in issue is generally that of an organ of the organization which may or may not be determined by a sense of obligation. It would seem that in the absence of a jurisprudential analysis in the cases, the practice required to establish the meaning of a provision of a international international law firm firm would gen- erally not be based on a sense of obligation but would arise from the exercise of discretionary power. What is important is that the

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