El cuidado en la convivencia escolar

The practice of States generally seems to furnish examples of States claiming to have rights and liberties, and of States claiming that other States have duties correlative to those rights. They seldom claim that they themselves have duties; and this is hardly surprising. Even when there might seem to be no clear legal basis for such claims. States seem to make them and still claim that they are permitted to do so by "international law".^^ We may take the classic example of the Truman Proclamation of 1945, in which the United States asserted that international law allowed a coastal State to appropriate title to the natural resources of the continental s h e l f . I t may be doubted whether, in 1945, international law really did grant such rights. In a note sent to Japan in 1958, the Government of Mexico in 1958 stated that it maintained the validity of (a) claims contained in its own legislation establishing a 9 mile territorial sea, and (b) the corresponding obligations erga omnesP^ Such claims, however, are, in the views of some States, contrary to established rights and obligations. These States normally claim the opposite, that the other States do not have a right or a liberty, but a duty, established

international practice is required to be only generally uniform, then one may question the extent to which the resulting customary rule really reflects the common features present in each practice.

^ It may be asked whether such references to "international law" refer to the concordance of the claim being made with an existing primary rule or to a secondary rule which permits a State to make a such a claim.

Whiteman, Digest of International Law, Vol. IV, p. 756.

Ibid., Vol. rv, p. 114. For a similar claim by Chile, see Szekeley, Latin America and the Development of the Law of the Sea (1986), Vol. I, pp. 13-16.

under "international law".^*^ However, the claims of these objecting States themselves may be similarly questionable/^ States seem to be particularly forthcoming when they are claiming their rights and liberties even when these are not clearly established; they are not so keen to pronounce on their own duties, as distinct from the duties of other States/*

Conclusions

To conclude, it would seem, as both consensualists and non-consensualists alike acknowledge, that State practice does not, or cannot, provide an answer to the question/^ It would also seem that majority rule does not have a legally ordained

The United States, in response to Canada’s purported extension of her territorial sea to twelve miles in 1970, wrote that "International law provides no basis for these proposed unilateral extensions of jurisdiction on the high seas, and the United States can neither accept nor acquiesce in the assertion of such jurisdiction"; see 9 ILM (1970), p. 605.

^ For example, many of the older maritime States maintained for a long time that the rule of international law on the breadth of the territorial sea imposed a limit of three-miles. See e.g. Gros, representing France in the 1958 Geneva Conventions on the law of the Sea, A/Conf. 13/39 Official Records, Vol. in , p. 19, paras. 21 and 25. See also the Japanese practice discussed at n. 11, supra. Most of the delegates at the Geneva Convention of 1958,

however, disagreed (see ibid.. Vol. Ill), generally, and no agreement was reached on the question at that Conference.

See, e.g., Churchill, Nordquist and Lay, New Directions in the Law of the Sea (1977), Vol. VII, p. 363, where the Republic of Cape Verde claimed an exclusive economic zone on the basis of "the changes in the Law of the Sea". Tunisia argued in the Tunisia/Libya Continental Shelf case {Pleadings), vol. IV, p. 431, that "Some of the solutions formulated in the Conference [i.e. UNCLOS III] are already followed in practice and command a wide measure of consensus, thus serving as a catalyst for the creation of new rules of customary law...". The United States and Poland signed an agreement in 1945 "Taking into account anticipated legal and jurisdictional changes in the regime of Fisheries management based upon the consensus emerging from the Third United Nations Conference" (see Oda, The International Law of Ocean Development (1979), Vol. II, VI.B.vii.6, p. 1.

See, e.g., Lobo de Souza, EEZ, p. 64 ("On this issue [i.e. whether a customary rule could be created and applied against the will of a particular State or a group of States], there is no conclusive evidence."), and p. 65 ("The first conclusion one could formulate is that there is no rule which prescribes that the consent of all States is a necessary condition to the formation of a general customary rule. The second conclusion is that there is no universally recognized rule which would replace the "all consent" rule.")

See also Suganami, "A.V. Lowe on General Rules of International Law", 10 Review of International Studies (1984), p. 175: "It seems somewhat doubtful that an investigation into State practice can reveal conclusively whether...according to the secondary rule, a generally

function, but only one that relates to political strategy and to tactics which do have weight in the law-creating process. In many ways, State practice is doomed to fail to answer our question. Unless we are to be caught up in a vicious circle, we would have to look for the consent of all States on whatever secondary rule we seek on this matter. To look at the practice of some States alone to establish any universally applicable rule on the role of consent itself presumes, rather than proves, the point, by assuming that the practice of some States is sufficient to establish a rule binding on all. But even the microcosmic survey conducted in this chapter reveals that it is difficult to speak with precision about the role of consent as a/the source of rights and obligations under customary international law.

accepted rule of customary law is binding on a state unless it persistently objects, or whether a state, unless it is a persistent objector, is presumed to have consented to it, and is therefore bound by it". On the presumption of consent, see Chapter IV, Section A, Subsection 4(ii)(b), supra.

CHAPTER VI

THE RELATIONSHIP BETWEEN GENERAL CUSTOMARY LAW