Vanderbilt Journal of Transnational Law

First Page



It may be submitted that the Helsinki Final Act is not a treaty, nor is it similar to resolutions of international organizations. In light of the language used in the text and the signatories' public expressions of intent, the human rights provisions must be deemed to have the same legal nature as the other provisions. The document as a whole falls within a special category of international legal instruments not anticipated by traditional definitions of the sources of international law--that is, non-binding, but directive texts which produce limited legal effects. Its foundation is agreement on a common objective: detente. Its provisions--not binding in themselves, though most enounce generally recognized principles of international law--cannot be separated from this primary objective.

Implementation of the Helsinki Final Act is a process, a series of progressive measures. These measures may eventually take the form of treaties which will impose specific legal obligations on the participating States. There is little doubt that the Helsinki process, embodied in its non-binding "program of action," will influence such agreements. Whether implementation of this "program" in the field of human rights will lead to the creation of customary international law is an open question. The implementing measures do not have legal significance outside the system of detente as a whole. However, since customary law develops within a context of concrete needs and relationships, it is possible, though perhaps unlikely, that the Conference on Security and Cooperation in Europe may be the vehicle for formation of such law. No categorical answer can be given on this point.