The United Nations and the Principles of International Law

Essays in Memory of Michael Akehurst

Vaughan Lowe, Colin Warbrick

• Publisher: Routledge
• Year: 2002
• ISBN:
  9781134887705
• Edition: 1
• Topic: Política y relaciones internacionales
• Subtopic: Política

With the fall of communism and the appearance of a new world order, it is hoped that the United Nations will become the principle organisation for the regulation of relations between states as well as for the settlement of conflict. The recent crises over Iraq and the continued bloodshed in the former Yugoslavia have ensured a higher profile for the United Nations but have at the same time placed great pressure on that organisation to resolve conflict and organise relations between states in a manner that is acceptable to the international community.
The essays collected in this volume are published in conjunction with the International Law Group. Providing valuable statements of the fundamentals of international law from leading authorities, they re-examine the Declaration of Principles of International Law Governing Friendly Relations Between States. The Declaration is the nearest thing that states have to an international constitution and embodies the fundamental values of the international legal system. The great changes in the international system since 1989 hold out the prospect of the reinvigoration of the Charter, perhaps for a new system of international legal relations, and make the reconsideration of the Declaration particularly timely.

1 The significance of the Friendly Relations Declaration

Sir Ian Sinclair

Michael Akehurst, to whose memory this volume of essays is dedicated, devoted several substantial articles to the problem of the sources of international law, and particularly the role of custom. One need only mention in this context his stimulating articles on ‘Custom as a source of international law’ and The hierarchy of the sources of international law’.¹ It is therefore particularly appropriate that the focus of this series of articles by some of his former friends and colleagues should be on what has popularly come to be known as the Friendly Relations Declaration,² an instrument which, although adopted by the United Nations General Assembly well over twenty years ago, has had a continuing impact and influence on the subsequent development of international law.

First let me preface my remarks by making a declaration of interest. I served as legal counsellor to the United Kingdom Mission to the United Nations in New York between the years 1964 and 1967, and indeed as United Kingdom representative to successive sessions of the Special Committee on Friendly Relations between 1964 and 1970 (omitting only the 1969 session). Thus, I was intimately involved in all stages of the elaboration of the Friendly Relations Declaration. In the present context, this has both advantages and disadvantages. The advantages stem primarily from the insight which this experience gives me as to the object and purpose sought to be achieved through the adoption of the Friendly Relations Declaration. The disadvantages stem from the consideration that this direct involvement in the formulation of the Declaration may blind me to the broader perspective from which the Declaration should be viewed. Whatever may be the balance of advantage and disadvantage, I must in any event acknowledge that, for me, it is a challenging, if occasionally chastening, experience to attempt a reassessment today of the significance of an instrument adopted as long ago as 1970.

One of the most heartening features of such a reassessment must be that it is now possible to analyse the content of the Declaration without having to take too closely into account the deep ideological divisions between West and East which were such a feature of the 1960s. It is, however, necessary to bear in mind the general international situation during the period in which the Declaration was being negotiated, since that provides the essential background against which the content of the Declaration must be assessed. In the late 1950s and early 1960s, an initiative was taken by Soviet and other Eastern European international lawyers to place on the agenda of selected non-governmental international organisations (notably, the International Law Association) items concerning the legal aspects of ‘peaceful coexistence’, a concept which bore the hallmarks of the Soviet ideology of the time.³ The debates on the legal aspects of ‘peaceful coexistence’ within the framework of the International Law Association were confused and contradictory. The proponents of the notion that an attempt should be made to codify the legal principles of ‘peaceful coexistence’ did not exactly help their cause by producing varying lists of assorted legal principles expressed at such a level of abstraction and generality as to be open to criticism, if not indeed to ridicule. Many Western international lawyers were highly sceptical of the value of this initiative, viewing with particular suspicion what they saw as the propaganda origins of the enterprise. On the other hand, many international lawyers from the Third World were attracted by the idea of seeking to articulate a ‘new’ international law which, in their view, it was necessary for the international community to construct in the wake of the advent of large numbers of newly independent states resulting from the process of decolonisation.

Matters took a new and more constructive turn when the issue surfaced in the Sixth (Legal) Committee of the UN General Assembly in 1960/1 in the context of a general debate on future work in the progressive development and codification of international law. At this time, the Sixth Committee was practically moribund. The only regular item of substance on its agenda was the annual Report of the International Law Commission, a subordinate body of distinguished legal experts elected in their personal capacity (and therefore independent of governments) to prepare proposals for the progressive development and codification of international law. The Commission was active enough in all conscience; it had by this time seen its proposals for the progressive development and codification of the law of the sea converted into the four Geneva conventions of 1958, and it was about to see (in 1961 and 1963 respectively) its draft articles on diplomatic law transformed into the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations. The Commission also had much in the way of unfinished business arising out of its long-term programme of work. By way of contrast, the Sixth Committee itself was seriously underemployed; and the arrival in its midst of the representatives of a number of newly independent states admitted to the United Nations in 1960 meant that there was growing support for exploring new methods of promoting the progressive development and codification of international law.

The resumed general debate in the Sixth Committee in 1962 served to crystallise opinion. There gradually emerged the beginnings of a consensus among delegations that a detailed study could be undertaken, within the framework of the General Assembly itself, of certain selected principles of international law embodied in the UN Charter, described as ‘the principles of international law concerning friendly relations and cooperation among States in accordance with the Charter’. Seven of these principles were selected for study, notably:

1. the principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purpose of the United Nations;
2. the principle that States shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered;
3. the duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter;
4. the duty of States to co-operate with one another in accordance with the Charter;
5. the principle of equal rights and self-determination of peoples;
6. the principle of sovereign equality of States;
7. the principle that States shall fulfil in good faith the obligations assumed by them in accordance with the Charter.⁴

It has been correctly pointed out that the agreement recorded in General Assembly Resolution 1815(XVII) to describe the legal principles in this way ‘constituted a milestone in the further development of the entire action’.⁵ As I have indicated elsewhere:

In the first place, the cumbersome title chosen for the seven principles thus identified reflected a desire on the part of the Sixth Committee to move from propaganda to substance. It was no longer sufficient to designate certain ambiguous and contradictory principles as principles of ‘peaceful coexistence’ and to claim that these represented the ‘new’ international law. In the second place, the title eventually selected for the item, and indeed the wording of the seven principles chosen for study, derived in very large measure from the language of Article 2 of the Charter. The study was accordingly to be a study of seven Charter principles. It was not to be a study at large, which would quickly lose itself in abstractions and generalities. It was rather to be an attempt to distil, from the practice of States and of the United Nations and other international organisations, whether universal or regional, the legal content of these seven principles built into the Charter system.⁶

Paragraph 3 of General Assembly Resolution 1815(XVII) in addition decided to place an item entitled ‘Consideration of principles of international law concerning friendly relations and co-operation among States in accordance with the Charter of the United Nations’ on the provisional agenda of its eighteenth (1963) session, in order to study four of the principles. This debate duly took place, and it resulted in the adoption of General Assembly Resolution 1966(XVIII) of 16 December 1963, which decided ‘inter alia’ to establish an intersessional Special Committee on Principles of International Law concerning Friendly Relations and Cooperation among States which was instructed to ‘draw up a report containing, for the purpose of the progressive development and codification of the four principles⁷ so as to secure their more effective application, the conclusions of its study and its recommendations’. The president of the General Assembly duly appointed, on the basis of the principle of equitable geographical distribution and the requirement that the principal legal systems of the world should be represented, twentyseven member states to serve on the Special Committee which met in Mexico City between 27 August and 2 October 1964.

It is unnecessary to give here a blow-by-blow account of the deliberations of the six successive intersessional meetings of the Special Committee (reconstituted in 1965 by the addition of four other member States) held in Mexico City (1964), New York (1966), Geneva (1967), New York (1968 and 1969) and Geneva (1970). The mandate of the Special Committee was enlarged in 1965 to include consideration of the three remaining principles,⁸ the Special Committee being then requested ‘to submit a comprehensive report on the seven principles…including its conclusions and recommendations, with a view to enabling the General Assembly to adopt a declaration containing an enunciation of these principles’.⁹ Interested outside observers have published accounts of the first (Mexico City) session of the Special Committee in 1964.¹⁰ Others have written on the deliberations of the second (New York) session of the Special Committee in 1966.¹¹ Others again, during the late 1960s, wrote about the more general aspects of this special exercise in the field of progressive development and codification of international law.¹²

Perhaps of greater significance in this context than these relatively ephemeral accounts of the early stages of the ‘Friendly Relations exercise’ (to give it its colloquial title) are the more considered analyses produced after the adoption of the Declaration by a number of international lawyers, several of whom had participated in the work by the Special Committee. These naturally reflect the views of their authors. Pride of place among these analyses must be given to the comprehensive course of lectures delivered by Professor Arangio-Ruiz (who had been the Italian representative at all sessions of the Special Committee) to the Hague Academy of International Law in 1973.¹³ Milan Sahovic (who had been the Yugoslav representative at all sessions of the Special Committee) also delivered a course of lectures to the Hague Academy in 1973 on the same topic,¹⁴ having previously edited a book embodying a series of studies by Yugoslav jurists on the seven principles.¹⁵ Rosenstock (one of the United States’ participants in the work of the Special Committee) produced his own analysis in 1971 ;¹⁶ and the present author published his views in an article published in 1975 (though internal evidence shows that it was prepared in 1971/2).¹⁷

These varying analyses by some of the participants in the Friendly Relations exercise reveal a wide spread of views as to the significance of the Friendly Relations Declaration. The most critical and sceptical commentator is undoubtedly Arangio-Ruiz. He distrusts intensely the procedures by which the Special Committee sought to achieve consensus texts on each of the seven principles. He forthrightly condemns the emphasis which the Special Committee put on the formulation of norms of conduct for states without attempting to reinforce the institutions of the United Nations called upon in practice to assess the extent to which states have adhered to these norms in particular cases. He is equally critical of the failure of the Special Committee to resolve points of disagreement among its members, and to disguise these points of disagreement by formulating general texts capable of a variety of interpretations in order to paper over the differences. His pronounced scepticism as to the value of the Friendly Relations Declaration is perhaps best illustrated by the following citation:

Reverting to the Declaration as a whole, the vagueness of its formulations, the scarcity of progressive content, and the lack of an adequate co-ordination between conflicting or partially conflicting principles, do not seem to recommend it as the rich and reliable source of legal policies (or de lege ferenda policies tout court) one should have expected to emerge from about seven years of a work aimed at setting a landmark in the prog...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contributors
• Foreword
• 1: The significance of the Friendly Relations Declaration
• 2: The principle of non-use of force
• 3: The principle of peaceful settlement of disputes
• 4: The principle of non-intervention: use of force
• 5: The principle of non-intervention: human rights
• 6: The principle of co-operation: the environment
• 7: The principle of co-operation: terrorism
• 8: The principle of co-operation: United Nations peacekeeping
• 9: The principle of self-determination
• 10: The principle of sovereign equality
• 11: The principle of good faith
• Appendix: Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations