foundations of international law (85-146)

194. P. G. Vallindas, “General Principles of Law and the Hierarchy of theSources of International Law”, in Grundprobleme für internationalen Rechts —Festschrift für Jean Spiropoulos, Bonn, Schimmelbusch & Co., 1957, pp. 426and 430-431.

195. Cf. Chaps. XVI to XXIII, RCADI, Vol. 317 (2005).196. A. Verdross, “Les principes généraux de droit dans le système des

sources du droit international public”, in Recueil d’études de droit internationalen hommage à Paul Guggenheim, Geneva, IUHEI, 1968, p. 525.

197. Cf., e.g., G. Tunkin, “ ‘General Principles of Law’ in International Law”,in Internationale Festschrift für A. Verdross (eds. R. Marcic et al.), Munich,Salzburg, W. Fink Verlag, 1971, pp. 525-532.

PART II

FOUNDATIONS OF INTERNATIONAL LAW

CHAPTER III

FOUNDATIONS OF INTERNATIONAL LAW : THE ROLE AND IMPORTANCE OF ITS BASIC PRINCIPLES

I. Introduction

One cannot study International Law making abstraction of itsfoundations, otherwise it would be reduced to an instrument of theestablishment of international order. International Law goes muchfurther than that, in the quest of humankind for the realization of jus-tice at both national and international levels. Nor can one study thefoundations of International Law making abstraction of its basicprinciples, which form the substratum of the legal order itself. It isindeed the principles of International Law which, permeating thecorpus juris of the discipline, render it a truly normative system.Without those principles, the norms and rules of International Lawwould not have evolved, by their implementation, into a legal sys-tem 194. Those principles inspire the evolving jus gentium, in whichbasic considerations of humanity have an important role to play 195.

Those principles are a manifestation of the international juridicalconscience, they reflect the status conscientiae of the subjects ofInternational Law 196. Although such principles (as those listed inArticle 2 of the UN Charter) may be open, given their generality, todistinct interpretations 197, they retain their importance for the proper

85

198. M. Virally, “Le rôle des ‘principes’ dans le développement du droitinternational”, in Recueil d’études de droit international en hommage àP. Guggenheim, Geneva, IUHEI, 1968, pp. 543, 546-547 and 553-554.

199. Cf., to this effect, Inter-American Court of Human Rights (IACtHR),Advisory Opinion No. 18, on The Juridical Condition and the Rights ofthe Undocumented Migrants, of 17.9.2003, Concurring Opinion of JudgeA. A. Cançado Trindade, paras. 44-58.

application of the norms and rules, and for guiding the evolution ofthe entire legal system 198, so that this latter may readjust to thechanging circumstances of international life, respond to the changingneeds of the international community, and contribute to fulfil theaspirations of humankind.

II. The Position and Role of the General Principles of Law

Every legal system has fundamental principles, which inspire,inform and conform their norms. It is the principles (derived ethmo-logically from the Latin principium) that, evoking the first causes,sources or origins of the norms and rules, confer cohesion, coher-ence and legitimacy upon the legal norms and the legal system as awhole. It is the general principles of law (prima principia) whichconfer on the legal order (both national and international) itsineluctable axiological dimension ; it is they that reveal the valueswhich inspire the whole legal order and which, ultimately, provideits foundations themselves 199. This is how I conceive the presenceand the position of the principles in any legal order, and their role inthe conceptual universe of Law.

The general principles of law entered into the legal culture, withhistorical roots which go back, for example, to Roman law, andcame to be linked to the very conception of the democratic Stateunder the rule of law, mainly as from the influence of the enlighten-ment thinking (pensée illuministe). Despite the apparent indifferencewith which they were treated by legal positivism (always seekingto demonstrate a “recognition” of such principles in positive legalorder), and despite the lesser attention dispensed to them by thereductionist legal doctrine of our days, yet one will never be able toprescind from them. From the prima principia the norms and rulesemanate, which in them find their meaning. The principles are thuspresent in the origins of Law itself, and disclose the legitimate endsto seek : the common good (of all human beings, and not of anabstract collectivity), the realization of justice (at both national and

86 A. A. Cançado Trindade

200. Principles of the dignity of the human person, of the universality andindivisibility of human rights, of the inalienability of human rights.

201. Principles of humanity, of proportionality, of distinction (between com-batants and the civil population), principle whereby the election of methods ormeans of combat is not unlimited.

202. Principles of non-refoulement, and of humanity.203. Principles of legality (nullum crimen sine lege, nulla poena sine lege),

of individual penal responsibility, of presumption of innocence, of non-retro-activity, of a fair trial.

204. E.g., principles of precaution or due dilligence, of prevention, of commonbut differentiated responsibility, of intergenerational equity, polluter-pay principle.

205. E.g., principles of common heritage of mankind (ocean floors), of peace-ful uses of the sea, of equality of rights (in the high seas), of peaceful settlementof disputes, of freedom of navigation and of inocent passage, of equidistanceand of special circumstances (delimitation of maritime spaces).

206. E.g., principles of non-appropriation, of peaceful uses and ends, ofsharing of benefits in space exploration.

207. E.g., in the legal regime applicable to foreigners, principles of the unityof the family, and of prohibition of extradition whenever this latter presents risksof violations of human rights.

208. As the principles of natural justice, of the rule of law, of the rights of thedefence, of the right to the natural judge, of the independence of justice, of theequality of all before the law, of the separation of powers, among others.

international levels), the necessary primacy of law over force,the preservation of peace. Contrary to those who attempt — in myview in vain — to minimize them, I understand that, if there are noprinciples, nor is there truly a legal system.

The identification of the basic principles has accompanied paripassu the emergence and consolidation of all the domains of Law,and all its branches (constitutional, civil, civil procedural, criminal,criminal procedural, administrative, and so forth). This is so withPublic International Law (cf. infra), with the International Law ofHuman Rights 200, with International Humanitarian Law 201, withInternational Refugee Law 202, with International Criminal Law 203.However circumscribed or specialized a legal regime may be, itsbasic principles can there be found, as, for example, in InternationalEnvironmental Law 204, in the Law of the Sea 205, in the Law of OuterSpace 206, among others 207. The International Labour Organization(ILO) itself, for example, has sought to identify the fundamentalprinciples and rights in work, by means of a Declaration adopted inJune 1998.

Some of the basic principles are proper to certain areas of Law,others permeate all areas. The corpus of legal norms (national orinternational) operates moved by the principles, some of them rulingthe relations themselves between human beings and the publicpower 208. The principles enlighten the path of legality as well as

General Course on Public International Law 87

209. F. Castberg, “Natural Law and Human Rights”, 1 Revue des droits del’homme/Human Rights Journal (1968), p. 37, and cf. pp. 21-22.

210. Cf., e.g., L. Le Fur, “La théorie du droit naturel depuis le XVIIe siècle etla doctrine moderne”, 18 RCADI (1927), pp. 297-399 ; A. Truyol y Serra,“Théorie du droit international public. Cours général”, 183 RCADI (1981),pp. 142-143 ; A. Truyol y Serra, Fundamentos de Derecho InternacionalPúblico, 4th rev. ed., Madrid, Tecnos, 1977, pp. 69 and 105.

211. J. A. Carrillo Salcedo, “Derechos Humanos y Derecho Internacional”,22 Isegoría — Revista de Filosofía Moral y Política, Madrid (2000), p. 75.

212. G. Abi-Saab, “Cours général de droit international public”, 207 RCADI(1987), p. 378.

legitimacy. Hence the constant reaffirmation or restoration, pur-suant to the evolving natural law thinking, of a standard of justice,heralded by the general principles of law, whereby positive lawhas come to be evaluated. In sustaining that opinio juris is abovethe “will” of the State, F. Castberg has correctly pondered that

“the experiences of our own age, with its repellent cruelties andinjustice under cover of positive law, have in fact confirmed theconviction that something — even though it is only certainfundamental norms — must be objectively valid. This mayconsist of principles which appear to be valid for every humancommunity at any time . . . The law can and should itselfmove forward in the direction of . . . a higher level of human-ity.” 209

This perennial resurgence of the natural law outlook 210 has beenmuch contributing to the affirmation and consolidation of the pri-macy, in the order of values, of the obligations pertaining to humanrights, vis-à-vis the international community as a whole 211. Generalprinciples of law have contributed to the formation of normative sys-tems of protection of the human person. A true legal system ought tooperate on the basis of its fundamental principles 212. Recourse tosuch principles, endowed with continuing validity, has taken place,at the substantive level, as a response to the new necessities of pro-tection of the human being. In the case, for example, of the armedconflicts in Central America, which broke out in the late seventiesand aggravated in the region in the early eighties, generatinghundreds of thousands of refugees and displaced persons, one ofthe major concerns of the UN High Commissioner for Refugees(UNHCR) was to establish its grounds of action for providing pro-tection and assistance to those in need of it, on the basis of the prin-ciples and criteria which should guide its action. On two occasions


213. Formed by H. Gros Espiell, S. Picado and L. Valladares Lanza.214. Restated in the 1994 San José Declaration on Refugees and Displaced

Persons ; cf. Diez Años de la Declaración de Cartagena sobre Refugiados(Memoria del Coloquio Internacional, San José, Costa Rica, 1994), San José,Costa Rica, UNHCR, IIHR, 1995, pp. 11-470.

215. Formed by A. A. Cançado Trindade, R. Galindo-Pohl and C. Sepúlveda.216. UNHCR, I. Principios y Criterios para la Protección y Asistencia a los

Refugiados, Repatriados y Desplazados Centroamericanos en América Latina/II.Evaluación de la Puesta en Práctica de las Disposiciones de Dicho Documento,San José, Costa Rica, UNHCR, 1994, pp. 2 and 7-9 (1st doc.), and pp. 5-8 (2nddoc.).

217. J. Pictet, Développement et principes du droit international humanitaire,Geneva, Paris, Inst. H.-Dunant, Pedone, 1983, pp. 104-105, and cf. pp. 8, 53,68-69 and 73-74.

the UNHCR dwelt upon the examination of such principles and cri-teria to guide the application of the norms and rules of InternationalRefugee Law in the aforementioned case of the armed conflicts inCentral America.

In a document adopted in 1989 resulting from consultations of agroup of experts 213, reference was made to the principles containedin the 1984 Cartagena Declaration on Refugees 214, complemented bythe practice of the affected States and of international organizations.Half a decade later, in a new document, adopted in 1994, also result-ing from consultations of another group of experts 215, an assess-ment was undertaken of the application of those principles. In bothdocuments the UNHCR stressed the fundamental importance ofthe principle of non-refoulement, cornerstone of refugee protection,applicable irrespectively of the any formal determination of thecondition of refugee by a State or an international organization,and largely regarded as belonging to the domain of jus cogens 216.The perennial search for the guiding principles and the care and atten-tion to the need of compliance with them, and with the norms andrules ensuing therefom, are revealing of the belief in their continuingvalidity.

In International Humanitarian Law, for example, the 1949 GenevaConventions and their Protocols of 1977, essentially victim-oriented,are inspired above all by the overriding principle of humanity, whichcalls for respect to the human person in any circumstances and atall times. As well pointed out by J. Pictet, the general principles inthis domain permeate the whole corpus juris of InternationalHumanitarian Law, which discloses a “caractère impératif (juscogens) et non dispositif” 217 ; those principles are, ultimately, identi-fied with the very foundations of International Humanitarian Law. In


218. On the basis of obiter dicta of the International Court of Justice (ICJ) inthe Nicaragua v. United States case (1986).

219. R. Abi-Saab, “Les ‘principes généraux’ du droit humanitaire selon laCour internationale de Justice”, 766 Revue internationale de la Croix-Rouge(1987), pp. 386 and 389.

220. On the wide scope of the opinio juris in the formation of contemporaryInternational Law, cf. Chaps. V-VI, infra.

221. G. Cohen-Jonathan, “Le rôle des principes généraux dans l’interpréta-tion et l’application de la Convention européenne des droits de l’homme”, inMélanges en hommage à L. E. Pettiti, Brussels, Bruylant, 1998, pp. 192-193 ;M. Koskenniemi, “General Principles : Reflexions on Constructivist Thinking inInternational Law”, in Sources of International Law (ed. M. Koskenniemi),Aldershot, Ashgate, Dartmouth, 2000, pp. 360-365, 377, 381, 387, 390 and 395-398.

222. A. Favre, “Les principes généraux du droit, fonds commun du droit desgens”, in Recueil d’études de droit international en hommage à P. Guggenheim,Geneva, IUHEI, 1968, pp. 374-376, and cf. pp. 369 and 379.

this connection, it has been persuasively argued 218 that, rather thanattempting to identify provisions of the 1949 Geneva Conventions,or of the 1977 Additional Protocols, that might be regarded asexpressing general principles, one ought to consider the whole ofthose Conventions and other humanitarian law treaties as being theexpression — and the development — of those general principles,applicable in any circumstances, so as to secure a more effectiveprotection of the victimized 219.

III. The Fundamental Principles as Substratumof the Legal Order Itself

The general principles of law have thus inspired not only theinterpretation and the application of the legal norms, but also thelaw-making process itself of their elaboration. They reflect theopinio juris, which, in its turn, lies on the basis of the formation ofLaw 220. Such principles mark presence at both national and interna-tional levels.

There are fundamental principles of law which identify themselveswith the very foundations of the legal system, revealing the valuesand ultimate ends of the international legal order, guiding it, pro-tecting it against the incongruencies of the practice of States, andfulfilling the necessities of the international community 221. Suchprinciples, as expression of an objective “idea of justice”, have auniversal scope, requiring the observance of all States, and securing— as lucidly pointed out by A. Favre in 1968 — the unity of Law,as from the idea of justice, to the benefit of the whole humankind 222.


223. Op. cit. supra footnote 222, pp. 376-380, 383, 386 and 389-390.224. And it could not be otherwise, as human rights are universal and inher-

ent to all human beings, while the rights of citizenship vary from countryto country and encompass only those which the positive law of the State con-siders citizens. In its memorable Advisory Opinion No. 18 on The JuridicalCondition and the Rights of the Undocumented Migrants (of 17.9.2003), theInter-American Court of Human Rights (IACtHR) has expressly referred tothe principles of the dignity of the human person and of the inalienability ofthe rights inherent to her (para. 157). Moreover, in its jurisprudence con-stante, the IACtHR, in interpreting and applying the American Convention, hasalso always resorted to the general principles of law ; cf., e.g., IACtHR, caseof the Five Pensioners v. Peru (Judgment of 28.2.2003), para. 156 ; and cf.also IACtHR, Advisory Opinion No. 17, on the Juridical Condition and HumanRights of the Child (of 28.8.2002), paras. 66 and 87 ; IACtHR, Advisory OpinionNo. 16, on The Right to Information on Consular Assistance in the Frame-work of the Guarantees of the Due Process of Law (of 1.10.1999), paras. 58,113 and 128. Among these principles, those which are endowed with a truly fun-damental character, referred to herein, form in reality the substratum ofthe legal order itself, revealing the right to the Law of which are titulaires allhuman beings ; A. A. Cançado Trindade, Tratado de Direito Internacional dosDireitos Humanos, Vol. III, Porto Alegre, Brazil, S.A. Fabris Ed., 2003, pp. 524-525.

225. B. Maurer, Le principe de respect de la dignité humaine et la Conventioneuropéenne des droits de l’homme, Paris, CERIC, Univ. d’Aix-Marseille, 1999,p. 18.

It is evident that these principles of law do not depend on the “will”,nor on the “agreement”, nor on the consent, of the subjects of law ;the fundamental rights of the human person are the “necessary foun-dation of every legal order” 223.

As vehemently proclaimed by the 1948 Universal Declaration ofHuman Rights, in a rare moment of enlightenment,

“All human beings are born free and equal in dignity andrights. They are endowed with reason and conscience andshould act towards one another in a spirit of brotherhood.”

The safeguard and prevalence of the principle of respect of the dig-nity of the human person are identified with the end itself of Law, ofthe legal order, both national and international. By virtue of this fun-damental principle, every person ought to be respected by the simplefact of belonging to the human kind, independently of her condition,of her statute of citizenship or her migratory status 224, or any othercircumstance 225.

The principle of the inalienability of the rights inherent to the humanbeing, in turn, is identified with a basic premise of the constructionof the whole corpus juris of the International Law of HumanRights.


226. M. Chemillier-Gendreau, “Principe d’égalité et libertés fondamentalesen droit international”, in Liber Amicorum Judge M. Bedjaoui (eds. E. Yakpoand T. Boumedra), The Hague, Kluwer, 1999, pp. 659-669.

227. Cf. Chap. XII, infra.228. R. Kolb, Théorie du jus cogens international, Paris, PUF, 2001, pp. 98,

104-105 and 110-112.229. And referred, in this connection, to the Separate Opinion of Judge

Schücking in the Oscar Chinn case (1934) before the Permanent Court ofInternational Justice (PCIJ) ; cf. A. Verdross, “Les principes généraux du droitdans la jurisprudence internationale”, 52 RCADI (1935), pp. 206 and 243.

230. A. Verdross, “Les principes généraux du droit . . .”, op. cit. supra foot-note 229, pp. 202-203, and cf. p. 222.

231. Ibid., pp. 224 and 227 ; he added that one is to be led by such “idée fon-damentale du droit” (ibid., p. 235).

If, by chance, any doubts are raised as to the extent of applicationof the fundamental principles which permeate the whole interna-tional legal order, it is the function of the jurist to clarify such doubtsand not to perpetuate them, so that Law may accomplish its funda-mental function of providing justice 226. It is certain that the normsare the ones juridically binding, but when they move away from theprinciples, their application leads to breaches of individual rightsand to serious injustices (for example, discrimination de jure), andone incurs into distortions, and grave violations of the legal order atissue itself.

In reality, when one recognizes the fundamental principles whichconform the substratum of the legal order itself, we enter into thedomain of jus cogens, of peremptory law 227 ; such principles areindispensable (the jus necessarium), are prior and superior to thewill ; they express the idea of an “objective justice” (proper of natu-ral law), and are consubstantial to the international legal orderitself 228. Already in 1935, in his lectures delivered at the HagueAcademy of International Law, A. Verdross invoked the “generalprinciple of jus cogens” 229. In dismissing the voluntarist conceptionof International Law, he sustained that

“il faut reconnaître que l’idée du droit ne peut entrer dans la viehumaine que par l’intermédiaire d’une conscience humaine quila formule . . . Le droit des gens ne peut avoir d’autre base quetout droit, à savoir, l’idée du droit et les principes qui endécoulent.” 230

Those principles are “recognized by the juridical conscience”, and itis in the light of those principles that “tout le droit des gens doit êtreinterprété et appliqué” 231.


232. PCIJ, Advisory Committee of Jurists, Procès-Verbaux of the Proceedingsof the Committee (16 June/24 July 1920) with Annexes, The Hague, Van Langen-huysen Brothers, 1920, p. 294.

233. Ibid., p. 294. E. Root retorted that the world was not yet prepared toaccept the compulsory jurisdiction of a Court which would apply “universallyrecognized rules” and “principles, differently understood in different countries” ;ibid., pp. 308-309.

234. Ibid., pp. 310-311.

IV. The Acknowledgment of General Principles of Law by theStatute of the Hague Court (PCIJ and ICJ)

1. General principles of law and the quest for justice

In the course of the drafting of the Statute of the Permanent Courtof International Justice (PCIJ), in June-July 1920, the AdvisoryCommittee of Jurists entrusted with that task, throughout the mem-orable debates pertaining to the “sources” of International Law(Article 38 of the Statute), dwelt upon the role of principles in anylegal system (whether at domestic or at international level). From thestart, E. Root argued that the Committee should limit itself to “rulescontained in conventions and positive international law”, otherwisethe States, in his view, would not accept its draft 232. In opposition tothis view, M. Loder remarked that there were recognized rules whichwere “not yet of the nature of positive law”, but were respected allover the world, and it was the duty of the Court (PCIJ) to developthe law, to “ripen . . . principles universally recognised”, so as to“crystallise them into positive rules” 233. The Committee’s President,Baron Descamps, pondered that the law of nations was formed notonly by recognized rules, “but also by the demands of public con-science” ; and as to E. Root’s statement that “the principles of justicevaried from country to country”, Baron Descamps replied signifi-cantly that

“that might be partly true as to certain rules of secondaryimportance. But it is no longer true when it concerns the fun-damental law of justice and injustice deeply engraved on theheart of every human being and which is given its highest andmost authoritative expression in the legal conscience of civi-lized nations.” 234

That, in Descamps’s view, was the law which could not be dis-regarded by judges, and “it would be incumbent on them to consider


235. Op. cit. supra footnote 232, pp. 311 and 318-319.236. Ibid., p. 335.237. Ibid., pp. 345-346.238. Ibid., p. 346.239. E.g., bona fides, res judicata, equality before the law, presumption of

innocence, prohibition of abuse of rights, among others.

whether the dictates of their conscience” were in agreement with theprevailing conception of justice. To him, judges should render theirdecisions in conformity with the dictates of “the legal conscience ofcivilised nations” 235. To Lord Phillimore, in turn, the general prin-ciples of law (referred to in the proposed draft) were those“which were accepted by all nations in foro domestico” 236. Seekinga conciliation of the views expressed, on the one hand, byBaron Descamps, and, on the other hand, by E. Root, Raul Fernandesargued that if the judges were confined to apply only treaties andpositive international law (as suggested by E. Root), in many casesthe “possibility of administering justice” in legal relations betweenStates would be “taken away from them” ; more often than notjudges would find it necessary to resort to guiding general prin-ciples, because the principles are always based on justice, whilestrict law often departs from it” 237.

In international affairs — added R. Fernandes — where “legisla-tion is lacking” and customary law is of a rather slow formation,“the practical necessity of recognizing the application of such prin-ciples is much greater” ; in any case — he concluded — the Court(PCIJ) could not become a “registry” for the “acts of the strongagainst the weak” 238. At the end of the Committee’s work, thegeneral principles of law were acknowledged as integrating theformal “sources” of International Law listed in Article 38 ofthe Statute of the Hague Court (the PCIJ, and, later, the ICJ).

In this understanding, they were taken to mean, basically, thoseprinciples of law found in foro domestico, in the national legal sys-tems 239. Parallel to them, the international legal system itself hasevolved in the light of certain fundamental principles, distinct fromthe general meaning attributed to general principles of law (supra),although some of these latter have been transposed to internationalprocedural law as well. While admitting channels of communicationbetween the two sets of principles, principles of International Lawcan be appropriately approached in a distinct way, not only strictlyas one of the formal “sources” of International Law, but, beyond


240. An exposé de motifs of a declaration of principles of International Law,published on the eve of the outbreak of the World War II, called for a recon-struction of International Law bearing in mind not only positive law, but also theprinciples, which oriented legal norms and rules, and which, in the view ofAlejandro Álvarez, prevailed in the whole of International Law, and appeared as“manifestations of the juridical conscience of the peoples” ; A. Álvarez, Exposéde motifs et Déclaration des grands principes du droit international moderne,2nd ed., Paris, Eds. internationales, 1938, pp. 8-9 and 16-23, and cf. pp. 27 and51. And cf., generally, e.g., L. Rodrigues Pereyra, Princípios de DireitoInternacional, Vols. I and II, Rio de Janeiro, J. Ribeiro dos Santos Ed., 1902 and1903 ; C. Bevilaqua, Direito Público Internacional (A Synthese dos Princípios ea Contribuição do Brasil), Rio de Janeiro, Livr. Fr. Alves, 1911 ; T. J. Lawrence,Les principes de droit international, 5th ed. (trans. J. Dumas and A. de LaPradelle), Oxford, University Press, 1920, pp. 99-120 ; P. Derevitzky, Lesprincipes du droit international, Paris, Pedone, 1932 ; Ch. Rousseau, Principesgénéraux du droit international public, Vol. I, Paris, Pedone, 1944 ; Bin Cheng,General Principles of Law as Applied by International Courts and Tribunals,London, Stevens, 1953 ; G. Scelle, Précis de droit des gens — principes et systé-matique, Paris, Rec. Sirey, 1934.

241. Cf. H. Rolin, “Les principes de droit international public”, 77 RCADI(1950), pp. 309-479 ; G. Schwarzenberger, “The Fundamental Principles ofInternational Law”, 87 RCADI (1955), pp. 195-385 ; P. Guggenheim, “Lesprincipes de droit international public”, 80 RCADI (1952), pp. 5-189 ;Ch. Rousseau, “Principes de droit international public”, 93 RCADI (1958),pp. 369-549 ; G. Fitzmaurice, “The General Principles of International Law,Considered from the Standpoint of the Rule of Law”, 92 RCADI (1957), pp. 1-223.

242. Cf. M. Sørensen, “Principes de droit international public”, 101 RCADI(1960), pp. 1-251 ; P. Reuter, “Principes de droit international public”, 103RCADI (1961), pp. 429-656 ; R. Y. Jennings, “General Course on Principles ofInternational Law”, 121 RCADI (1967), pp. 327-600.

that, as further pertaining to the substratum of all international legalnorms, and, accordingly, to the very foundations of the internationallegal system.

2. Principles of International Law as pillars of the internationallegal system

Notwithstanding, considerably more attention was devoted to theprinciples of International Law half a century ago than in our days.Yet, those principles retain their utmost importance, as they informand conform the legal norms of any legal system. Successive doctri-nal works were dedicated particularly to the study of the principlesof International Law, already in the first half of the twentiethcentury 240, in the framework of the foundations of the discipline andthe consideration of the validity of its norms. In the fifties 241 andthe sixties 242 some courses delivered at the Hague Academy ofInternational Law addressed the theme of the principles of Inter-


243. Cf. M. Miele, Principi di Diritto Internazionale, 2nd ed., Padua, Cedam,1960 ; L. Delbez, Les principes généraux du contentieux international, Paris,LGDJ, 1962 ; L. Delbez, Les principes généraux du droit international public,3rd ed., Paris, LGDJ, 1964 ; H. Kelsen, Principles of International Law, 2nd ed.,New York, Holt Rinehart & Winston, 1966 ; W. Friedmann, “The Uses of‘General Principles’ in the Development of International Law”, 57 AmericanJournal of International Law (1963), pp. 279-299 ; M. Virally, “Le rôle des‘principes’ dans le développement du droit international”, Recueil d’études dedroit international en hommage à Paul Guggenheim, Geneva, IUHEI, 1968,pp. 531-554 ; M. Bartos, “Transformations des principes généraux en règlespositives du droit international”, Mélanges offerts à Juraj Andrassy, La Haye,Nijhoff, 1968, pp. 1-12.

244. Cf., e.g., B. Vitanyi, “La signification de la ‘généralité’ des principes dedroit”, 80 Revue générale de droit international public (1976), pp. 536-545.

245. Cf., e.g., I. Brownlie, Principles of Public International Law, 6th ed.,Oxford, Clarendon Press, 2003 ; A. A. Cançado Trindade, Princípios do DireitoInternacional Contemporâneo, Brasilia, Edit. University of Brasilia, 1981.

246. Cf., e.g., inter alia, H. Thierry, “L’évolution du droit international.Cours général de droit international public”, 222 RCADI (1990), pp. 123-185 ;G. Abi-Saab, “Cours général de droit international public”, op. cit. supra foot-note 212, pp. 328-416.

247. G. Herczegh, General Principles of Law and the International LegalOrder, Budapest, Akadémiai Kiadó, 1969, pp. 90, 122 and 126.

248. Cf. M. Lachs, “Le vingt-cinquième anniversaire du traité régissant lesprincipes du droit de l’espace extra-atmosphérique, 1967-1992”, 184 Revuefrançaise de droit aérien et spatial (1992), No. 4, pp. 365-373, esp. pp. 370 and372.

national Law, which was retaken in monographs in the sixties 243 andthe seventies 244. Subsequently, except for a few works 245, thereappeared to occur, rather surprisingly, a decline in the interest in thestudy of the matter, parallel to the dissemination of a seemingly —and regrettable — pragmatic approach to the study of International Law.

Although concern with the need to consider the principles ofInternational Law appears to have declined in the last quarter of acentury, those principles have, nevertheless, always marked theirpresence in the doctrine of International Law, including the contem-porary one 246. Principles of International Law permeate the entireinternational legal system, playing an important role in internationallaw-making as well as in the application of International Law 247. Insome cases, such as, for example, in the Law of Outer Space, theyhave paved the way for the construction of a new corpus juris, in anew domain of International Law which required regulation, and theprinciples originally proclaimed have fully retained their value to date248.

Principles of International Law are guiding principles of generalcontent, and in that they differ from the norms or rules of positiveInternational Law, and transcend them. As basic pillars of the inter-national legal system (as of any legal system), those principles give


249. G. M. Danilenko, Law-Making in the International Community,Dordrecht, Nijhoff, 1993, pp. 7, 17 175 and 186-187, and cf. p. 215.

250. Bin Cheng, General Principles of Law . . ., op. cit. supra footnote 240,p. 393.

251. The Committee was set up on 16.12.1963 as a subsidiary organ of the VICommittee of the General Assembly, and composed of representatives of States ;initially, in 1964, 27 Delegations, and in the following year having arisen to 31,with geographical distribution, namely : Western Europe and North America, 8 ;Africa, 7 ; Asia, 6 ; Latin America, 5 ; and Eastern Europe, 5.

252. Cf. M. Šahović, “Codification des principes du droit international desrelations amicales et de la coopération entre les Etats”, 137 RCADI (1972),pp. 262-263, 272 and 274 ; R. Rosenstock, “The Declaration of Principles ofInternational Law concerning Friendly Relations : A Survey”, 65 AmericanJournal of International Law (AJIL) (1971), p. 735.

expression to the idée de droit, and furthermore to the idée de jus-tice, reflecting the conscience of humankind 249. Irrespective of thedistinct approaches to them, those principles stand ineluctably at asuperior level to the norms or rules of positive international law.Such rules and norms are binding, but it is the principles whichguide them 250. Without these latter, rules or techniques could servewhatever purposes. This would be wholly untenable.

V. The 1970 UN Declaration on Principles of International Lawconcerning Friendly Relations and Co-operation

among States Revisited

1. General considerations in historical perspective

A quarter of a century after the adoption of the United NationsCharter, the principles set forth therein were restated in theDeclaration on Principles of International Law concerning FriendlyRelations and Co-operation among States in Accordance with theUnited Nations Charter, adopted by the UN General Assembly on24 October 1970. State representatives undertook the task of restat-ing those principles, pursuant to consultations and proposals madeby the UN General Assembly (1960-1962). The travaux prépara-toires were entrusted to the Special Committee on Principles ofInternational Law concerning Friendly Relations and Co-operationamong States, established in 1963 251. The Special Committee heldsix sessions in the period between 1964 and 1970, which led to theadoption of the Declaration, that purported to reflect the prevailingopinio juris communis on the principles of International Lawembodied therein 252.


253. M. Šahović, “Codification des principes . . .”, op. cit. supra foot-note 252, pp. 255-261 ; and cf. J. Castañeda, “The Underdeveloped Nationsand the Development of International Law”, 15 International Organization(1961), pp. 38 and 44-48.

254. E.g., 1960 Declaration on the Granting of Independence to ColonialCountries and Peoples, 1962 Declaration on Permanent Sovereignty of Statesover Their Natural Resources, and 1965 Declaration on the Inadmissibility ofIntervention in the Internal Affairs of States and the Protection of TheirIndependence and Sovereignty ; cf. G. Arangio-Ruiz, “The Normative Role ofthe General Assembly of the United Nations and the Declaration of Principles ofFriendly Relations”, 137 RCADI (1972), pp. 431-432.

255. Although its formulation of the principles (1970 Declaration) was notidentical to that of the principles set forth in Article 2 of the UN Charter.

256. H. Blix, “The Helsinki Declaration on Principles Guiding Relationsbetween States in Europe”, 31 Revue égyptienne de droit international (1975),p. 4, and cf. pp. pp. 1-15.

257. UN doc. A/6547, paras. 24-25.

The Declaration was formulated and adopted in an internationalscenario marked by the historical phenomenon of decolonization, thearticulation of the non-aligned movement, the nuclear stalemate, andthe endeavours to secure the peaceful co-existence of all States 253.Its preparatory work, which started in Mexico City in 1964, andended in 1970, benefited from other historically importantDeclarations adopted by the UN General Assembly 254. The debateson the matter disclosed the prevailing view whereby the 1970Declaration was to constitute an “authentic interpretation” of the UNCharter and a restatement of its principles 255, which were to have abearing on subsequent custom as well as treaty-making 256, beingthus regarded also as an exercise of “progressive development” ofInternational Law 257.

The seven paragraphs of Article 2 of the UN Charter listed respec-tively seven basic principles, namely : equality of all the memberStates of the United Nations ; compliance in good faith with theobligations undertaken in accordance with the Charter ; peacefulsettlement of international disputes ; prohibition of the use or threatof force against the territorial integrity or political independence ofany State ; assistance to the United Nations in an operation whichit may resort to ; guarantee that non-member States act in accord-ance with such principles ; non-intervention by the United Nationsin matters which fall under the domestic jurisdiction of any State(except for enforcement measures under Chapter VII of the Charter).In its turn, the 1970 Declaration set forth the following seven funda-mental principles : prohibition of, or renunciation of, the use or threatof force in international relations ; peaceful settlement of interna-


258. Cf. L. T. Lee, “The Mexico City Conference of the UN SpecialCommittee on Principles of International Law concerning Friendly Relationsand Cooperation among States”, 14 International and Comparative LawQuarterly (1965), pp. 1296 et seq.

259. It need only be recalled that the decade had been particularly disturbed,by episodes such as the war of Vietnam, the Arab-Israeli conflict, the Cubanmissile crisis, added to those of the Dominican Republic and of Czechoslovakia,among others.

260. UN doc. A/6547, para. 34 ; and cf. UN doc. A/6955, para. 32.261. UN doc. A/6955, paras. 31 and 123. In fact, in the Special Committee’s

debates of 1967 one of the delegates saw it fit to warn, in 1967, as if in antici-pation of what was actually to occur three years later, that only if the DraftDeclaration of Principles was ultimately adopted by the General Assembly withunanimous or quasi-unanimous approval could it be said that it expressed a“universal juridical conviction” to be thus related to the “sources” ofInternational Law set forth in Article 38 (1) (c) of the ICJ Statute. UN doc.A/6955, para. 109.

262. Cf. UN doc. A/6955, para. 30.

tional disputes ; non-intervention ; duty of international co-operation ;equality of rights and self-determination of peoples ; sovereign equal-ity of States ; good-faith in the compliance with international obli-gations.

Already in its first session (Mexico City, 1964), the SpecialCommittee was clearly aware of the hard task before it 258, amidst thethreat of destruction of humankind by the arms race, the need forpeaceful co-existence among States with different socio-economicsystems, the decolonization process, and initiatives of the epoch tofoster development 259 — added to other changes that had occurred atinternational level in the previous two decades. In the session ofNew York of 1966, it was recommended to bear constantly in mindthe interrelationship between the principles to be formulated 260. Inthe Special Committee’s third session (Geneva, 1967), the DraftDeclaration was related to the chapter of the “sources” of “universalInternational Law” 261. The fact that the Special Committee and theVI Committee of the General Assembly succeeded in concludingtheir work, under the pressure of events, in such a turmoiled environ-ment, should not pass unnoticed : looking back in time, in histori-cal perspective, it appears much to their credit to have restated in1970, on the basis of consensus 262, the needed principles concerningfriendly relations and co-operation among States in accordance withthe UN Charter.

Today, 35 years having lapsed since the adoption of that memor-able Declaration on Principles, the question may be raised whether,and to what extent, the principles set forth therein are still recog-


263. For a fuller account, cf., e.g., A. A. Cançado Trindade, Princípios doDireito Internacional Contemporâneo, Brasilia, Edit. University of Brasilia,1981, pp. 51-94.

264. Within the Committee, there were those who considered that principle,together with that of equality of rights and self-determination of peoples, andthat of non-intervention in the domestic affairs of States, as “the three mostimportant principles for the maintenance of international peace and security” ;UN doc. A/6955, para. 23.

265. Ibid., para. 37.266. UN doc. A/7809, para. 14.267. Including the provision of Article 17 of the OAS Charter, which cate-

gorically affirmed the principle of the territorial inviolability of the State andcondemned measures of force. Cf., on the matter, e.g. : OAS doc. OEA/Ser.I/VI.2 — CIJ-58, Inter-American Juridical Committee, “Opinion on theLegal Aspects of the Draft Declaration on Non-Intervention Presented by theMexican Delegation”, of 22.9.1960, pp. 1-12 ; Comité Jurídico Interamericano,“Diferencias entre Intervención y Acción Colectiva”, in Recomendaciones eInformes, Documentos Oficiales, Vol. IX, Opinion of 23.9.1965, pp. 111-127.

268. UN doc. A/6955, para. 44.

nized as such. In order to address this question, and for a betterappreciation of the principles enshrined into the 1970 Declaration, itwould be adequate to recall, albeit succintly 263, the main points ofthe long preparatory work of the UN Special Committee on thePrinciples of International Law concerning Friendly Relations andCo-operation among States, with special attention to the process offormulation of those principles.

2. The formulation of the principles of International Law

Throughout the whole work of the Special Committee, one of themost widely debated of the seven principles enunciated was that ofthe prohibition of the use or threat of force in international rela-tions 264. The principle at issue, set forth in Article 2 (4) of the UNCharter, was regarded as “the foundation of the international juridi-cal order” 265, integrating “the very essence of International Law, ina world of interdependent States . . . in which the arms race con-tinued” 266. The Special Committee debates kept in mind, besidesArticle 2 (4) of the UN Charter, further express references to theprinciple of non-use or threat of force found in some inter-Americaninstruments 267, in the 1964 Cairo Declaration of the Non-AlignedCountries, and in the 1949 Draft Declaration on the Rights andDuties of States prepared by the UN International Law Commission(ILC) 268. Other references were further made, for example, to thecondemnation, by both the UN General Assembly and the Security


269. Resolution 2160 (XXI) of 1966 of the UN General Assembly wasrecalled, more than once ; cf. ibid., paras. 37, 41, 44 and 48.

270. Cf. UN docs. A/7809, para. 15 ; A/6547, paras. 41 and 43 ; A/6165,para. 31 ; A/6955, para. 49.

271. UN doc. A/6955, para. 49. In this respect, cf. comments, on resolutions1514 (XV) and 2621 (XXV) of the UN General Assembly, of A. Rigo Sureda,The Evolution of the Right of Self-Determination, Leiden, Sijthoff, 1973,pp. 261-264 ; and cf. also S. Calogeropoulos-Stratis, Le droit des peuples à dis-poser d’eux-mêmes, Brussels, Bruylant, 1973, pp. 120-133 ; U. O. Umozurike,Self-Determination in International Law, Hamden, Conn., Archon Books, 1972,pp. 3-299.

272. R. Rosenstock, op. cit. supra footnote 252, p. 720.273. Cf. UN doc. A/AC.125/L.16, para. 2. On the Czech initiative, cf. also

P.-H. Houben, “Principles of International Law concerning Friendly Relationsand Co-operation among States”, 61 AJIL (1967), pp. 705-706.

274. International instruments going back to the 1928 Briand-Kellogg Pact.Several representatives stressed the need to invoke, in the formulation of theprinciple, the “responsibility of States which waged wars of aggression or com-mitted other crimes against peace” ; UN doc. A/6955, para. 42.

Council, of the use or threat of force by certain States on some occa-sions 269.

Despite all these elements, the debates of the Special Committeedid not pass without difficulty, particularly when tackling the use offorce in “colonial situations”, raised by the (then) recently emanci-pated States 270. To some representatives (particularly from Afro-Asian States)

“self-defence against colonial domination should be regardedas an exception to the general rule, since . . . colonialism wasan act of force and constituted indeed an aggression” 271.

On this specific point, at the end of four years of debates, the viewprevailed among the participating Delegations that, in the world ofthat time, the expression “international relations” could no longer belimited to purely inter-State relations, since, for example, relationsbetween a non-self-governing territory and an authority entrustedwith its administration had an “international character”, in the lightof the “international responsibilities” set forth in Chapter XI of theUN Charter 272.

The condemnation of the “war of aggression” was peremptory, anda proposal by (then) Czechoslovakia to this effect 273 found no diffi-culty to be approved, given the precedents in international prac-tice 274. One participant, in dwelling upon the historical evolution ofthe principle proclaimed in Article 2 (4) of the UN Charter, affirmedthat “in contemporary International Law the prohibition of the use of


275. Op. cit. supra footnote 274, para. 38. 276. E.g., it was pointed out that the prohibition of threat or use of force

should refer “not only to (national) frontiers but also to other international linesof demarcation” ; UN docs. A/6547, para. 41, and A/6165, para. 22 ; as exempli-fied by what was occurring, in those days, e.g., in Vietnam, Korea, Germany,and the Middle East.

277. Cf. UN doc. A/6547, para. 37 (“armed force”) ; cf. further, UN docs.A/6165, para. 25 ; A/7809, para. 20 ; A/6547, para. 38 (“political or economicpressure”). And cf. UN docs. A/6955, para. 41 ; A/6547, para. 38.

278. The same uncertainties were to be found also in expert writing, disclos-ing either a wider interpretation of the prohibition of force (G. Arangio-Ruiz,“The Normative Role . . .”, op. cit. supra footnote 254, pp. 529-530), or a ratherstricter one (R. Rosenstock, “The Declaration of Principles . . .”, op. cit. suprafootnote 252, pp. 724-725).

279. For the insistence on this last point, cf., e.g., UN docs. A/6547, para. 47 ;and A/6165, para. 34. And cf., generally, e.g., UN docs. A/6230, paras. 157-272 ;and A/5746, paras. 128-201.

280. UN doc. A/6165, para. 33.281. UN doc. A/6547, para. 49 ; on the element of good faith in the peaceful

settlement of disputes, cf. ibid., para. 50.

force had become a norm of jus cogens” 275. Other points were con-sidered 276 : as to the meaning and scope to be attributed to the term“force”, for example, in the long debates that took place 277 most rep-resentatives of Afro-Asian States, and of Eastern European States,and of some Latin American States, favoured such a wide interpre-tation of the prohibition of “force”, while a more restrictive interpre-tation was supported by the delegates of Western States, some otherLatin American States and other individual States. The 1970 Decla-ration did not manage to provide a clear answer to the problem — inthe view of some deliberately — in opting for a rather more abstractdrafting of the principle at issue so as to overcome the difficulty 278.

In the debates on the formulation of the second principle, thatof peaceful settlement of international disputes, the old maxim wasreiterated that the acceptance by States of a given procedure ofpeaceful settlement of existing or future disputes, which they wereparties to, should not be regarded as incompatible with the“sovereign equality of States” 279. Some Delegations argued that

“negotiation, mediation and conciliation were methods whichcould be used to alter an existing juridical situation, while themethods of arbitration and judicial settlement applied the lawas it existed” 280.

Different views were expressed on the effectiveness of negotia-tions 281, and references were made to the functions of politicalorgans of international organizations — both the United Nations


282. UN docs. A/6165, paras. 36-37 ; and A/6547, para. 51. And cf.Chap. XXIV, RCADI, Vol. 317 (2005).

283. Cf. UN doc. A/6955, para. 89.284. In this respect, it was recalled that the principle at issue, already con-

tained in the Drago doctrine, was considered in the Inter-American Conferenceof Havana of 1928, and for the first time formally affirmed in the 1933Montevideo Convention on the Rights and Duties of States, and subsequently setforth by the Inter-American Conference of Buenos Aires of 1936 in theAdditional Protocol on Non-Intervention. That principle, reiterated in theConferences of Lima of 1938 and of Chapultepec of 1945, received its widerand more rigorous formulation in the Pact of Bogotá of 1948 and in the provi-sions of Articles 15 and 16 of the OAS Charter ; UN doc. A/AC.119/SR.30,pp. 4-5, and cf. also p. 7. Thus — in the view of the Mexican delegate (J.Castañeda) — “the inter-American concept of non-intervention was universallyapplicable” ; UN doc. A/AC.119/SR.30, p. 11. On the principle of non-interven-tion in the inter-American system, cf., e.g., C. Sepúlveda, Las Fuentes delDerecho Internacional Americano, Mexico, Ed. Porrúa, 1975, pp. 77-84 and 95-103 ; C. Sepúlveda, “The Reform of the Charter of the Organization of AmericanStates”, 137 RCADI (1972), pp. 96-98 and 102-108 ; and cf. also I. Fabela,Intervention, Paris, Pedone, 1961, pp. 67-212. Subsequently, in an Opinion pub-lished in January 1962 on the “Contribution of the American Continent to thePrinciples of International Law concerning the Responsibility of the State”, theOAS Inter-American Juridical Committee inter alia considered the principle ofnon-intervention as the most fundamental one of the inter-American system, forbeing at the time “contractually binding for 21 American Republics” ; OAS, doc.OEA/Ser.I/VI.2 — CIJ-61, Chap. IV, pp. 9-12.

285. UN doc. A/AC.119/SR.30, p. 21. And cf. also UN docs. A/AC.119/SR.26, pp. 5-6 ; and doc. A/AC.119/SR.28, pp. 7-9. As to prior endeavours of theStates to codify the principle of non-intervention, cf. UN doc. A/5671, p. 23.

286. Cf. UN docs. A/6955, paras. 80-82, and A/6547, para. 54. And, on thatresolution, cf., generally, e.g., N. Ouchakov, “La compétence interne des Etats etla non-intervention dans le droit international contemporain”, 141 RCADI(1974), pp. 65-80.

(Security Council and General Assembly) and regional organizations— in the settlement of disputes 282.

The third principle considered by the Special Committee, that ofthe duty of non-intervention, was strongly supported, for example,by the representatives mainly of Latin American and also of EasternEuropean States 283. In the debates of the Special Committee, it wascontended that the principle of non-intervention amounted in fact toa principle of International Law of Latin American origin 284. It wasfurther pondered that, given the difficulties of defining interventionin all its forms, it should be incumbent upon the “international com-petent organs” to determine in each concrete case whether inter-vention had occurred or not 285. It was further agreed that the UNGeneral Assembly resolution 2131 (XX) of 1965, containing theDeclaration on the Inadmissibility of Intervention in the InternalAffairs of States and the Protection of Their Independence andSovereignty 286, should serve as basis for the work of the Committee,


287. Cf. UN doc. A/6955, paras. 83 and 53 ; and cf. UN docs. A/6230, p. 134 ;A/6547, para. 52 ; A/8018, Suppl. 18, p. 14, and cf. pp. 36-37.

288. Text in UN General Assembly, Resolutions Adopted on the Report of theSixth Committee — 25th Session, 1970, p. 213 (AG resolution 2625 (XXV) of1970) : cf. also UN doc. A/8028, Suppl. 28, p. 123, and cf. pp. 121-124.

289. UN doc. A/6165, para. 52 ; and cf. also UN doc. A/6955, para. 56.290. Cf., UN docs. A/6230, paras. 414-445 ; and A/6799, paras. 114-170.

for expressing a “universal juridical conviction” in the principle ofnon-intervention and for having been adopted without any votesagainst it 287.

The outcome of the work of the Special Committee on the dutyof non-intervention was significant. The principle, as formulated bythe Committee, was unequivocal is providing that

“armed intervention and all other forms of interference orattempted threats against the personality of the State or againstits political, economic and cultural elements, are in violation ofInternational Law” ;

it further stipulated that

“no State may use or encourage the use of economic, politicalor any other type of measures to coerce another State inorder to obtain from it the subordination of the exercise ofits sovereign rights and to extract from it advantages of anykind”.

The text added that “every State has an inalienable right to chooseits political, economic, social and cultural systems, without inter-ference in any form by another State” 288. The formulation by theSpecial Committee of the duty of non-intervention was categoricalin condemning intervention in all its forms.

At the very start of the debates of the Special Committee on thefourth principle, that of the duty of international co-operation, it waspondered that such co-operation should always take place “on thebasis of the absolute equality of States” 289. References were thenmade to regional endeavours of co-operation in the area of develop-ment and technical assistance 290. In the Geneva session of 1967 ofthe Special Committee, there was support for the inclusion, in theformulation of the principle, of a clause providing for the duty of co-operation of the States in the promotion of respect for, and obser-vance of, human rights and the elimination of all forms of racial dis-


291. UN doc. A/6955, para. 58, and cf. paras. 51, 53 and 55. In recallingArticle 23 of the Covenant of the League of Nations and Articles 13, 55 and 56of the UN Charter, one representative remarked that the principle of co-opera-tion among States encompassed also their duty to co-operate in the juridicalfield as well, and “particularly in the progressive development of InternationalLaw and its codification” ; E. Ustor, “The Principle of Co-operation amongStates and the Development of International Law”, in Questions of InternationalLaw (Hungarian Branch of the International Law Association), Budapest,Progresprint, 1971, pp. 245-246 ; and cf. also, on the principle at issue, E.McWhinney, “Friendly Relations and Co-operation among States : Debate at theTwentieth General Assembly, United Nations”, 60 AJIL (1966), p. 360.

292. E. Ustor, op. cit. supra footnote 291, pp. 244-245.293. UN docs. A/6955, paras. 62-63 and 71 ; A/7831, paras. 22-24 and 27 ;

A/6547, para. 69. 294. Such as, e.g., resolutions 1514 (XV) of 1960 (the contents of which

were particularly significant for the conceptualization of self-determination inthe context of decolonization), 2105 (XX) of 1965 (of support to movements ofnational liberation), as well as resolutions 2160 (XXI) of 1966, 1541 (XV) of1960, and 2131 (XX) of 1965 ; UN docs. A/7831, para. 22, A/6547, para. 71,A/6955, paras. 62 and 65. It is to be noted, however, that the definitive formu-lation of the principle in the Declaration of 1970 did not quote expressly anyof those resolutions of the UN General Assembly. GA resolution 2621 (XXV)of 1970 contained the Plan of Action for the Full Implementation of theDeclaration on the Granting of Independence to Colonial Countries and Peoples.

295. Cf., e.g., UN docs. A/6799, paras. 171-235 ; and A/6230, paras. 456-521.

crimination and religious intolerance 291. If, on the one hand, therewere areas which continued, more than ever, to require urgently theco-operation of States, such as, inter alia, those of disarmarment,exploration of outer space, protection of the environment, explo-ration of ocean resources, erradication of hunger, peaceful uses ofAntarctica, on the other hand one should acknowledge the intenseactivity of international co-operation developed in recent yearswithin the United Nations and regional organizations, whichappeared as an expression of the opinio juris sive necessitatis ofStates 292.

The consideration of principles of International Law by the SpecialCommittee did not limit itself to a simple reassessment of the basicprinciples already found in Article 2 of the UN Charter, but extendeditself also to principles the contents of which were, at that time, stillin evolution, such as that of the equality of rights and self-determi-nation of peoples 293. References were made to relevant resolutionsof the UN General Assembly on decolonization 294. In the prolongeddebates on the principle at issue 295 there was support for the viewthat States had to abstain themselves from any action contrary to theexercise of self-determination, and that colonial peoples strugglingfor emancipation were entitled to search for and receive all kinds of


296. UN docs. A/6165, para. 61 ; and A/7831, para. 28.297. UN doc. A/7831, paras. 29-30 ; and cf., on the matter, J. Zourek,

L’interdiction de l’emploi de la force en droit international, Leiden, Geneva,Sijthoff, Institut H.-Dunant, 1974, Chap. XI, pp. 93-112 ; D. Touret, “LaDéclaration universelle des droits des peuples”, 55 Revue de droit internationalde sciences diplomatiques et politiques (1977), pp. 296-297 ; and cf., generally,I. Brownlie, International Law and the Use of Force by States, Oxford,Clarendon Press, 1963, pp. 1-436.

298. Cf. UN docs. A/7831, para. 26 ; and A/6955, para. 68.299. Cf., e.g., UN docs. A/5746, paras. 293-352 ; A/6799, paras. 409-437 ;

and A/6230, paras. 356-413.300. Cf., UN docs. A/6547, para. 59 ; and A/6955, para. 99.301. E.g., General Assembly resolutions 1803 (XVII) of 1962, 2158 (XXI) of

1966, and 2200 A (XXI) of 1966, on the matter at issue ; cf. UN docs. A/6955,para. 100 ; and A/6547, para. 61 ; and cf. also A/6165, para. 45. The Declaration,however, did not expressly quote any of those resolutions of the UN GeneralAssembly in the formulation of the principle at issue.

assistance in accordance with the principles and purposes of the UNCharter 296. This was one of the rare and exceptional situations inwhich the use of force, thus understood, was contemplated, onbehalf of colonial peoples and in the light of the UN Charter 297.

An attempt was made to draw a distinction between the typicalcases of self-determination (in the immediately colonial context) andthose of secession (in an already independent country) 298. In anycase, the formulation of the principle of self-determination rankedamong the significant achievements of the Special Committee, par-ticularly for the contribution to the progressive development ofInternational Law (cf. infra), bearing in mind that until then someStates had not yet accepted self-determination as a right of peoples.

The consideration by the Special Committee of the principle ofsovereign equality of States may at first sight have appeared as con-ducive to a simple reassertion of Article 2 (1) of the UN Charter. Yet,its continuing importance was stressed, and a new element emergedin relation to Article 2 (1), namely, the recognition in the debates bythe Committee members of the right of the State to free choice anddevelopment of its political, social, economic and cultural sys-tems 299. Throughout the work on the formulation of that principle,there was a constant concern with de facto inequalities amongStates, which — it was believed — should not be “legalized” 300.One of the points most often debated was surely the right of Statesto dispose freely of their wealth and their natural resources, whichwas considered an essential aspect of the principle at issue in theeconomic domain ; in this respect, references were made to succes-sive UN General Assembly resolutions on the matter 301.


302. Cf. UN docs. A/6799, paras. 236-300 ; and A/6230, paras. 522-566.303. UN doc. A/6165, para. 64 ; and cf. also UN docs. A/6547, para. 74 ;

A/6955, para. 77.304. Cf. ibid., para. 79.305. Text in UN General Assembly, Resolutions Adopted on the Report of the

Sixth Committee, 25th session, 1970, p. 124 (GA res. 2625 (XXV) of 1970).306. By unanimity by the XXV General Assembly shortly after the last ses-

sion of the Special Committee (Geneva, 1970), and composed of a preamble,seven principles and a general part.

307. For the view that the 1970 Declaration on Principles, as an interpretationand elaboration of the UN Charter principles, is binding on States Parties, and,as its principles are also general international law, it is likewise binding onStates non-members of the United Nations as well, cf. B. Sloan, “GeneralAssembly Resolutions Revisited (Forty Years Later)”, 58 British Year Book ofInternational Law (1987), pp. 88 and 57.

As to the debates on the seventh principle, that of good faith incompliance with international obligations 302, it was argued by sev-eral representatives that the only obligations encompassed by thatprinciple were those “compatible with the [UN] Charter and generalInternational Law” 303. Other aspects were also considered of theprinciple at issue, namely, some representatives regretted that theDrafting Committee of the Special Committee had not expresslyrecognized, in the formulation of that principle, the primacy of inter-national legal obligations over those derived from domestic law 304.But the formulation of the last principle set forth in the 1970Declaration was, however, careful enough to provide, inter alia, that,when obligations derived from international agreements entered intoconflict with the obligations of the member States of the UnitedNations in accordance with its Charter, these latter would prevail 305.

3. The 1970 Declaration on Principles as a contribution to the iden-tification of the opinio juris communis

The 1970 Declaration on Principles of International Law concern-ing Friendly Relations and Co-operation among States, as at lastadopted 306, pointed out that the principles enshrined therein wereinterrelated and constituted “basic principles of International Law”.Despite the difficulties it met, it contributed to the identification ofthe opinio juris communis 307 on the fundamental issue of the prin-ciples of International Law. Taken as a whole, the 1970 Declarationappeared more comprehensive than earlier attempts of systematiza-tion of the matter, and more adequate to the exigencies and needs ofthe epoch, and represented a sensible advance when compared with


308. E. Ustor, “The Principle of Co-operation among States . . .”, op. cit.supra footnote 291, pp. 238-239.

309. The Declaration was referred to in the assertion of one of its principles,that of self-determination of peoples, reiterating the basic need of taking intoaccount the aspirations of the people at issue ; ICJ, Advisory Opinion on theWestern Sahara, ICJ Reports 1975, p. 33, para. 58.

310. Proclaiming inter alia self-determination already as a right and nolonger as but a principle.

311. Cf. D. Touret, “La Déclaration universelle des droits des peuples”,op. cit. supra footnote 297, pp. 288-298, esp. pp. 293 and 296-297.

312. Cf. “Conférence diplomatique sur la réaffirmation et le développementdu droit international humanitaire applicable dans les conflits armés — Résumédes travaux de la quatrième session”, 703 Revue internationale de la Croix-Rouge (July 1977), pp. 381-418.

313. In connection with the debates of the epoch on the status of movementsof national liberation in International Law ; cf. G. Abi-Saab, “Wars of NationalLiberation and the Development of Humanitarian Law”, in Declarations onPrinciples, a Quest for Universal Peace — Liber Amicorum Discipulorumque B.V. A. Röling, Leyden, Sijthoff, 1977, pp. 145-148, 150, 153-158, 164 and 167.

314. Cf., e.g., A. J. Lleonart y Amselem, Derecho de los Estados a DisponerLibremente de Sus Recursos Naturales, Madrid, Consejo Superior deInvestigaciones Científicas, Instituto Francisco de Vitoria, 1976, pp. 225, 328-346 and 412-413 ; and cf. also, e.g., K. N. Gess, “Permanent Sovereignty over

the Draft Declaration on the Rights and Duties of States prepared bythe ILC in 1949 308.

As already seen, at a stage of the preparatory work the hope wasexpressed that the Declaration was to amount to an expression of a“universal juridical conviction” on the matter (cf. supra). The impactof the Declaration was to be promptly felt throughout the seventies.It was referred to by the ICJ in its Advisory Opinion on the WesternSahara (1975), and invoked in the course of its advisory proceed-ings 309. Shortly afterwards, personalities and representatives ofmovements of national liberation signed in Argel the 1976 UniversalDeclaration on the Rights of Peoples 310, the drafting of which wasrecognizedly influenced by the contents of the 1970 Declaration onPrinciples 311.

In the debates of the Diplomatic Conference on the Reaffirmationand Development of International Humanitarian Law (Geneva, foursessions, 1974-1977), conducive to the adoption of AdditionalProtocols I and II of 1977 to the Geneva Conventions of 1949 onInternational Humanitarian Law 312, references were made to the1970 Declaration on Principles, in particular in relation to the rightof self-determination of peoples 313. The 1970 Declaration had thenalready come to be widely invoked, also at doctrinal level, in thecontext of the right of States to dispose freely of their naturalresources 314. In particular, the principle of sovereign equality of


Natural Resources”, 13 International and Comparative Law Quarterly (1964),pp. 398-449 ; E. Atimomo, “Natural Resources and the United Nations”, 10Journal of World Trade Law (1976), pp. 280-289.

315. Cf., earlier on, B. Boutros-Ghali, “Le principe d’égalité des Etats et lesorganisations internationales”, 100 RCADI (1960), pp. 11 and 14-15 ; J.Castañeda, “The Underdeveloped Nations and the Development of InternationalLaw”, 15 International Organization (1961), pp. 38-48 ; K. Wolfke, “ThePrivileged Position of the Great Powers in the International Court of Justice”, 56Die Friedens-Warte (1961-1966), pp. 156-167 ; C. A. Colliard, “Egalité ou spé-cificité des Etats dans le droit international public actuel”, in Mélanges offerts àM. le doyen L. Trotabas, Paris, LGDJ, 1970, pp. 529-558.

316. Cf., e.g., F. A.-M. Riad, “Equality among Nations”, 31 Revue égyptiennede droit international (1975), pp. 157-178 ; E. David, “Quelques réflexions surl’égalité économique des Etats”, 10 Revue belge de droit international (1974),pp. 399-424, esp. pp. 404-418 and 423.

317. B. Broms, “The Definition of Aggression”, 154 RCADI (1977) pp. 330,339-340, 357-361, 367, 386-387 and 392.

318. Preamble, eighth considerandum ; and Article 7, reaffirming the right ofself-determination of peoples. Cf. text in UN doc. A/9890, of 6.12.1974, pp. 4and 7, respectively.

319. Cf. J. Zourek, “Enfin une définition de l’aggression”, 20 Annuairefrançais de droit international (1974), pp. 9-30 ; V. Blanco Gaspar, La AgresiónInternacional : Intentos de Definición, Madrid, Consejo Superior de Investi-gaciones Científicas, Instituto Francisco de Vitoria, 1973, pp. 25-31. However,the issue of the definition of aggression did not appear to have been entirelyresolved in a definitive and wholly satisfactory way (as subsequent develop-ments were to demonstrate).

320. Cf., on the theme, e.g., G. I. Tunkin, “Co-existence and InternationalLaw”, 95 RCADI (1958), pp. 5-78 ; L. Focsanéanu, “Les ‘cinq principes’ de lacoexistence et le droit international”, 2 Annuaire français de droit international(1956), pp. 150-180.

States, set forth in the 1970 Declaration, became the object of asystematic reassessment in the light of developments of InternationalLaw at that time 315. In subsequent years, the issue of equality amongnations came to be approached by reference to the formulationenshrined into the 1970 Declaration on Principles 316.

The 1974 UN Definition of Aggression was influenced by the1970 Declaration on Principles 317 ; the former contained two expressreferences to this latter 318. Both Declarations were based on thelaw of the United Nations, comprising not only the UN Charter butalso the practice thereunder 319. The adoption itself of the 1970Declaration on Principles was a very positive development, not onlyfor the conclusion of the work in a difficult time (marked, inter alia,by the Vietnam war and the conflicts in the Middle East) — a factorwhich prompted its draftsmen to conduct their work bearing in mindthe relationship between the formulation of basic principles of Inter-national Law and the imperative of securing peaceful co-existenceof States belonging to different ideological blocs at that time 320.


321. I. Sinclair, “The Significance of the Friendly Relations Declaration”, inThe United Nations and the Principles of International Law — Essays in

Likewise significant was the fact that the Declaration succeeded inintermingling the principles set forth therein.

VI. Concluding Observations

In the light of the considerations developed in the present chapter,it may be concluded that the principles of International Law shedlight on the interpretation and application of International Law as awhole, pertain to the very substratum of this latter, and are identifiedwith the very foundations of the international legal system. Theypermeate every legal system. Their continuing validity is beyondquestion. Principles of International Law are essential to humankind’squest for justice, and of key importance to the endeavours of con-struction of a truly universal International Law.

1. The sustained validity of the principles of International Law

As proclaimed in the UN Charter in 1945, and restated in the1970 UN Friendly Relations Declaration, the principles ofInternational Law retain their full validity in our days. A violation ofa norm or rule of International Law does not mean that such norm orrule ceased to exist ; it means that International Law has been vio-lated, engaging the international responsibility of the wrongdoers.This is bound to occur in any domain of law. A violation of a normor rule of International Law does not affect the validity of its corpusjuris and its guiding principles. There is a constant recourse to suchprinciples, bearing witness of their continuing validity.

Given the overriding importance of those principles, not surpris-ingly they found expression in the UN Charter, adopted in 1945. Aquarter of a century afterwards, the 1970 Declaration on Principleswas meant to be a law-declaring resolution as to those basic prin-ciples, so as to serve as a guide for all States in their behaviour. TheUN Declaration on Principles, though not exhaustive in its content,proved to be, in the following years, a source for other exercises ofthe kind, such as the declaration of principles enshrined into theHelsinki Final Act (1975) which formed the basis for the subsequentcreation of the (then) CSCE (Conference on Security and Co-opera-tion in Europe) process 321. One of the final clauses of the 1970


Memory of M. Akehurst (eds. V. Lowe and C. Warbrick), London, New York,Routledge, 1994, pp. 5-10 and 26-29.

322. Cf. debates on “The Role of General Principles of Law and GeneralAssembly Resolutions”, in Change and Stability in International Law-Making(eds. A. Cassese and J. H. H. Weiler), Berlin, W. de Gruyter, 1988, pp. 47-48(interventions of J. H. H. Weiler and E. Jiménez de Aréchaga).

323. Cf. ibid., pp. 54-55 (intervention of A. Cassese).324. G. White, “The Principle of Good Faith”, in The United Nations and

the Principles of International Law — Essays in Memory of M. Akehurst (eds.V. Lowe and C. Warbrick), London, New York, Routledge, 1994, pp. 231 and236.

325. M. Lachs, “Some Thoughts on the Role of Good Faith in InternationalLaw”, in Declarations on Principles, a Quest for Universal Peace — LiberAmicorum Discipulorumque B. V. A. Roling, Leyden, Sijthoff, 1977, pp. 47-55 ;M. K. Yasseen, “L’interprétation des traités d’après la Convention de Vienne surle droit des traités”, 151 RCADI (1976), p. 20 ; Clive Parry, “Derecho de losTratados”, in Manual de Derecho Internacional Público (ed. M. Sørensen), 5threimpr., Mexico, Fondo de Cultura Económica, 1994, pp. 229 and 200-201.

Declaration further asserted that each of the principles containedtherein was to be interpreted and applied in the context of the otherprinciples, interrelated as they all were.

Thus, while the traditional general principles of law (found in forodomestico) disclosed a rather procedural character, the general prin-ciples of International Law — such as the ones proclaimed in the1970 Declaration — revealed instead a substantive content (so asto guide State conduct) 322, proper of the very foundations ofInternational Law. Such general principles of International Law (asset forth in the 1970 Declaration on Principles) are thus vested withuniversal importance for the international community itself 323.

The interrelationship between the principles at issue is evident,for example, with regard to the principle of the prohibition of the useor threat of force, and the principle of peaceful settlement of inter-national disputes. The same can be said of the principle of the dutyof international co-operation, with regard to the principle of goodfaith in the compliance with international obligations. This latter isgenerally regarded as providing the foundation of the internationallegal order, in the sense that it asserts the basic need of compliancewith binding international obligations (pacta sunt servanda), arisingfrom conventional as well as customary international law 324. Theprinciple of pacta sunt servanda, enshrined into the ViennaConvention on the Law of Treaties of 1969 (Article 26 and pre-amble), gives concrete expression to norms also of customary inter-national law. The principle pacta sunt servanda — asserted by thatof good faith (bona fides) 325 — effectively transcends the law of


326. The law of treaties, like the law on the international responsibility ofStates, are closely linked to the very foundations of International Law ;P. Reuter, Introduction au droit des traités, 2nd ed., Paris, PUF, 1985, p. 32.

327. E.g., B. Conforti, Derecho Internacional, Buenos Aires, Zavalía Ed.,1995, p. 67 ; and cf. H. Mosler, “The International Society as a Legal Com-munity”, 140 RCADI (1974), pp. 115-116 ; R. R. Baxter, “Treaties and Custom”,129 RCADI (1970), pp. 31, 43, 57 and 102-103.

328. Ian Brownlie, Principles of Public International Law, 5th ed., Oxford,University Press, 1998, p. 620.

329. Cf. Lord McNair, The Law of Treaties, Oxford, Clarendon Press, 1961,pp. 493 and 505 ; and, for the historical and doctrinal evolution of the principlepacta sunt servanda, cf., e.g., M. Sibert, “The Rule Pacta Sunt Servanda : Fromthe Middle Ages to the Beginning of Modern Times”, 5 Indian Yearboook ofInternational Affairs (1956), pp. 219-226 ; J. B. Whitton, “La règle pacta suntservanda”, 49 RCADI (1934), pp. 151-268.

330. E. de la Guardia and M. Delpech, El Derecho de los Tratados y laConvención de Viena, Buenos Aires, La Ley, 1970, p. 276.

331. Cf. J. L. Brierly, The Basis of Obligation in International Law, Oxford,Clarendon Press, 1958, p. 65 ; J.L. Brierly, The Law of Nations, 6th ed., Oxford,Clarendon Press, 1963, p. 54.

332. ICJ, Nuclear Tests (Australia v. France), ICJ Reports 1974, p. 268, para. 46.

treaties 326, being characterized by doctrine as either a norm of cus-tomary law 327 or a general principle of International Law 328.

Its insertion into the aforementioned Vienna Convention wasendowed with a clearly axiomatic character : it came to appear in aconvention of codification, which asserted in an incontrovertibleway its wide scope. But, already well before its acknowledgment inthe Vienna Convention of 1969 referred to 329, the principle pactasunt servanda effectively appeared, as already indicated, as, morethan a general rule of interpretation of treaties, a precept of custom-ary International Law or a true general principle of InternationalLaw, endowed with widespread jurisprudential recognition 330. Theextent of the principle pacta sunt servanda, as well as the ultimatequestion of the validity of the norms of International Law, transcendthe particular ambit of the law of treaties 331 ; the principle pacta suntservanda is, in any case, deeply rooted in the international legalsystem as a whole.

Good faith is, in turn, inherent in any legal order, guiding thebehaviour of the subjects of law. Four years after the adoption of the1970 UN Declaration on Principles of International Law, the ICJ, inthe Nuclear Tests case (1974), stressed the fundamental character ofthe principle of good faith, in pondering that “one of the basic prin-ciples governing the creation and performance of legal obligations,whatever their source, is the principle of good faith” 332. The principleof good faith has a key position in International Law and all legal


333. E. Zoller, La bonne foi en droit international public, Paris, Pedone,1977, pp. 354 and 339-340, and cf. pp. 12-13, 346 and 352.

334. Cf., e.g., A. James, “The Principle of Co-operation : United NationsPeacekeeping”, in The United Nations and the Principles of International Law— Essays in Memory of M. Akehurst (eds. V. Lowe and C. Warbrick), London,New York, Routledge, 1994, pp. 160-174.

335. Cf. Ph. Cahier, “Changements et continuité du droit international. Coursgénéral de droit international public”, 195 RCADI (1985), pp. 85-86 and 89.

336. G. Abi-Saab, “Some Thoughts on the Principle of Non-Intervention”, inInternational Law : Theory and Practice — Essays in Honour of Eric Suy (ed.K. Wellens), The Hague, Nijhoff, 1998, pp. 227-234.

systems, providing them with an ethical basis, and surely standingabove positive law ; it is metajuridical, and constitutes “the startingpoint of a progressive moralization of International Law” 333.

The principle of the duty of international co-operation has gainedground in the last decades, if one bears in mind, for example, therelevance of international co-operation in various areas, such as, forexample, peacekeeping and peacebuilding within the ambit of thelaw of the United Nations 334. Intensified international co-operationaccounts for the impressive developments in recent decades in cer-tain domains of International Law, such as, for example, the interna-tional protection of human rights and of the human environment.The principle of the duty of international co-operation is indeedrelated to that of bona fides : one can in fact find express support ininternational case-law for the principle of the duty of internationalco-operation in good faith 335. Principles of International Law consti-tute altogether the pillars of the international legal system itself.

As the clause of domestic jurisdiction (Art. 2 (7)) of the UNCharter had in mind the relations between the Organization andmember States and did not expressly address intervention in inter-State relations, it was much to the credit of the 1970 Declaration onPrinciples to have formulated the principle of non-intervention by aState or group of States in the internal or external affairs of anotherState 336. One and a half decades later, the ICJ, in the Nicaragua v.United States case (1986), in expressly invoking inter alia the 1970Declaration on Principles, stated that the principle at issue

“forbids all States or groups of States to intervene directly orindirectly in the internal or external affairs of other States. . . .Intervention is wrongful when it uses methods of coercion . . .The element of coercion, which defines, and indeed forms theessence of, prohibited intervention, is particularly obvious in


337. ICJ, Nicaragua v. United States case, Judgment of 27 June 1986(Merits), ICJ Reports 1986, p. 108, para. 205.

338. T. Mitrovic, “Non-Intervention in the Internal Affairs of States”, inPrinciples of International Law concerning Friendly Relations and Cooperation(ed. M. Šahović), Belgrade, New York, Institute of International Politics andEconomics, Oceana, 1972, pp. 221, 256-257 and 248.

339. ICJ, Corfu Channel (United Kingdom v. Albania), Judgment of 9 April1949 (Merits), ICJ Reports 1949, p. 35.

the case of an intervention which uses force, either in the directform of military action, or in indirect form of support for sub-versive or terrorist armed activities within another State. . . .These forms of action are therefore wrongful in the light ofboth the principle of non-use of force, and that of non-inter-vention.” 337

To the Special Committee which drafted the 1970 Declaration onPrinciples the formulation of the principle of non-interventionexpressed a “universal legal conviction” ; the principle had its basisin customary law, and was reasserted in successive internationaltreaties 338. And as for judicial practice, it may be recalled that,already in 1949, in the Corfu Channel case, the ICJ warned thatintervention was but a “manifestation of a policy of force . . .reserved for the most powerful States”, which “might easily lead toperverting the administration of international justice itself” 339. Half acentury later, the United Nations Millennium Declaration, adoptedby the UN General Assembly (resolution 55/2) on 18 September2000, has stated that the principles of the UN Charter “have provedtimeless and universal” (para. 3). Half a decade later, in its recent2005 World Summit Outcome (of 15 September 2005), the UNGeneral Assembly has again evoked the principles of the UNCharter, expressly referring to the aforementioned 1970 Declarationon Principles (para. 73).

2. The projection in time of the evolving principle of self-determina-tion of peoples

Principles of International Law, as formulated in the UN Charterand restated in the 1970 UN Declaration on Principles, besidesretaining their full validity in our days (supra), have had significantprojections in time, accompanying pari passu, and guiding, the evo-lution of International Law itself. This applies to all aforementionedprinciples, but one striking illustration of those projections may here


340. Resolutions 384 (1975), of 22.12.1975, and 389 (1976), of 22.4.1976.341. Resolution 3485 (XXX), of 12.12.1975, besides seven other resolutions.342. There were eight such resolutions of the UN General Assembly, added to

two others of the Security Council.343. On the increased foreign interest in oil resources in the region (conti-

nental shelf of East Timor), cf. R. S. Clark, “The ‘Decolonisation’ of East Timorand the United Nations Norms on Self-Determination and Aggression”, Internatio-nal Law and the Question of East Timor, London, CIIR, IPJET, 1995, pp. 90-91.

344. For a general historical account of the case of East Timor, cf., e.g., J.Ramos Horta, Funu — The Unfinished Saga of East Timor, Trenton, New Jersey,Red Sea Press, 1987, pp. 1-207 ; S. Inbaraj, East Timor — Blood and Tears inASEAN, Chiang Mai, Thailand, Silkworm Books, 1995, pp. 1-183 ; C. O. Quaye,Liberation Struggles in International Law, Philadelphia, Temple UniversityPress, 1991, pp. 177-182 ; L. Hannikainen, “The Case of East Timor from thePerspective of Jus Cogens”, in International Law and the Question of EastTimor, London, CIIR, IPJET, 1995, pp. 108-111.

be singled out, pertaining to the principle of equality of rights andself-determination of peoples, pointing towards the overcoming ofthe traditional inter-State dimension of International Law.

The case of East Timor is illustrative of the relevance of the prin-ciple of self-determination. Prior to independence, East Timor was anon-self-governing territory, the international status of which wasgoverned by the law of the United Nations (Chapter XI of the UNCharter). Shortly after Indonesia’s military occupation of East Timoron 7 December 1975 (followed by its annexation by a law of 15 July1976), the UN Security Council 340 deplored the armed interventionof Indonesia in East Timor ; in its turn, the UN General Assembly 341,in addition to likewise deploring the Indonesian military interven-tion, came to refer to Portugal as the “administering power” of EastTimor, in the ambit of the law of the United Nations — a conditionwhich Portugal was to maintain for years, in the light of successiveGeneral Assembly resolutions on the international legal status of thethen Territory of East Timor 342.

In its resolutions, the UN General Assembly stressed the right ofself-determination of the people of East Timor, in the understandingthat that right had not been exercised. It was precisely in the con-dition of “administering power” that Portugal lodged a complaintagainst Australia before the ICJ for alleged breach of the right toself-determination of the Timorese people, for having Australia cele-brated a treaty (known as that of the Timor Gap) with Indonesiarelating to the exploration of oil resources in the continental shelf ofEast Timor 343. This episode contributed to place the case of EastTimor again in a position of relevance in the political agenda of theUnited Nations 344 ; with the complaint of Portugal — as “adminis-


345. Cf. A. A. Cançado Trindade, “Parecer : O Caso do Timor-Leste (1999) :O Direito de Autodeterminação do Povo Timorense”, 1 Revista de Derecho de laUniversidad Católica del Uruguay (2000), pp. 63-83.

346. The well-known 1960 Declaration on the Granting of Independence toColonial Countries and Peoples (UN General Assembly resolution 1514 (XV),of 14.12.1960) came to strengthen the international status of non-self-governingterritories and of territories under the trusteeship system (para. 5) and to affirmin a categorical way the right of self-determination of their peoples.

347. ICJ, Avisory Opinion on Namibia, ICJ Reports 1971, p. 31, para. 53(emphasis added).

348. ICJ, Advisory Opinion on the Western Sahara, ICJ Reports 1975, p. 68,para. 162 (emphasis added).

349. A. A. Cançado Trindade, Princípios do Direito Internacional . . ., op. cit.supra footnote 245, pp. 61 and 72.

tering power” — before the ICJ, the case of the East Timor againgained momentum 345.

Earlier on, the assertion of the right of self-determination by the1960 UN Declaration on the Granting of Independence to ColonialCountries and Peoples 346 and subsequent resolutions of the UNGeneral Assembly on the matter, came to count on judicial recog-nition, mainly by means of the Advisory Opinions of the ICJon Namibia (of 21 June 1971) and on the Western Sahara (of16 October 1975). In the first Advisory Opinion, the Hague Courtpondered, in relation to the mandates system, that the developmentsin the last 50 years — disclosing the expansion of the corpus jurisgentium in the present domain — left little margin for doubt that“the ultimate objective of the sacred trust was the self-determinationand independence of the peoples concerned” 347. And, in the secondAdvisory Opinion, the ICJ concluded in favour of the application ofresolution 1514 (XV) of the UN General Assembly

“in the decolonization of Western Sahara and, in particular, ofthe principle of self-determination through the free and genuineexpression of the will of the peoples of the Territory” 348.

In the restatement of the principle of equality of rights and self-determination of peoples by the 1970 UN Declaration on Principlesof International Law (cf. supra), a clause was inserted explainingthat a non-self-governing territory — under the UN Charter — has aseparate and distinct status from the territory of the State whichadministers it, which persists until the people living in it exert theirright of self-determination in accordance with the principles and pur-poses of the UN Charter 349.

In sum, a non-self-governing territory in the sense of Chapter XI


350. Cf., in this respect, e.g., Ian Brownlie, “The Rights of Peoples inModern International Law”, The Rights of Peoples (ed. J. Crawford), Oxford,Clarendon Press, 1988, pp. 1-16 ; [Various authors,] Les résolutions dans la for-mation du droit international du développement (Colloque de 1970), Geneva,IUHEI, 1971, pp. 63-67 (permanent sovereignty over natural resources) ;A. J. Lleonart y Amselem, op. cit. supra footnote 314, pp. 15-478.

351. Cf. A. Cassese, Self-Determination of Peoples — A Legal Reappraisal,Cambridge, University Press, 1995, pp. 1-365 ; P. Thornberry, “The Democraticor Internal Aspect of Self-Determination with Some Remarks on Federalism”,Modern Law of Self-Determination (ed. Ch. Tomuschat), Dordrecht, Nijhoff,1993, pp. 101-138 ; Ch. Tomuschat, “Self-Determination in a Post-ColonialWorld”, in ibid., pp. 1-20 ; A. Rosas, “Internal Self-Determination”, in ibid.,pp. 225-251 ; J. Salmon, “Internal Aspects of the Right to Self-Determination :Towards a Democratic Legitimacy Principle ?”, in ibid., pp. 253-282.

of the UN Charter has an international legal status which generatesobligations of respect to the right of self-determination of thepeople living in it, of the safeguard of the human rights of itsinhabitants, and of non-exploration of their natural resources 350.Such obligations are opposable erga omnes, both vis-à-vis the Statewhich administers the territory at issue and vis-à-vis all the otherStates : they are obligations owed to the international community asa whole.

Recent developments in contemporary International Law disclosethe dimensions both external and internal of the right of self-deter-mination of peoples : the former means the right of every people tobe free from any form of foreign domination, and the latter refers tothe right of every people to choose their destiny and to affirm theirown will, if necessary against their own government. This distinc-tion, endorsed by contemporary doctrine 351, challenges the purelyinter-State paradigm of classic International Law : the emergence ofthe International Law of Human Rights came to concentrate atten-tion on the treatment dispensed by the State to all human beingsunder its jurisdiction, on the conditions of living of the population,in sum, on the function of the State as promoter of the commongood.

The theory and practice of contemporary International Laweffectively acknowledge the vindication of the rights of peoples.An international instrument such as the 1981 African Charter ofHuman and Peoples’ Rights, for example, sets forth not only civiland political rights (Arts. 3-14), and economic, social and culturalrights (Arts. 15-18), but also the rights of peoples (Arts. 19-24),with a mechanism of implementation common to all (Arts. 46-59and 62). The rights of peoples have, moreover, counted on arbitral


352. In this case, in its award of 18.2.1983, the Arbitral Tribunal whichdecided the case referred to the “legitimate claims” of the parties as developingStates and to the right of the peoples concerned to achieve the level of economicand social development which preserves fully their dignity ; cit. in Ian Brownlie,The Human Right to Development, London, Commonwealth Secretariat(Occasional Paper Series), 1989, pp. 1-2, and cf. p. 13 n. 1.

353. A. A. Cançado Trindade, Direitos Humanos e Meio-Ambiente —Paralelo dos Sistemas de Proteção Internacional, Porto Alegre, S.A. Fabris Ed.,1993, pp. 186-187.

354. M. C. Maffei, “The Case of East Timor before the International Court ofJustice — Some Tentative Comments”, 4 European Journal of InternationalLaw (1993), pp. 223-238 ; C. M. Chinkin, “East Timor Moves into the WorldCourt”, in ibid., pp. 206-222. On the position of the so-called Organization ofUnrepresented Nations and Peoples (UNPO), cf. M. C. van Walt van Praag,“The Position of UNPO in the International Legal Order”, Peoples andMinorities in International Law (eds. C. Brölmann, R. Lefeber and M. Zieck),Dordrecht, Nijhoff, 1993, pp. 313-325.

355. ICJ Reports 1975, p. 122.356. Cf., on the matter, e.g., United Nations, Compilation of General Com-

ments and General Recommendations Adopted by Human Rights Treaty Bodies,UN doc. HRI/GEN/1/Rev.3, of 15.8.1997, p. 13 (paras. 1-2 and 6).

and judicial recognition, as acknowledged, for example, by the caseof the Maritime Delimitation between between Guinea and Guinea-Bissau 352.

Furthermore, in the international contentieux, cases of initiativesof States on behalf of peoples, so as to protect them, may berecalled : clear indications to this effect are found, for example, intwo unilateral applications instituting proceedings before the ICJ,namely, that of New Zealand (against France) in the case of theNuclear Tests (1973-1974), and that of Nauru (against Australia) inthe case of the Phosphate Lands (1989-1992) 353.

The well-known aforementioned obiter dicta of the ICJ affirmingthe applicability of self-determination to all non-self-governing terri-tories (Advisory Opinion on Namibia, 1971) and recognizing theright of self-determination through the “free and genuine expressionof the will of the peoples of the Territory” (Advisory Opinion on theWestern Sahara, 1975), came to foster the definitive consolidation ofthe justiciability of the right of self-determination of peoples 354. Inthe fortunate expression of the Separate Opinion of Judge Dillard inthe Advisory Opinion on the Western Sahara, “it is for the people todetermine the destiny of the territory and not the territory the destinyof the people” 355. There is, thus, a whole doctrinal and jurispruden-tial development, corroborated by the practice of States and of inter-national organizations, in support of the right of self-determinationof peoples 356.


357. R. Fernandes, Le principe de l’égalité juridique des Etats dans l’activitéinternationale de l’après-guerre, Geneva, Impr. A. Kundig, 1921, pp. 18-19 and21-22.

358. A. Magarasevic, “The Sovereign Equality of States”, in Principles ofInternational Law concerning Friendly Relations and Cooperation (ed.M. Šahović), Belgrade, New York, Institute of International Politics andEconomics, Oceana, 1972, pp. 176-178, 197 and 212.

359. Cf. R. P. Anand, “Sovereign Equality of States in International Law”,197 RCADI (1986), pp. 54-58, 63-66, 77-79, 91-100, 117-126, 157-159 and 189-195.

360. A. Miele, La Comunità Internazionale, Turin, G. Giappichelli Ed., 2000,pp. 8 and 24.

361. On the basis of the understanding that the preservation of internationalpeace and security is a matter of international concern, is a common concern ofall States and of the international community ; C. Warbrick, “The Principle ofSovereign Equality”, in The United Nations and the Principles of InternationalLaw — Essays in Memory of M. Akehurst (eds. V. Lowe and C. Warbrick),London, New York, Routledge, 1994, pp. 210 and 213-214.

3. Principles of International Law, the quest for justice and the uni-versality of International Law

On successive occasions the principles of International Law haveproved to be of fundamental importance to humankind’s quest forjustice. This is clearly illustrated by the role played, inter alia, bythe principle of juridical equality of States 357. This fundamentalprinciple — the historical roots of which go back to the II HaguePeace Conference of 1907 —, proclaimed in the UN Charter andenunciated also in the 1970 Declaration on Principles, means ulti-mately that all States — factually strong and weak, great and small— are equal before International Law, are entitled to the same pro-tection under the law and before the organs of international justice,and to equality in the exercise of international rights and duties 358.

Despite successive attempts to undermine it, the principle ofjuridical equality of States has remained, from the II HaguePeace Conference of 1907 to date 359, one of the basic pillars ofInternational Law. It has withstood the onslaught of time, and shownitself salutary for the peaceful conduct of international relations,being ineluctably associated — as it stands — with the foundationsof International Law. It has been very important for the internationallegal system itself 360, and has proven to be a cornerstone ofInternational Law in the United Nations era. In fact, the UN Chartergave it a new dimension, and the principle of juridical equality ofStates, in turn, paved the way for, and contributed to, new develop-ments such as that of the system of collective security, within theambit of the law of the United Nations 361. It has been rightly


362. R. P. Anand, op. cit. supra footnote 359, pp. 125-126.363. G. Abi-Saab, “La reformulation des principes de la Charte et la transfor-

mation des structures juridiques de la communauté internationale”, in Le droitinternational au service de la paix, de la justice et du développement —Mélanges M. Virally, Paris, Pedone, 1991, pp. 4 and 6-7.

364. Ch. Rousseau, Principes généraux du droit international public, Vol. I,Paris, Pedone, 1944, pp. 926-927.

365. J. I. Charney, “Universal International Law”, 87 AJIL (1993), p. 532.366. C. Wilfred Jenks believed that an enquiry into the general principles of

law (found in distinct legal systems, and further encompassing the principles ofInternational Law itself) could much contribute to provide the “basic founda-tions of a universal system of international law” ; C. W. Jenks, The CommonLaw of Mankind, London, Stevens, 1958, pp. 106 and 120-121, and cf. p. 172.

remarked that respect for the principle of juridical equality of Statesfacilitates the work of the United Nations, whose voice represents“the authentic voice of mankind”, and gives expression to the“juridical conscience of nations” 362.

In its turn, the emergence and consolidation of the principle ofequality of rights and self-determination of peoples came to heraldthe overcoming in our times of the old inter-State dimension ofInternational Law ; self-determination, in particular, takes intoaccount subjects of International Law other than States, and couldsimply not exist or operate in a merely or exclusively inter-Statecontext 363. Its remarkable projection in the last decades, as alreadypointed out, was to enable the discernment of the external and inter-nal dimensions of self-determination (cf. supra), and the definitiveincorporation of the rights of peoples into the conceptual universe ofcontemporary International Law.

Last but not least, it is not surprising to find that voluntarist-posi-tivists, who have always attempted to minimize the role of generalprinciples of law, have always met the opposition of those who sus-tain the relevance of those principles, as ensuing from the idea of anobjective justice 364, and guiding the interpretation and application oflegal norms and rules. The international legal system is supportednot only by the observance by States (and other subjects ofInternational Law) of international norms and rules, but also — andabove all — by their commitment to preserve and promote that sys-tem as a whole 365 ; and it is the principles of this latter that can bestensure the cohesion and integrity of the international legal system asa whole 366. Those principles are intertwined with the very founda-tions of International Law, pointing the way to the universality ofthis latter.


367. A. Verdross, “Les principes généraux du droit . . .”, op. cit. supra foot-note 196, p. 202. On his part, H. Lauterpacht sustained that the universality of a“substantial body of International Law” is to a large extent based on the generalprinciples of law, which “by definition” have a universal character and applica-tion, “independently of any express or implied manifestation of the will” of themembers of the international community ; furthermore, the universality of someprovisions of conventional international law stems from “compelling considera-tions of humanity” ; International Law Being the Collected Papers of HerschLauterpacht (ed. E. Lauterpacht), Vol. I (General Works), Cambridge, UniversityPress, 1970, pp. 114-117.

368. A. Favre, “Les principes généraux du droit, fonds commun du droit desgens”, op. cit. supra footnote 222, pp. 369, 374-375, 379, 383 and 390.

Writing in 1935, A. Verdross propounded the “universal idea oflaw”, emanating from human conscience, conforming the existenceof a “fonds juridique commun”, source of the general principles oflaw 367. Over three decades later, A. Favre sustained, in 1968, thatgeneral principles of law are “the expression of the idea of justice”having a universal scope and expressing the “juridical conscience ofhumankind” ; rather than deriving from the “will” of States, theyhave an “objective character” and constitute a “fonds juridique com-mun pour l’ensemble des Etats”, thus securing the unity of law andenhancing the idea of justice to the benefit of humankind as awhole 368. One cannot prescind from the general principles of law,which emanate, in my understanding, ultimately from the universaljuridical conscience, as the material “source” of all Law. The inter-national legal order owes its effectiveness, its universality and itsvery existence to those principles. General principles of law encom-pass the principles of International Law, and express the opinio juriscommunis of the international community, in the construction of anew jus gentium, the International Law for humankind.


369. With the presence of Ambassadors and other representatives States,international organizations and non-governmental organizations. The proceed-ings of that memorable ceremony have been published by the IACtHR (cf. foot-note 370, infra).

CHAPTER IV

THE PRIMACY OF INTERNATIONAL LAW OVER FORCE

I. Introduction

The sustained and continuing validity of the general principlesof International Law provides the foundations for the application ofits norms. In this turmoiled beginning of the twenty-first century,there is growing need to reaffirm, in particular, the primacy ofInternational Law over force. Such reassertion is, in my view, anineluctable duty of every jurist, who cannot contribute with hissilence to the apparent attempts at deconstruction of InternationalLaw in our days. It is a duty to be performed even more vigorouslyat a difficult moment of world crisis such as the present one —reflecting a deep crisis of values — in which the international sys-tem itself is threatened with rupture by the unwarranted use of force,outside the framework of the UN Charter.

II. The Crystallization and Continuing Validity of the Principleof Non-Use of Force

May I begin by recalling a recent episode. In the evening of25 February 2003, in face of the announcement of a forthcomingarmed attack against Iraq by a self-designated “coalition of States”,I convened a public ceremony at the headquarters of the Inter-American Court of Human Rights (IACtHR) in San José, CostaRica, to reaffirm a long-standing and deeply rooted belief in theprimacy of International Law over force. The Court’s room ofpublic hearings was overcrowded 369. In my address that evening, Isaw fit to point out that

“In this same room, yesterday, we witnessed a historicalpublic hearing before the Inter-American Court. Amidst news

122

370. A. A. Cançado Trindade, “Los Aportes Latinoamericanos al Primado delDerecho sobre la Fuerza”, in Doctrina Latinoamericana del DerechoInternacional, Vol. II (eds. A. A. Cançado Trindade and F. Vidal Ramírez), SanJosé, Costa Rica, IACtHR, 2003, p. 39.

371. Cf., e.g., “Appel de juristes de droit international concernant le recoursà la force contre l’Irak”, 36 Revue belge de droit international (RBDI) (2003),pp. 266-274 ; “The Australian Section of the ICJ Questions the Proposed Attackon Iraq”, in ibid., pp. 286-287 ; “Statement by Japanese International LawScholars on the Iraqi Issue”, in ibid., pp. 293-294 ; “ICJ [International Com-mission of Jurists] Deplores Moves toward a War of Aggression on Iraq”, inibid., pp. 297-298 ; declaratory resolution of the Instituto Hispano-Luso-Americano de Derecho Internacional (IHLADI), reviewed infra, and reproducedin 16 Anuario del IHLADI, Madrid (2003), pp. 657-658. And, after the armedattack on Iraq, cf., on the need to respect and ensure respect for InternationalHumanitarian Law, the Declaration of Bruges, adopted by roll-call vote by theInstitut de droit international, reproduced in 70 Annuaire de l’Institut de droitinternational (Session de Bruges, 2003), II, pp. 284-289.

372. Furthermore, it is nowadays generally recognized that States ought tosettle any dispute peacefully (by the methods provided under Article 33 of theUN Charter) until the Security Council makes a determination under Article 39of the Charter ; T. O. Elias, “Scope and Meaning of Article 2 (4) of the UnitedNations Charter”, in Contemporary Problems of International Law : Essaysin Honour of G. Schwarzenberger on his 80th Birthday (eds. Bin Cheng andE. D. Brown), London, Stevens, 1988, pp. 70-74 and 77.

of the imminence of a new war . . ., the Delegations of twelveLatin American countries appeared before this Court, as inter-vening States (Mexico, Honduras, Nicaragua, El Salvador,Costa Rica) or as observers (Uruguay, Paraguay, DominicanRepublic, Brazil, Panama, Argentina and Peru), in advisoryproceedings [on the Juridical Condition and Rights ofUndocumented Migrants], thereby renewing their faith in Law.While in other latitudes there was and there is talk of the useof force, we here renew our faithfulness in Law (in the head-quarters of our Court in a country which has opted for nothaving an army).” 370

In other parts of the world, international lawyers likewiseexpressed their hope that International Law would prevail, and thearmed attack would not take place 371, with all its negative conse-quences for the international legal order. Most regrettably it did, inbreach of Article 2 (4) of the UN Charter, commonly regarded, inhistorical perspective, as one of the most important provisions of theUN Charter 372. The long history behind the fundamental principle ofthe prohibition of threat or use of force, may here be briefly recalled,in a moment of outburst of generalized violence all over the world,of unilateralisms and indiscriminate use of force, presenting a con-


373. Cit. in G. Best, “The Restraint of War in Historical and PhilosophicalPerspective”, in Humanitarian Law of Armed Conflict : Challenges Ahead —Essays in Honour of F. Kalshoven (eds. A. J. M. Delissen and G. J. Tanja),Dordrecht, Nijhoff, 1991, p. 19.

374. Ratified or adhered to by 63 States, which avoided making reservationsto it (before the World War II only 4 States were not bound by its provisions),and remaining still in force ; cf. I. Brownlie, op. cit. infra footnote 422, pp. 23and 25.

375. B. Roscher, “The ‘Renunciation of War as an Instrument of NationalPolicy’ ”, 4 Journal of the History of International Law/Revue d’histoire du droitinternational (2002), p. 294.

376. Despite not having provided for a mechanism for peaceful settlement ofdisputes. In the inter-war period, no other Treaty had more States Parties than it ;B. Roscher, op. cit. supra footnote 375, pp. 295-297 and 303, and cf. p. 299. Inthe years that followed its adoption, several States issued pronouncements ofprinciple endorsing its terms, and some States even foresaw sanctions for actswhich violated the Pact, in the ambit of their domestic law (constitutions andpenal codes).

siderable challenge to all those who deposit their confidence in thelaw of nations.

In fact, over a century ago, the I Hague Peace Conference(1899) ended with an eloquent declaration, which retains its topicality,to the effect that

“The limitation of military expenses, which presently weighheavy on the world, is much to be desired for the sake of bothmaterial and moral development of humankind.” 373

In the course of the League of Nations era, the 1928 General Treatyfor the Renunciation of War as an Instrument of National Policybecame of almost universal application, playing a considerable rolethroughout that era 374, and causing an impact on both theory andpractice of International Law. This was significant, as, beforethe Pact, “according to the prevailing positivist opinion, PublicInternational Law was indifferent towards the State’s extra-legaldecision to go to war” 375. The Briand-Kellogg Pact (which enteredinto force on 24 July 1929) and the subsequent international practiceput an end to that indifference. Soon the Pact became the firstworldwide prohibition of war 376.

The cumulative effect of the Briand-Kellogg Pact of 1928, thePact Saavedra Lamas of 1933, the Stimson doctrine (of non-recog-nition of situations generated by force, of 1932), on the practiceof International Law, was to the effect of crystallizing a customarynorm of condemnation of illegality of the use of armed force asinstrument of national policy. The prohibition of war in International


377. Followed by the Declaration adopted in Mexico by the Inter-AmericanConference on Problems of War and Peace of 1945. Cf. J.-M. Yepes, “La con-tribution de l’Amérique latine au développement du droit international public etprivé”, 32 RCADI (1930), pp. 744-747 ; and J. C. Puig, Les principes du droitinternational public américain, Paris, Pedone, 1954, pp. 23-25.

378. The prohibition of war was, thus, in fact, formulated in Europe, where,notwithstanding, it regrettably kept on being practised, with millions of mur-dered persons. The Latin American countries, in their turn, kept on condemningintervention and the use of force (short of war), which often victimized them, tothe point of contributing successfully to set forth the principles of non-interven-tion and non-use of force both in the 1945 UN Charter (Art. 2 (4)) and in the1948 OAS Charter (Art. 18). G. Arangio-Ruiz, The United Nations Declarationon Friendly Relations and the System of the Sources of International Law,Alphen aan den Rijn, Sijthoff, Noordhoff, 1979, pp. 118-120.

379. With historical roots in the I and II Hague Peace Conferences (1899 and1907, respectively).

380. ICJ, Corfu Channel (United Kingdom v. Albania), Merits, ICJ Reports1949, p. 35.

Law had become opinio juris communis. Three decades after the his-torical II Hague Peace Conference, the principle of the non-use offorce found eloquent expression, in the American continent, in theDeclaration of Principles adopted by the Inter-American Conferenceof Lima of 1938 377. Shortly afterwards, that principle transcendedthat regional ambit to reach the universal one, set forth as it was inArticle 2 (4) of the UN Charter 378, in culmination of a long anddense evolution of consolidation of the prohibition of the threat oruse of force 379. Shortly afterwards, in its Judgment in the CorfuChannel case (1949), the International Court of Justice (ICJ)endorsed the principle of non-use of force in clear and emphaticterms :

“The Court can only regard the alleged right of interventionas the manifestation of a policy of force, such as has, in thepast, given rise to most serious abuses and such as cannot,whatever be the present defects in international organization,find a place in International Law. Intervention is perhaps stillless admissible in the particular form it would take here ; for,from the nature of things, it would be reserved for the mostpowerful States, and might easily lead to perverting the admin-istration of international justice itself.” 380

Subsequently, three significant Declarations, adopted by the UNGeneral Assembly in a period of less than two decades — the 1970Declaration on Principles of International Law concerning FriendlyRelations and Co-operation among States in Accordance with the


381. Cf. Chap. III, supra.382. Which, reflecting a minimum consensus on a matter surrounded by

much discussion, limited itself to the use of armed force in inter-State relations,conferring upon the UN Security Council the power of determination of the actof aggression. The Definition incorporated the principle of non-recognition ofsituations generated by aggression, and had the merit of securing the least,namely, the Security Council could no longer ignore an act of aggression allegedby certain States, without opposition ; J. Zourek, “Enfin une définition de l’ag-gression”, 20 AFDI (1974), pp. 9-30.

383. Conformed by a preamble of 21 paragraphs and an operative part with33 paragraphs.

384. C. Gray, International Law and the Use of Force, Oxford, UniversityPress, 2000, pp. 5, 27-28 and 51.

385. Paragraph 10. It further referred to, and insisted on, disarmament, andacknowledged the relations between the principle at issue and other principles ofInternational Law, such as those of peaceful settlement of disputes and of theduty of international co-operation ; cf. T. Treves, “La Déclaration des NationsUnies sur le renforcement de l’efficacité du principe du non-recours à la force”,33 Annuaire français de droit international (AFDI) (1987), pp. 383, 388-390and 396-398.

386. M. Díez de Velazco, Las Organizaciones Internacionales, 12th ed.,Madrid, Tecnos, 2002, pp. 177-178.

387. E. Jiménez de Aréchaga, El Derecho Internacional Contemporáneo,Madrid, Tecnos, 1980, pp. 116-117 ; and cf. E. Jiménez de Aréchaga, “Inter-national Law in the Past Third of a Century”, 159 RCADI (1978), pp. 87 and111-113.

Charter of the United Nations 381, the 1974 Definition ofAggression 382, and the 1987 Declaration on Enhancing theEffectiveness of the Principle of the Non-Use of Force 383 — clearlyexpressed the view prevailing in the international community thatthe prohibition of the use of force or of forcible intervention wasgenerally understood in absolute terms 384. The 1987 Declarationrestated the principle as set forth in the UN Charter and numerousother documents, and asserted its universal character 385.

The UN International Law Commission itself, on its part,endorsed (in 1966) the understanding that the prohibition by the UNCharter of the use of force has the character of jus cogens, andexpressed (in 1978) the view that a violation of the prohibition ofaggression can result in an international crime 386. As recalled byE. Jiménez de Aréchaga, except for the hypothesis of self-defence inthe terms of the UN Charter and of an enforcement measure orderedor duly authorized likewise by an international organization such asthe United Nations, the use of force constitutes a delict 387. On theoccasion of the fiftieth anniversary of the Hague Academy ofInternational Law, in his survey of the contribution of the courses atthe Academy to the development of International Law, R.-J. Dupuyremarked that


388. R.-J. Dupuy, “La contribution de l’Académie au développement du droitinternational”, 138 RCADI (1973), p. 58.

389. ICJ, Nicaragua v. United States case, Judgment of 27 June 1986 (Merits),ICJ Reports 1986, p. 100, para. 190 ; in this connection, the ICJ expressly referredto the 1970 Declaration on Principles, and to the 1975 Helsinki Final Act ; cf. ibid.,p. 100, paras. 188-189, and cf. p. 84.

390. I. Fabela, Intervention, Paris, Pedone, 1961, p. 232 ; I. Fabela, Inter-vención, 1st ed., Mexico, UNAM, 1959, pp. 141 and 26.

391. The principle of the juridical equality of States, just as that of the equal-ity before the Law, are antithetical to any schemes of unilateralism or self-help,which aggravate factual inequalities inevitably privileging the great powers.

“l’Académie a, sans nul doute, éprouvé dès le début beaucoupde répugnance à admettre qu’il puisse y avoir un droit de l’Etatà recourir à la force” 388.

In the same understanding of the absolute prohibition of recourseto force have also manifested themselves — besides successiveresolutions of the UN General Assembly — the Final Act of theConference of Security and Co-operation in Europe (Helsinki,1975), and the Charter of Paris for a New Europe (of 21 November1990). Thus, restatements of that fundamental principle of Interna-tional Law multipled themselves along the years, in doctrine, case-law, and international practice, giving unequivocal testimony of itscrystallization, continuing validity, and imperative character. The ICJitself, in the Nicaragua v. United States case (1986), reasserted theprinciple of the prohibition of the use of force as “being not only aprinciple of customary International Law but also a fundamental orcardinal principle of such law” 389. The principle at issue, further-more, served along the years as basis for the conclusion of numeroustreaties and instruments in the domains of disarmament and of main-tenance of international peace and security. The contemporaryapologists of the use of force seem to make abstraction of one centuryof evolution of International Law.

III. The Primacy of Law over Force as a Cornerstoneof Contemporary International Law

Interventions in inter-State relations disclose the disparities ofpower among States, unilaterally decided by the same power whichexecutes them, acting unjustifiably as “judge and party in eachcase”, perpetrating “acts of force against those who cannot defendthemselves” 390. Interventions become the privilege, and monopoly,of the great powers 391 ; the weaker count on the Law to defend them-


392. J. Castañeda, Obras Completas, Vol. I : Naciones Unidas, México D.F.,Colegio de Mexico, Secretaría de Relaciones Exteriores, 1995, p. 522.

393. Only in the armed conflicts and despotisms of the twentieth century,86 million human beings were killed.

394. This was evidenced more than half a decade ago, when, as from 1998,one attempted to “justify” such use of force by means the invocation of analleged “implicit authorization” of the UN Security Council ; in the followingyear, one attempted to “explain” the use of force by means of an alleged “autho-rization ex post facto”, by the same Security Council (bombardments of Iraq,1998, and of Kosovo, 1999, respectively). With that, one attempted to render“relative” one of the basic principles of the UN Charter, that of the prohibitionof threat or use of force, set forth in Article 2 (4) of the UN Charter.

395. Cf. A. A. Cançado Trindade, “Los Aportes Latinoamericanos al Derechoy a la Justicia Internacionales”, in Doctrina Latinoamericana del DerechoInternacional, Vol. I (eds. A. A. Cançado Trindade and A. Martínez Moreno),San José, Costa Rica, IACtHR, 2003, pp. 33-64.

396. R. P. Anand, “Sovereign Equality of States in International Law”, 197RCADI (1986), pp. 54, 58, 107 and 164.

397. Cf., e.g., B. Simma (ed.), The Charter of the United Nations — ACommentary, Oxford, Oxford University Press, 1994, pp. 675-676 ; A. Cassese,“Article 51”, in La Charte des Nations Unies — Commentaire article par article(eds. J.-P. Cot and A. Pellet), Paris, Brussels, Economica, Bruylant, 1985,pp. 770, 772-773, 777-778 and 788-789 ; I. Brownlie, International Law and theUse of Force by States, Oxford, Clarendon Press, 1981 (reprint), pp. 275-278 ;J. Zourek, L’interdiction de l’emploi de la force en droit international, Leiden,Geneva, Sijthoff, Inst. H. Dunant, 1974, p. 106, and cf. pp. 96-107 ; H. Kelsen,Collective Security under International Law (1954), Union, New Jersey, Law-book Exchange Ltd., 2001 (reprint), pp. 60-61 ; Chr. Gray, International Lawand the Use of Force, op. cit. supra footnote 384, pp. 112-115 and 192-193.

selves, and rely on the precise formulation and compulsory applica-tion of “a universal normative order” 392. The contemporary heraldsof militarism do not seem to take into account the enormous sacri-fices of past generations 393. In an historical moment like the presentone, of sombre recrudescence of indiscriminate use of force 394, inwhich it regrettably appears again trivial to speak of war, there ispressing need to face the new threats to international peace and secu-rity within the framework of the UN Charter, and to insist on therealization of justice at the international level 395 as the best guaranteefor peace. Only with the strengthening of the United Nations andother international organizations of universal character, with strictobservance of the general principles of International Law, can onecontain and control the frenzy of violence, unilateralism and self-help 396, based usually on force rather than Law.

The more lucid legal doctrine and the more learned commentariesof the UN Charter point out that the letter and spirit of its Article 51(on self-defence) are opposed to the pretension of the so-called “pre-ventive self-defence”, and definitively disauthorize it 397. Its own legis-lative history clearly indicates that Article 51 is subordinated to the


398. Cf. H. Kelsen, The Law of the United Nations, London, Stevens, 1951,p. 792.

399. J. Delivanis, La légitime défense en droit international public moderne,Paris, LGDJ, 1971, pp. 50-53, and cf. pp. 42, 56 and 73 ; L. D. San Martino,Legítima Defensa Internacional, Buenos Aires, Ed. Ciudad Argentina, 1998,pp. 30-31 and 40-42, and cf. pp. 48-49.

400. In his thoughtful account of that crisis, A. Chayes disclosed that “pre-ventive self-defence” was at a stage contemplated by some “realists” naturallysupporting the unrestricted use of force, but was fortunately promptly discarded(A. Chayes, The Cuban Missile Crisis, Oxford, University Press, 1974, pp. 62-66), and sound reason at last prevailed, to the benefit of the then present, andsucceeding, generations, ultimately to the benefit of humankind.

401. G. I. Tunkin, El Derecho y la Fuerza en el Sistema Internacional,Mexico, UNAM, 1989, pp. 121, 151 and 155 ; and cf., to the same effect, thewarning — in face of the constant growth of human capacity of destruction —of Quincy Wright, A Study of War, 2nd ed., Chicago, London, University ofChicago Press, 1983 (Midway reprint), pp. 404 and 372-373.

402. A. A. Cançado Trindade, “El Primado del Derecho sobre la Fuerza comoImperativo del Jus Cogens”, in Doctrina Latinoamericana del Derecho Inter-nacional, op. cit. supra footnote 370, pp. 51-66.

403. J. A. Pastor Ridruejo, “Ha Sido Legal el Uso de La Fuerza enAfganistán ?”, in Los Retos Humanitarios del Siglo XXI (ed. C. Ramón Chornet),Valencia, PUV, University of Valencia, 2004, pp. 103 and 105-106.

fundamental principle of the general prohibition of the threat or useof force (Article 2 (4) of the Charter), besides being subjected to thecontrol of the Security Council 398. The unconvincing and frustratedattempts to widen the scope of Article 51 (on self-defence) of theUN Charter, so as to encompass an alleged and unsustainable “pre-ventive self-defence”, have never succeeded to provide an answer tothe objection to the effect that to admit it would be to open the doorto reprisals, to the generalized use of force, to aggression, amidst themost complete conceptual imprecision 399 and discretionality (of thepowerful). Had the so-called “doctrine” of “preventive self-defence”been applied, for example, in the Cuban missile crisis (1961-1962),the world would possibly no longer exist, fatally victimized by theuse of nuclear weapons by the two superpowers of the epoch 400. Inour days, with the alarming proliferation of weapons of massdestruction, the principle of the prohibition of the threat and use offorce (Art. 2 (4)) of the UN Charter imposes itself even more force-fully 401, disclosing a truly imperative character 402.

In fact, Article 2 (4) prohibits both the use and the threat of armedforce. Nowadays, the institutional response to threats or breaches ofpeace or acts of aggression is found in Chapter VII of the UNCharter, not in “preventive self-defence” (a privilege of the greatpowers), which is disruptive, aggravating disorder and anarchy inthe international community 403. Under the UN Charter there is no


404. L. Condorelli, “Vers une reconnaissance d’un droit d’ingérence à l’en-contre des ‘Etats voyous’ ?”, in L’intervention en Irak et le droit international(eds. K. Bannelier, O. Corten, Th. Christakis and P. Klein), Paris, Pedone,CEDIN, 2004, pp. 51-52 and 56.

405. As illustrated by the negative reactions and criticisms to the so-called“preventive” attacks by Israel on Iraq (in 1981), by South Africa on Lesotho (inthe epoch of apartheid, by the United States on Sudan (in 1998), and by Israelin the “six-day-war” (in 1967. Cf. Th. Christakis, “Vers une reconnaissance de lanotion de guerre préventive ?”, in L’intervention en Irak et le droit international(eds. K. Bannelier, O. Corten, Th. Christakis and P. Klein), Paris, Pedone,CEDIN, 2004, pp. 23-25 and 27.

406. Th. Christakis, op. cit. supra footnote 405, pp. 20-21 ; not surprisingly,there are no UN resolutions endorsing “preventive” self-defence, and allregional treaties on security (from 1935 to date) condition self-defence to a priorarmed attack (ibid., pp. 22-23).

407. Cf. F. Nguyen-Rouault, “L’intervention armée en Irak et son occupationau regard du droit international”, 108 Revue générale de droit international pub-lic (2003), pp. 835-864 ; O. Corten, “Opération ‘Iraqi Freedom’ . . .”, op. cit.infra footnote 413, pp. 205-243.

408. J. Castañeda, Obras Completas, Vol. I : Naciones Unidas, Mexico D.F.,Colegio de Mexico, Secretaría de Relaciones Exteriores, 1995, p. 522. And cf.G. Guerrero, La codification du droit international, Paris, Pedone, 1930, pp. 182and 175, and cf. pp. 9-10, 13, 24, 27 and 150 ; A. Álvarez, Exposé de motifset Déclaration des grands principes du droit international moderne, Paris,

“anticipatory self-defence”, which only challenges the general prin-ciples of International Law that have preserved international peaceand security throughout the last six decades 404. What is “anticipa-tory” is Law itself, rather than the use of force. “Preventive attacks”have no support in international practice either 405.

It has been aptly pointed out that, if permissible self-defence(under the UN Charter) is governed by the principles of necessityand proportionality, how will the so-called “preventive” self-defencecomply with the principle of proportionality if the armed attack hasnot occurred ? This would mean that a State victimized by an armedaggression would have its self-defence limited by the requisite ofproportionality, while a State which invokes “preventive” self-defence would have no such limitation, other than its own subjectiveassessment of the situation, which would lead to a juridical absur-dity 406.

“Preventive” self-defence is, not surprisingly, rejected by theoverwhelming majority of States 407 : it would be open only to thegreat powers, undermining the principle of the juridical equality ofStates, sinking the world in anarchical self-help, aggravating theeffects of factual disparities of power in the international scenario.What is needed, quite on the contrary, is “a universal normativeorder” 408. Article 51 of the UN Charter, as consistently interpreted


Eds. Internationales, 1938, pp. 8-9, 16-21 and 51 ; A. Álvarez, Le droit interna-tional de l’avenir, Washington, Institut Américain de Droit International, 1916,pp. 7-8, 26, 71, 114, 134-136 and 146-149 ; R. Fernandes, A Sociedade dasNações, Rio de Janeiro, Imprensa Nacional, 1925, pp. 5-6, 9 and 26.

409. These principles warn that any exception to the regular operation of suchsystem ought to be restrictively interpreted.

410. And deliberately confusing and manipulating the contents and legaleffects of UN resolutions, such as, e.g, the recent attempt to “link” SecurityCouncil resolution 1441 (particularly its vague and generic paragraph 13), ofNovember 2002, to Security Council resolutions 678 (of 1990) and 687 (of1991), adopted much earlier in a distinct context, to try in vain to justify “pre-ventive” armed attacks.

411. O. Corten, Le retour des guerres préventives : le droit internationalmenacé, Brussels, Ed. Labor, 2003, pp. 42-44, 56 and 80.

and applied to date, has not been “amended” by the practice ofpower-holders or self-helpers ; it is the UN Security Council thatregulates the use of force in the international system, in accordancewith the relevant provisions of the UN Charter.

The current attempted return, by the contemporary apologists ofthe use of force, to “preventive wars”, is unwarranted and retro-grade, a dangerous threat to the achievements of International Lawin a century of evolution (from the two Hague Peace Conferences, of1899 and 1907, until the present). The system of collective securityof the Charter, essential to world peace, was erected upon the prin-ciples of the prohibition of the threat or use of force in inter-Staterelations and of the peaceful settlement of international disputes 409.Nothing in International Law authorizes a State, or a group of States,to launch sponte sua an international armed attack (such as the inva-sion and occupation of Iraq, in 2003) — outside the framework ofthe UN Charter 410 — under the pretext of dismantling arsenals ofweapons of mass destruction — while a few of them possess someof the major arsenals of weapons of mass destruction in the world.

To that end, there are multilateral mechanisms of control and pro-hibition, created by international conventions, which are to beapplied and strengthened, towards world disarmament. There are,moreover, the enforcement measures foreseen under Chapter VII ofthe UN Charter, to face threats to international peace and security, tobe applied by a strengthened United Nations. The much-needed andmuch-protracted reforms of the UN Charter appear nowadays neces-sary and urgent, in order to strengthen the United Nations system ofcollective security, so as to enable the United Nations to securerespect for the principles and purposes set forth in Articles 2 and 1of its Charter 411.


412. Cf., e.g., Ph. Weckel, “L’emploi de la force contre la Yougoslavie ou laCharte fissurée”, 104 Revue générale de droit international public (RGDIP)(2000) pp. 19-36 ; M. Šahović, “Le droit international et la crise en ex-Yougoslavie”, 3 Cursos Euromediterráneos Bancaja de Derecho Internacional,Castellón, Spain (1999) pp. 417-418 ; J. M. Ortega Terol, La Intervención de laOTAN en Yugoslavia, Oviedo, Septem Ed., 2001, pp. 19-21 and 39-40 ;D. Momtaz, “ ‘L’intervention d’humanité’ de l’OTAN au Kosovo et la règle dunon-recours à la force”, 82 RICR (2000), No. 837, pp. 89-101 ; P. Kovács,“Intervention armée des forces de l’OTAN au Kosovo — Fondement de l’obli-gation de respecter le droit international humanitaire”, 82 RICR (2000), No. 837,pp. 122 and 127-128, and cf. pp. 119-120 and 124.

413. This appears, moreover, as the only way to secure a “minimum of inter-national cohesion” in face of the challenges currently facing the internationallegal order ; L.-A. Sicilianos, “L’autorisation par le Conseil de sécurité derecourir à la force : une tentative d’évaluation”, 106 RGDIP (2002), pp. 7, 39-40, 42-43 and 47-48. And cf. O. Corten, “Opération Iraqi Freedom : peut-onadmettre l’argument de l’ ‘autorisation implicite’ du Conseil de sécurité ?”, 36RBDI (2003), pp. 218-219, 224-227 and 237-243.

414. A. Ulloa, Derecho Internacional Público, Vol. I, 2nd ed., Lima, Impr.Torres Aguirre, 1939, pp. 3 and 14. Considerations of power, on their turn, arenot static or permanent factors at the international level, but are rather constantlychanging, “lasting or disappearing in the evolution of history” ; A. Ulloa,Derecho Internacional Público, Vol. II, 4th ed., Madrid, Ed. Iberoamericanas,1957, p. 218, and cf. p. 460.

415. Ibid., Vol. II, p. 301.416. A. Ulloa, Derecho International Público, Vol. I, cit. supra footnote 414,

pp. 21-22 and 74.

It is in difficult moments of world crisis such as the current one,that one ought to, with all the more reason, reassert and preserve thefoundations and principles of International Law. “Implicit authoriza-tion” and “authorization ex post facto” by the Security Council ofthe use of force are manifest distortions of Chapter VII of the UNCharter 412. In the operation of the system of collective security, thereis a presumption in favour of peaceful settlement, and eventualexceptions to that are to be restrictively interpreted, as that systemwas built upon the principles of non-use of force and peacefulsettlement of disputes 413.

IV. The Emerging Right to Humanitarian Assistance

The idea of justice underlies International Law from the thinkingof its founding fathers to our days, in the adoption and applicationof enduring norms that can secure international peace 414. Invokinga “collective conscience” 415, A. Ulloa drew attention, in the mid-twentieth century, to the progressive universalization of InternationalLaw, remarking that it was not surprising that the “rules of humani-tarian character” were the first ones to be universally applied 416. The


417. Cf. ICRC, Customary International Humanitarian Law (eds. J.-M.Henckaerts and L. Doswald-Beck), Cambridge, University Press, 2005, Vol. I,pp. ix-liii and 3-621 ; Vol. II, pp. 3-1982 ; and Vol. III, pp. 1983-4411.

418. For critical accounts, cf., e.g., A. Destexhe, Rwanda and Genocide in theTwentieth Century, London, East Haven Conn., Pluto Press, 1995, pp. 1-88 ;B. Bruneteau, Le siècle des génocides — Violences, massacres et processusgénocidaires de l’Arménie au Rwanda, Paris, A. Colin, 2004, pp. 202-214 ;K. A. Acheampong, “Our Common Morality under Siege : The Rwanda Genocideand the Concept of the Universality of Human Rights”, 4 Review of the AfricanCommission on Human and Peoples’ Rights (1994), pp. 31-40.

419. Created in the region by decision of the UN Security Council during theconflict.

420. Cf. criticisms, in e.g., A. Roberts, “El Papel de las CuestionesHumanitarias en la Política Internacional en los Años Noventa”, in [VariousAuthors,] Los Desafíos de la Acción Humanitaria — Un Balance, Barcelona,Icaria Ed., 1999, pp. 49, 62-63 and 70 ; D. Momtaz, “ ‘L’intervention d’huma-nité’ de l’OTAN au Kosovo et la règle du non-recours à la force”, 82 Revueinternationale de la Croix-Rouge (RICR) (2000), No. 837, pp. 89-101 ; P. Kovács,“Intervention armée des forces de l’OTAN au Kosovo — Fondement de l’obli-gation de respecter le droit international humanitaire”, 82 RICR (2000), No. 837,pp. 122 and 127-128, and cf. pp. 119-120 and 124.

421. It has become manifest that “interventions” of a “humanitarian” charac-ter (by a handful of States) were incapable of “solving” cases of massive ethnicviolence and of grave and systematic violations of human rights ; A. J.Kuperman, The Limits of Humanitarian Intervention — Genocide in Rwanda,Washington DC, Brookings Institution, 2001, pp. vii-ix and 109-119.

422. The Ministerial Declaration of 24 September 1999 of the Meeting ofForeign Ministers of the Group of 77 — as pertinently recalled by Ian Brownlie— distinguished between “humanitarian assistance” and other UN activities, and“rejected the so-called right of humanitarian intervention” as without foundationin the UN Charter or in International Law (para. 69) ; this represented the viewof 132 States, including 23 from Asia, 51 from Africa, 22 from Latin Americaand 13 from the Arab world. I. Brownlie, “‘International Law and the Use ofForce by States’ Revisited”, 21 Australian Year Book of International Law(2001), p. 21.

worldwide survey Customary International Humanitarian Law(2005), recently undertaken by the International Committee of theRed Cross, identifies the universal common core of InternationalHumanitarian Law 417.

Throughout the nineties, the tragedy of the genocide in Rwanda(1994) 418, the difficulties of defining “security areas” in the case ofBosnia and Herzegovina (1993-1995) 419, and the much-criticizedNATO “campaign of bombardments” in the case of Kosovo (1999) 420,among others, have drawn attention to the need to enhance humani-tarian assistance on a concerted multilateral basis 421, within theframework of the UN Charter (of a strengthened United Nations), insearch of the realization of justice, putting an end to iniquities.Distinctly from “interventionist” operations 422 — always surroundedby controversy — the right to humanitarian assistance finds clear


423. Resolution 43/131, of 8.12.1988 ; and resolutions 45/100, 45/101, and45/102, of 14.12.1990 ; and resolution 46/182, of 19.12.1991.

424. M. C. Márquez Carrasco, Problemas Actuales sobre la Prohibición delRecurso a la Fuerza en Derecho Internacional, Madrid, Tecnos, 1998, pp. 204-205. As to the free access to victims being a “customary rule”, cf. A. do AmaralJúnior, O Direito de Assistência Humanitária, Rio de Janeiro, Ed. Renovar,2003, pp. 249-250.

425. C. Zanghi, “Fondements éthiques et moraux du droit à l’assistancehumanitaire”, in [Various Authors,] Colloque international sur le droit à l’assis-tance humanitaire — Actes (Paris, 25-27.1.1995), Paris, UNESCO, 1996, pp. 7and 10, and cf. pp. 3-10 ; and cf. J.-M. Arbour, Droit international public, 4thed., Cowansville, Quebec, Ed. Y. Blais, 2002, p. 648 ; A. Dieng, “L’action dusystème des Nations Unies et le droit à l’assistance humanitaire”, in [VariousAuthors,] Colloque international sur le droit à l’assistance humanitaire . . ., cit.supra (this footnote), pp. 50 and 52-53, and cf. pp. 47-53.

426. E.g., UN General Assembly resolutions 43/131 (of 08.12.1988), 45/100(of 14.12.1990) and 46/182 (of 19.12.1991).

427. A. A. Cançado Trindade, Tratado de Direito Internacional dos DireitosHumanos, Vol. I, 2nd ed., Porto Alegre, Brazil, S.A. Fabris Ed., 2003, pp. 429-433.

and unequivocal support in International Law, and the UnitedNations Organization has contributed to that. Successive resolutionsof the UN General Assembly 423 have effectively expressed a “uni-versal recognition of the right of the victims to humanitarian assis-tance” ; the international legal order has, thereby, “experienced inthis matter the evolution from the right of humanitarian assistanceto the right to humanitarian assistance” 424. Instead of unsustainable“humanitarian” intervention, the right to humanitarian assistance isthus affirmed, with emphasis on the needs of the victims 425.

Humanitarian assistance, as it ensues from some UN GeneralAssembly resolutions, is in fact ineluctably linked to the fulfilmentof the basic needs of the victims 426. It is the victims who occupy acentral position in humanitarian assistance, which is enhanced withthe faithful observance and application of the norms of InternationalHumanitarian Law. While the so-called “humanitarian intervention”shifts attention to the factual or material capacity to intervene, humani-tarian assistance evokes, on a distinct plane, the imperatives of humansolidarity. The former singles out the factual potential of action ofthe intervening agent, the latter the fulfilment of the basic needs ofthe victims, as titulaires of the right to humanitarian assistance 427.

The emphasis is, thus, in my understanding, to be placed on theassistance to be given to those in need of it, rather than on the fac-tual capability of the intervening actors. The adequate criterion liesin the focus on the beneficiaries of assistance, those in need of it, andentitled to it, rather than on those rendering it. The former are the


428. A. A. Cançado Trindade, “Reply [Assistance Humanitaire]”, in 70Annuaire de l’Institut de droit International, Session de Bruges (2002-2003),Part 1, pp. 536-540.

429. Cf., in this respect, the Guiding Principles on the Right to HumanitarianAssistance (1993) of the International Institute of Humanitarian Law in SanRemo (Principles 1-3 and 6).

430. The UNESCO Colloquy of Paris (of 1995) on the matter effectively con-cluded by approaching the question as from the angle of the subjective right ofthe victims to humanitarian assistance, of the determination of the active andpassive subjects of this right, and of the pressing need to secure the direct accessto the victims to be assisted or protected — foreseen, in fact, by UN GeneralAssembly resolutions 43/131 (of 8.12.1988) and 45/100 (of 14.12.1990) ; cf.“Conclusions du Colloque”, in Colloque international sur le droit à l’assistancehumanitaire . . ., op. cit. supra footnote 425, pp. 197-198, and cf. pp. 195-198.

431. E.g., some provisions of the IV Geneva Convention on InternationalHumanitarian Law of 1949 (Arts. 23, 55 and 59-61) and of the Protocols I(Arts. 69-70 and 54) and II (Arts. 14 and 18) of 1977, and certain basic principlesof the UN Charter besides resolutions of the General Assembly and the SecurityCouncil on humanitarian assistance ; H. Fischer and J. Oraá, Derecho Inter-nacional y Ayuda Humanitaria, Bilbao, University of Deusto, 2000, p. 81, andcf. pp. 17-101 ; [Various Authors,] Colloque international sur le droit à l’assis-tance humanitaire . . ., op. cit. supra footnote 425, pp. 133-135 and 137-138(intervention by V. Muntarbhorn).

432. This right has also found expression in certain resolutions of the GeneralAssembly (cf. supra) and the Security Council (e.g., those pertaining to the con-flicts of Somalia and Bosnia-Herzegovina) ; the same does not occur with the so-

ones who can best identify their own basic needs of assistance ; theyare the titulaires of the right to humanitarian assistance 428. Theultimate foundation for the exercise of such a right is the dignityinherent in the human person, in all human beings.

If attention is drawn to those who require assistance — as it oughtto be — and these latter deem that they indeed need it, the aim ofhumanitarian assistance will more appropriately be fulfilled. Recentdevelopments in this domain have in fact disclosed that humani-tarian assistance has been evolving in the light of the needs of pro-tection, in the conceptual framework of the corpus juris ofthe International Law of Human Rights and of InternationalHumanitarian Law, which provide elements for the construction of aright to humanitarian assistance, and the corresponding duty to pro-vide it 429. The focus would, in sum, be on the human person, on thetitulaires of the right to humanitarian assistance 430. The realizationof this right to humanitarian assistance lies in the confluencebetween International Humanitarian Law, International HumanRights Law and the law of the United Nations 431. It finds inspiration,above all, in the principle of humanity, permeating customary Inter-national Law itself, and enabling the victims themselves to requestand receive humanitarian assistance 432.


called “humanitarian intervention” (on the part of one or more States individu-ally, or a group of them), which finds no support in the UN Charter (or othertreaties), nor in resolutions of the General Assembly or the Security Council.H. Fischer and J. Oraá, op. cit. supra footnote 431, pp. 82-83 and 86-87.

433. Such situations bring to the fore the duty erga omnes to provide therequested humanitarian assistance.

434. To the extent that their international legal personality and capacity isproperly acknowledged, this right may gradually become justiciable ; in its turn,the current phenomenon of the expansion of legal personality and capacity ininternational law (encompassing those of the human person) responds to a press-ing need of the international community of our days ; cf. Chaps. IX and X, infra.

435. Cf. Chap. II, supra.

There occurs, nowadays, an unfortunate diversification of sources(sometimes not even identified) of violations of human rights, ofwhich bear witness several situations of extreme hardship, distressand deprivation, which affect vulnerable sectors of the population indistinct latitudes, and call for humanitarian assistance 433. Instead ofapproaching the matter from the standpoint of the use of force, thereis pressing need to develop the potential of International Law itself— that is, of the legal elements — in the formation, progressivedevelopment and crystallization of the right to humanitarian assis-tance. In my understanding, emphasis should be laid on the primacyof law over force, in the provision of humanitarian assistance tothose who stand in need of it. The key test here would be, in myview, the clear recognition that the basic needs of assistance tohuman beings anywhere, in their quest for survival as well as in theirjust aspirations to live with dignity, ought to be fulfilled. Humanbeings are the titulaires of the right to humanitarian assistance 434.

Reference may here be made, in this connection, to the consider-able and unprecedented expansion of beneficiaries of provisionalmeasures of protection (especially those ordered by the IACtHR inthe course of the last half-decade) 435, which have contributed to thedevelopment of a right to humanitarian assistance. Such right bearswitness of the viability and desirability of rendering that assistanceon the basis of Law, rather than force, as a response to current needsof the international community, affecting vulnerable and growingsegments of the population in various countries.

V. The Decivilizing Effects of Unwarranted Use of Force

On quite a distinct level, the dangerous sophism of “preventive”armed attacks is destructive not only of the whole structure of theorganized international community, but also of the values which


436. B. Boutros-Ghali, “Le droit international à la recherche de ses valeurs :paix, développement, démocratisation”, 286 RCADI (2000), pp. 20, 18 and 30,and cf. p. 37.

437. S. Weil, Reflexiones sobre las Causas de la Libertad y de la OpresiónSocial, Barcelona, Ed. Paidós, Universidad Autónoma de Barcelona, 1995,pp. 81-82, 84 and 130-131.

438. S. Weil, “L’Iliade ou le Poème de la Guerre (1940-1941)”, in Œuvres,Paris, Quarto Gallimard, 1999, pp. 527-552.

inspire it. If, in the domestic legal order, society precedes law, at theinternational level — it has rightly been pondered — occurs pre-cisely the opposite : it is International Law which precedes interna-tional society, and this latter cannot even be conceived or exist with-out the former 436. It is the Law which is preventive or anticipatory,and not force, in the form of armed attacks, aggressions, unilateralinterventions, and terrorist acts, which violate it openly.

It may be recalled that already the ancient Greeks were aware ofthe devastating effects of the indiscriminate use of force and of warover both winners and losers, revealing the great evil of the substi-tution of the ends by the means : since the times of the Iliad ofHomer until today, all “belligerents” are transformed in means, inthings, in the senseless struggle for power, incapable even to “sub-ject their actions to their thoughts”. As Simone Weil so perspica-tiously once observed, the terms “oppressors and oppressed” almostlose meaning in face of the impotence of everyone in front of themachine of war, converted into a machine of destruction of the spiritand of fabrication of the “inconscience” 437. As in the Iliad of Homer,there are no winners and losers, all are taken by force, possessed bywar, degraded by brutalities and massacres 438. Homer’s perennialmessage is as valid and poignant in his times in ancient Greece as inour days :

“War — I know it well, and the butchery of men.Well I know, shift to the left, shift to the rightmy tough tanned shield. That’s what the real drill,defensive fighting means to me.I know it all, . . .I know how to stand and fight to the finish,twist and lunge in the War-god’s deadly dance.. . . For a young man all looks fineand noble if he goes down in war,hacked to pieces under a slashing bronze blade —he lies there dead . . . but whatever death lays bare,


439. Homer, The Iliad, New York, London, Penguin Books, 1991 (re-ed.),pp. 222 and 543-544, verses 275-281 and 83-89.

440. For an eloquent and historical account, cf., inter alia, e.g., Bartolomé deLas Casas, Brevísima Relación de la Destrucción de las Indias (1552), Bar-celona, Ediciones 29, 2004 (re-ed.), pp. 7-94 ; Bartolomé de Las Casas,Tratados, Vol. I, Mexico, Fondo de Cultura Económica, 1997 (reprint), pp. 14-199, and cf. pp. 219, 319 and 419.

441. On the Laws, Book II, circa 51-43 BC.442. M. T. Cicero, On the Commonwealth and On the Laws (ed. J. E. G.

Zetzel), Cambridge, University Press, 2003 (re-ed.), Book III, ibid., p. 172.443. Circa late 50s-46 BC.444. M. T. Cicero, The Republic — The Laws, Oxford, University Press,

1998, p. 166 (Book III, para. 42).445. Cit. in La paix (Textes choisis, ed. M. Lequan), Paris, Flammarion, 1998,

pp. 173-174.

all wounds are marks of glory. When an old man’s killedand the dogs go at the grey head and the gray beard. . . — that is the cruellest sightin all our wretched lives !” 439

Throughout the centuries, the “butchery of men” has kept occur-ring endlessly 440, and lessons do not yet seem to have been suffi-ciently learned — in particular the pressing need and duty to securethe primacy of Law over brute force. Thus, in ancient Rome M. T.Cicero pondered, in his De Legibus 441, that there was “nothing moredestructive for States, nothing more contrary to right and law,nothing less civil and humane, than the use of violence in publicaffairs” 442. And in his De Republica 443, Cicero added that nothingwas “more damaging to a State” and “so contrary to justice and law”than recourse “to force through a measure of violence”, where acountry had “a settled and established constitution” 444.

In this same line of concern, by the end of the eighteenth century,in his essay on Perpetual Peace (1795), Immanuel Kant eloquentlywarned :

“il faut ajouter qu’être stipendié pour tuer ou être tué sembleimpliquer l’utilisation des hommes comme de simplesmachines et instruments aux mains d’autrui (de l’Etat), ce quine se laisse pas bien accorder avec le droit de l’humanité dansnotre propre personne” 445.

Whether perpetrated by States (or in their name) or non-Stateentities, the brutalities and massacres in different parts of the world,of past decades and of the sombre times we now live in, have pro-


446. Art. 9 (2).447. Coined in Article 38 (1) (c) of the ICJ Statute.448. This associates the expression to an international legal order of a uni-

versal dimension, which seeks justice and peace and discards unwarrantedrecourse to force ; J. A. Carrillo Salcedo, Soberanía de los Estados y DerechosHumanos en Derecho Internacional Contemporáneo, 2nd ed., Madrid, Tecnos,2001, p. 180. From this outlook, “civilized nations” are those which fullyrespect, and ensure respect for, the exercise of human rights to all persons undertheir respective jurisdictions, as the best measure of the degree of civilization” ;A. A. Cançado Trindade, Tratado de Direito Internacional dos DireitosHumanos, Vol. II, Porto Alegre, Brazil, S.A. Fabris Ed., 1999, p. 344. In thisrespect, already in the nineteenth century, a universal writer, F. M. Dostoievski,warned that the degree of civilization reached by any society can be assessed byentering into its prisons and detention centres ; F. M. Dostoievski, Souvenirs dela maison des morts (1862), Paris, Gallimard, 1997 (re-ed.), pp. 35-416.

found decivilizing effects. The 1997 UNESCO Declaration onthe Responsibilities of the Present Generations towards FutureGenerations stated that

“The present generations should spare future generations thescourge of war. To that end, they should avoid exposing futuregenerations to the harmful consequences of armed conflicts aswell as all other forms of aggression and use of weapons, con-trary to humanitarian principles.” 446

Nothing in the UN Charter transfers to one or more of its memberStates the power to decide unilaterally that the peaceful means ofsettlement of international disputes have been “exhausted”, andnothing in the UN Charter authorizes one or more of its memberStates to decide motu propio, and pursuant to their own criteria (orlack of them) and strategies, as to the use of armed force. Those whoproceed in this way, besides violating the UN Charter and the basicprinciples of International Law, have their international responsi-bility engaged. In sum, no State is allowed to place itself abovethe Law.

“Preventive” armed attacks, unilaterally launched, have profounddecivilizing effects. What, then, in our days, do the terms “civilizednations” 447 mean, devoid of the colonialist connotation of the past ?“Civilized nations” are no other than those which respectInternational Law 448 and abide by its general principles. Ultimately,“civilized nations” are those which recognize and respect, in any cir-cumstance, the primacy of Law over force as an imperative of juscogens. In the recent episode of the invasion and occupation of Iraq(2003), and the ongoing hostilities in the occupied country, the most


449. A situation portrayed by some “strategists” (and part of the media) as“collateral damages”, a euphemism with which they seek to avoid listeningto the voice of conscience, and which reflects in an unequivocal way the deepcrisis of values in the world in which we live.

450. Cf. J. Cardona Lloréns, “Libération ou occupation ? Les droits et devoirsde l’Etat vainqueur”, in L’intervention en Irak et le droit international (eds.K. Bannelier, O. Corten, Th. Christakis and P. Klein), Paris, Pedone, CEDIN,2004, pp. 221-250 ; G. Abi-Saab, “Les Protocoles additionnels, 25 ans après”, inLes nouvelles frontières du droit international humanitaire (ed. J.-F. Flauss),Brussels, Bruylant, 2003, pp. 33-36 ; Y. Sandoz, “L’applicabilité du droit inter-national humanitaire aux actions terroristes”, in ibid., pp. 71-72.

451. In its Judgment of 8.7.2004, in the case of the Brothers GómezPaquiyauri v. Peru, e.g., the IACtHR pondered that “the prohibition of torture isabsolute . . ., even in the most difficult circumstances, such as war, threat of war,‘fight against terrorism’ . . .” ; there is nowadays an “absolute prohibition of allforms of torture . . . which belongs . . . to the domain of international juscogens” (paras. 111-112).

452. It has been timely remarked, in relation to some of the armed conflictswe witness nowadays, that

“the repressive methods used by Israel against the Palestinians, the desta-bilization of Iraq after the American intervention, including the emergenceof a new terrorist resistance, the more than uncertain stabilization ofAfghanistan, the inability of Russia to bring peace to Chechnya by the useof force, none of these events is a success story” ; M. Bothe, “TheInternational Community and Terrorism”, in Les nouvelles menaces contrela paix et la sécurité internationales/New Threats to International Peaceand Security, Paris, Pedone, 2004, pp. 59-60.

453. J. Pictet, The Principles of International Humanitarian Law, 1st ed.,Geneva, ICRC, 1966, p. 36.

numerous victims — like those of terrorism in different parts of theworld — have invariably been innocent and unprotected civilians(including children) 449.

The heralds of this new Peloponnesian war of the twenty-firstcentury, like those of their predecessors over the centuries, have hadtheir decisions vested with empty words and false rhetorics, seekingthereby a hiding place in the recondite labyrinths of their ownirresponsibility (and impunity). What does one witness afterall ? Devastation, revenge, violations of International HumanitarianLaw 450 and of International Human Rights Law 451, the practice oftorture and other abuses against prisoners — opening wounds andleaving scars that will take generations to heal 452. In this line of con-cern it was pertinently warned by Jean Pictet, four decades ago, inan almost premonitory tone, that “it would be a disastrously retro-grade step for humanity to try to fight terrorism with its ownweapons” 453.

Force only generates force, and one cannot pretend to create anew “international order” on the basis of unilateralism and unwar-


454. A. Toynbee, Guerra e Civilização, Lisbon, Edit. Presença, 1963 (re-ed.),pp. 20, 29 and 178-179. And cf. J. de Romilly, La Grèce antique contre la vio-lence, Paris, Ed. Fallois, 2000, pp. 18-19 and 129-130.

455. S. Zweig, O Mundo que Eu Vi, Rio de Janeiro, Ed. Record, 1999 (re-ed.),p. 19, and cf. pp. 474 and 483, and cf. p. 160.

ranted use of force, over the corpses of thousands of innocent vic-tims (victimized by all kinds of terrorism, perpetrated by non-Stateentities as well as sponsored by States themselves), destined, amidstindifference, to oblivion. The projection in time of the cardinal prin-ciple of the prohibition of the threat or use of force cannot be over-looked. In fact, nothing in International Law authorizes a State orgroup of States to proclaim themselves defenders of “civilization”— and those which pretend to take such a course of action, makingrecourse to the indiscriminate use of force, outside the frameworkof the UN Charter, do so in the opposite sense to the purposeprofessed.

More than half a century ago (in 1950), the learned historianArnold Toynbee warned that the improvement of military techniquewas symptomatic of the “decline of a civilization”, and the growingexpenditures with militarism would fatally lead to the “ruin of civi-lizations” 454. Another remarkable writer of the twentieth century,Stefan Zweig, in referring to the “old savagery of war”, likewisewarned against the décalage between technical progress and moralascent, in the face of “a catastrophe which with one sole blow madeus move backwards a thousand years in our humanitarian endeav-ours” 455. The horrors of past conflicts in the twentieth century — thetwo world wars and successive atrocities victimizing millions ofhuman beings — should be kept in mind, in particular by the con-temporary apologists of recourse to force. It is not the function ofinternational lawyers to seek “solutions” for threats to internationalpeace and security through the use of force : this is a distortion of thelegal profession, as such solutions are to be found within the domainof Law.

VI. Final Observations : The Primacy of Law over Force as anImperative of Jus Cogens

In the last decades, one has witnessed a true conversion of thetraditional and surpassed jus ad bellum into the jus contra bellumof our days ; this is one of the most significant transformations of


456. M. C. Márquez Carrasco, op. cit. supra footnote 424, Madrid, Tecnos,1998, p. 263. For a long time already, it has been contended that, even eventualrecourse to force by States, on given occasions, has never affected the primacyof the jus cogens provision of Article 2 (4) of the UN Charter ; cf., e.g.,T. O. Elias, op. cit. supra footnote 372, p. 84 ; A. A. Cançado Trindade, “ElPrimado del Derecho sobre la Fuerza como Imperativo del Jus Cogens”, inDoctrina Latinoamericana del Derecho Internacional, op. cit. supra foot-note 370, pp. 51-66.

457. A. Truyol y Serra, Fundamentos del Derecho Internacional Público, 4thed., Madrid, Tecnos, 1977, pp. 47 and 56-57.

458. [Various Authors,] La pratique et le droit international (GenevaColloquy of 2003), Paris, Pedone, SFDI, 2004, pp. 116 and 120. It may well be,as pointed out in this Colloquy, that “persistent objectors” of yesterday havebecome “persistent violators” of today ; ibid., pp. 120, 233 and 300-301.

459. Likewise, repeated violations of International Human Rights Law andInternational Humanitarian Law have not altered these latter ; on the contrary,they have promptly reacted to such violations and have strengthened, rather thanweakened ; cf. ibid., pp. 300-301 (intervention by L. Condorelli).

460. One cannot expect an illicit act or practice to generate legal effects (exinjuria jus non oritur).

461. The XXII Congress of the Hispano-Luso-American Institute ofInternational Law (IHLADI), held in San Salvador, El Salvador, adopted adeclaration, approved by ample majority on 13 September 2002, which rejectedcategorically the “doctrine” of the so-called “preventive self-defence”, bear-ing in mind the UN Charter, customary international law and the general prin-ciples of law, as well as relevant norms and the principles of International Huma-nitarian Law. Cf. text of the declaration in IHLADI, 16 Anuario del InstitutoHispano-Luso-Americano de Derecho Internacional, Madrid (2003), pp. 657-658.

the contemporary international legal order 456. Law has an objectivevalidity, which resists the violation of its norms. It is inadmissible totry to equate Law with force, which would moreover reflect a men-tal vice consisting in not distinguishing the world of Sein from thatof Sollen 457. Law stands above force. One cannot pretend to erect anew “international order” on the basis of the use of force 458, whilethe fundamental principle applicable in that order throuth almost acentury of evolution of International Law has been precisely to theopposite effect, namely, that of non-use of force 459. Law prevailsover force. The violation of a basic principle of International Lawdoes not generate a “new practice” 460, but rather engages the inter-national responsibility of the wrongdoers.

Every faithful international lawyer has the ineluctable duty tostand against the apology of the use of force, which is manifested inour days through distinct “doctrinal” elaborations. One attempts, forexample, to widen the scope of Article 51 of the UN Charter so as toencompass an unsustainable “preventive self-defence” 461. Oneadvocates recourse to “countermeasures” (a term reminiscent of the


462. Cf. criticisms of M. Virally, “Panorama du droit international contempo-rain. Cours général de droit international public”, 183 RCADI (1983), p. 218.

463. Cf. criticisms of Ph. Allott, “State Responsibility and the Unmaking ofInternational Law”, 29 Harvard International Law Journal (1988), pp. 23-24.

464. Namely, the 1963 Convention on Offences and Certain Other ActsCommitted on Board Aircraft ; the 1970 Convention for the Suppression ofUnlawful Seizure of Aircraft ; the 1971 Montreal Convention for theSuppression of Unlawful Acts against the Safety of Civil Aviation (and its 1988Protocol) ; the 1973 UN Convention on the Prevention and Punishment ofCrimes against Internationally Protected Persons ; the 1979 UN InternationalConvention against the Taking of Hostages ; the 1980 Vienna Convention on thePhysical Protection of Nuclear Material ; the 1988 Rome Convention for theSuppression of Unlawful Acts against the Safety of Maritime Navigation (andthe 1988 Protocol for the Suppression of Unlawful Acts against the Safety ofFixed Platforms Located on the Continental Shelf) ; the 1991 MontrealConvention on the Marking of Plastic Explosives for the Purpose of Detection ;the 1997 UN International Convention for the Suppression of TerroristBombings ; and the 1999 UN International Convention for the Suppression ofthe Financing of Terrorism.

465. Namely, the 1971 OAS Convention to Prevent and Punish Acts ofTerrorism Taking the Form of Crimes against Persons and Related Extortion thatAre of International Significance ; the 1977 European Convention on theSuppression of Terrorism ; the 1987 SAARC Regional Convention onSuppression of Terrorism ; the 1998 Arab Convention on the Suppression ofTerrorism ; the 1999 Convention of the Organization of the Islamic Conference

old practices of reprisals and retaliation) 462, outside the frameworkof the truly central chapter of International Law of the internationalresponsibility of States 463. One invokes uncritically “humanitarianintervention or ingérence”, instead of vindicating the right of theaffected populations to humanitarian assistance. One speaks of “per-sistent objector”, instead of focusing attention on the needed con-struction of an opinio juris communis. One has even attempted toissue a death certificate on Article 2 (4) of the UN Charter, withoutforeseeing its harmful consequences for humankind as a whole. Onecould, in fact, compile a whole glossary of harmful neologisms,empty of any juridical meaning and bearing a potential of disastrousconsequences for the international legal order. This reflects thedangerous world in which we live, engulfed into a profound crisisof values.

The common denominator of all these new “doctrines” is theirminimization or undervaluing of the foundations of InternationalLaw, besides the emphasis on the primitivism of the indiscriminateuse of force. It is known that, for the necessary struggle against ter-rorism, within the Law, there are nowadays twelve international con-ventions and protocols at universal level 464, added to seven otherconventions at regional level 465, which are to be applied and duly


on Combating International Terrorism ; the 1999 OAU Convention on thePrevention and Combating of Terrorism ; and the 2002 OAS Inter-AmericanConvention against Terrorism.

466. The ICJ, stressing the role of opinio juris in the Nicaragua v. United Statescase (1986), effectively affirmed the fundamental character of the principle ofthe prohibition of the threat and use of force, recognized both in the UN Charter andin customary International Law; cf. ICJ Reports 1986, p. 97 para. 181.

467. Cf. cit., in this sense, in A. Cassese, “Article 51”, in La Charte desNations Unies — Commentaire article par article (eds. J.-P. Cot and A. Pellet),Paris, Brussels, Economica, Bruylant, 1985, p. 777.

468. R. St. J. Macdonald, “Reflections on the Charter of the United Nations”,in Des Menschen Recht zwischen Freiheit und Verantwortung — Festschrift fürKarl Josef Partsch, Berlin, Duncker & Humblot, 1989, p. 45 ; R. Mac-donald, “The Charter of the United Nations in Constitutional Perspective”,20 Australian Year Book of International Law (1999), p. 215 ; and cf. C. Lang,L’affaire Nicaragua/Etats-Unis devant la Cour internationale de Justice, Paris,LGDJ, 1990, pp. 135 and 253 (in relation to International HumanitarianLaw).

469. Cf. M. Díez de Velazco, Las Organizaciones . . ., op. cit. supra foot-note 386, p. 177 ; and cf. E. Schwelb, “Some Aspects of International IusCogens as Formulated by the International Law Commission”, 61 AmericanJournal of International Law (1967), pp. 946-975.

470. D. Uribe Vargas, La Paz es una Trégua — Solución Pacífica deConflictos Internacionales, 3rd ed., Bogotá, Universidad Nacional de Colombia,1999, p. 109.

complied with. At the present moment of world crisis — a truecrisis of values —, of a worrisome attempted rupture of the inter-national system of collective security, there is pressing need to reassertthe primacy of International Law over brute force 466, as an impera-tive of jus cogens. “Preventive” armed attacks and indefinite “counter-measures” do not find any support whatsoever in International Law ;on the contrary, they openly violate it. They rely on spurious “doc-trines”, which show the way back to the law of the jungle 467, besidesmultiplying their defenceless, silent and innocent victims in differentparts of the world.

The most lucid international legal doctrine has characterized theprinciple of the prohibition of the threat and use of force as belong-ing indeed to the domain of jus cogens 468, and has added that viola-tions of this principle do not weaken its imperative character 469. Thecondemnation of the use of force has been qualified as the “mostremarkable” feature of the UN Charter 470 — representing, effec-tively, a notable advance in relation to the Covenant of the League ofNations. The function of the international lawyer is not simply thatof taking note of what States — or some particular States, the mostpowerful ones — do ; his function is to identify and say what theLaw is, the Law which derives its authority from certain principles


471. A. A. Cançado Trindade, O Direito Internacional em um Mundo emTransformação, Rio de Janeiro, Edit. Renovar, 2002, p. 1109 ; and cf. Chap. I,supra.

of right reason (est dictatum rectae rationis) 471. Law, definitively,does not silence, not even when recourse is made to weapons eitherby States or non-State entities. Well above force stands the Law, justas above the will stands the conscience.


foundations of international law (85-146)

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