By Otto Spijkers
In 1970, the Assembly adopted the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, which is one of the most authoritative interpretations of some of the principles in the United Nations Charter. I was a bit surprised that the reports of the Special Committee, which initially prepared a first draft of this declaration, were not easily available on the internet. The main aim of this post is to remedy that situation. You can use the links in the text below to access the reports and other primary documents. I will also try to briefly summarize the most interesting parts of the debates.
First report
The Special Committee was established by the General Assembly in 1963, and asked to look at four essential principles suggested earlier by the Assembly: the prohibition to use force, the principle that States should settle their disputes peacefully, the non-intervention principle, and the principle of sovereign equality of States. The Assembly explicitly asked States to nominate ‘jurists,’ i.e. international lawyers, as their representatives in the Committee. And indeed, the debates clearly show the predominant influence of jurists: for example, the records reflect an intense discussion on whether State sovereignty is a product of international law or vice versa, which is something international lawyers generally enjoy discussing over lunch.
The Committee looked at the four principles listed just above and published its first report: Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States, Report 1, A/5746. In that report, the Committee concluded that there was no consensus on the meaning and content of the first three principles (non use of force, settlement of disputes and non-intervention), and that there was consensus only on a list of elements of sovereign equality. This was more or less the same list adopted earlier at the San Francisco Conference of 1945, with the addition of the element that each State had a right freely to choose its own political/economic/cultural policies.
This lack of consensus does not mean that the Committee’s debates were uninteresting. Quite the opposite is true. Most of the debates focused on the prohibition to use force. The main issue was the search for the correct interpretation of the word ‘force’ as used in Article 2(4) of the UN Charter. The smaller States believed that it included non-military force, such as political pressure and economic sanctions. Other States believed that the framework of the UN Charter, i.e. the relationship between Article 2(4) and 51 and Chapter VII, as well as the travaux préparatoires of the Charter, clearly showed that ‘force’ should be interpreted as referring to military force alone.
Because an extensive interpretation of the word ‘force’ would transform Article 2(4) essentially into a general non-intervention principle, it is interesting to link these debates to the debate about the legal consequences of the lack of a general principle of non-intervention in the United Nations Charter. According to some (United States mainly), this was not an accidental omission, and the only impermissible inter-State intervention was intervention by force, as defined in Article 2(4) UN Charter. But according to others, a more general non-intervention principle was implied in other provisions, such as the principle prohibiting the use of force itself (2(4) UN Charter), but also the principle on sovereign equality (2(1) UN Charter). Article 2(7) was also mentioned, but generally rejected since it was clearly about the Organization’s duties to respect the non-intervention principle, not the duty of States themselves.
Second Report
The Assembly responded to the publication of this first report by adding a number of developing nations to the Committee to better guarantee proper geographical representation. It also added three more principles to the list: the duty to cooperate, the principle of good faith, and the principle of self-determination of peoples.
All seven principles were studied by the Committee, and the debates were once again summarized in a report: Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States, Report 2, A/6230 (Part I), and Part II.
A debate which clearly showed the influence of the new members of the Committee, was about a right of colonial peoples to defend themselves against colonial oppression by using armed force. This was suggested as an exception to the prohibition to use force. However, no agreement on the exact meaning of the principle not to use force was reached in the end.
The principle of the peaceful settlement of dispute was discussed extensively this time. Some States openly wondered whether the UN Charter obliged States to settle all their disputes, or only those disputes that threatened the peace. In any case, if States chose to settle a dispute, they had to do this through peaceful means. Suggestions to officially label negotiations as the primus inter pares of dispute settlement mechanisms were rejected, even though all States agreed that it was in fact the most frequently used mechanism. Despite this and many other disagreements, the Committee actually adopted a first definition of the principle.
The discussion on the non-intervention principle was influenced by the Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, adopted in 1965. In fact, the Committee simply chose to adopt the definition of the non-intervention principle contained in that resolution. Interestingly, it was suggested that the principle not only prohibited interference in the affairs of States, but that it could also be applied to peoples. Moreover, it was suggested that, when a colonial power violated a peoples’ right to self-determination it acted in violation of the non-intervention principle, and other States could assist these peoples. According to the more traditional view, which considered the relations between a colonial power and its colonies as a ‘domestic affair,’ such third State assistance would actually violate the non-intervention principle. In any case, the Committee did not agree on a definition.
A suggested addition to the principle of sovereign equality, was the element that all States had a right to take part in the solution of international questions affecting their legitimate interests. In practice, this meant that all States should be allowed to become party to any treaty on any subject that concerned them, and to become a member of all international organizations that concerned them, and have the same influence as all other member States in the work of that organization. Any difference between the powers of member States in a particular organization had to be defended by reference to objective criteria. This is now generally accepted, but was somewhat controversial at the time. A general agreement was reached, which avoided the more delicate issues and basically reiterated, once again, what was said in San Francisco in 1945.
One of the new principles, not discussed in the First Report, was the duty of States to co-operate. It was suggested that the UN Charter, especially Article 56, had created a legal – as opposed to political or moral – duty to co-operate in realizing the purposes of the United Nations. The most interesting element, in my view, is whether such duty to cooperate actually introduced some kind of global distributive justice into world politics. Some suggestions indicated that this was indeed the case. The USA and some other States, for example, suggested that each State should ‘contribute to the acceleration of economic growth and the equitable elevation of standards of living throughout the world and the economic and social progress and development of other States.’ The most obvious way to do this was to provide development aid to developing States. For the moment, however, no definition of the principle could be agreed upon by all States represented in the Committee.
Another interesting new principle was that of the equal rights and self-determination of peoples. It was suggested that this principle, as used in Article 1(2) UN Charter, should be applied both to States and to peoples, but that it was currently most relevant in the colonial context. According to this principle, peoples under colonial rule – and perhaps also other peoples – had a right to choose freely their political system. As soon as this freedom was exercised and a new State formed, this should not make the right to self-determination of peoples redundant or irrelevant. Indeed, the principle continued to apply, so it was suggested, and provided the basis for the sovereign independence of the newly formed State. No agreement was reached in the end by the Committee.
Third Report
The General Assembly was happy to see that the Committee agreed on a first definition of the principle of peaceful settlement of disputes and sovereign equality of States, and suggested that the Committee should now focus on and complete the formulation of the following principles: the prohibition to use force, the duty to co-operate, the principle of self-determination, and the principle of good faith. Moreover, the Assembly explicitly asked the Committee to take Declaration on the Inadmissibility of Intervention as basis for its work on the non-intervention principle. The Committee looked at all these principles in Special Committee on Principles of International Law concerning Friendly Relations and Co-operation among States, Report 3, A/6799.
As was the case previously with the non-intervention principle, the Assembly managed to influence the debates of the Committee, this time the debates on the prohibition to use force, by adopting a resolution on the same subject. The debates were also influenced by the political situation of that time: the escalation of the Viet-Nam war was discussed, for example, and the Six Day War, even though that had little influence on the actual drafting.
Despite all these new influences, the debates were essentially a repetition of earlier years, albeit with some new arguments. It was suggested to refer to aggression as a crime against peace, but no definition of aggression could be agreed upon. It was suggested that Article 2(4) prohibited the use of force ‘in international relations,’ and that the use of force by one State against a colonial people should be seen as such ‘international’ use of force, since colonial peoples were separate entities in international law. Interestingly, the use of force by a colonial people against the colonial power was seen as not falling within Article 2(4), since that article only prohibited the use of force by a State. Self-defence was also discussed. It was suggested that a State could not invoke the right to self-defence in response to acts of terrorism, but that such defence constituted a domestic affair. Once again, a right of self-defence by colonial peoples against colonial domination was proclaimed by various States represented in the Committee. Some agreement on various elements was reached, but no definition of the principle as a whole.
The most problematic element of the duty to co-operate was the suggestion that States were not allowed to discriminate in their (economic) relations with other States. According to some, there was no rule prohibiting unequal treatment among States. For example, it was believed that States generally used all their negotiating skills to secure certain advantages for themselves in the field of international trade, and international law did not seem to prohibit such behavior. According to others, however, any unequal treatment should be prohibited. Moreover, the widening of the gap between poor and rich nations was seen as a potential threat to the peace, and thus all States were called to narrow it. Development aid was seen as a suitable means to do so, but only if the aid came without political restrictions and conditions, because such conditional aid would violate the non-intervention principle. In the end, consensus was reached on a definition of the duty to cooperate, a definition without reference to the element of non-discrimination.
One of the main problems in defining the principle of self-determination was to determine the beneficiaries of this right. It was suggested that all peoples had a right to self-determination, but others objected that this would motivate minorities within States to secede. It was thus suggested that the principle only applied to a majority within a generally accepted political unit, but this should not be understood as referring to States alone. The right to external independence and internal autonomy of peoples, organized as an independent State, could indeed be based on the principle of self-determination, or so it was suggested, but that was not the only application of the principle. Besides to States, it also applied to peoples. The suggestion that it referred only to colonial peoples was rejected. When further applications of the principle were considered, for example to ethnic minorities within a State, it was suggested that there was a link between the right to self-determination and the human right to take part in the government of one’s country, as proclaimed in the Universal Declaration of Human Rights. Bluntly put, the idea was that if minorities had an opportunity to take part in the politics of the State they lived in, there would be no right to secede. Another interesting question was what exactly constituted the full implementation of this principle of self-determination. Some believed only a sovereign State could be considered as such; others believed that what mattered was that peoples achieved some form of self-government through their own free choice, and if they chose a free association with an existing State, or integration into an existing State, that would be just as acceptable as the choice to become an independent State. In any case, no agreement on the principle of self-determination was reached in the end.
When the non-intervention principle was discussed, one superpower (USSR) remarked that the other (USA) had in recent times assumed the functions of an international policeman, and was practicing open and systematic intervention in the affairs of other States. Such behavior motivated the smaller States to call for a complete prohibition of all forms of inter-State intervention. Somewhat confusingly, the prohibition to use force was also discussed in this context, as the most intrusive form of such intervention. This makes perfect sense, of course, but the Assembly had already chosen to treat the prohibition on the use of inter-State force as a separate principle. Less intrusive forms, such as coercive economic measures, were also considered as prohibited. Some States remarked that the distinction between coercive measures, and the legitimate persuasion and bargaining with which States usually sought to influence each other, was hard to make. In any case, the most fundamental debate was not related to non-intervention at all. Rather, it was about the question as to what extent the Committee was bound by the Declaration on the Inadmissibility of Intervention, adopted earlier by the General Assembly. This led to some very interesting theories on the law-making power of General Assembly resolutions. Some States had no problem in seeing General Assembly resolutions as evidence of a general practice accepted, at least by those voting in favour of such resolution, as law. Others, however, disagreed, because the Assembly had no formal law-making power. No final text of the principle was adopted.
Remaining Reports
The Special Committee published three more reports:
These will be looked at in my next post.